Loading...
HomeMy WebLinkAbout020801 RES - 10/24/1989RESOLUTION APPROVING AN AGREEMENT OF THE CORPUS CHRISTI INDUSTRIAL DEVELOPMENT CORPORATION WITH RESPECT TO THE ISSUANCE OF BONDS FOR DE DIETRICH (USA), INC. WHEREAS, Corpus Christi Industrial Development Corporation (the "Corporation") was created under the auspices of the City of Corpus Christi; and WHEREAS, notice of a public hearing on the Project (as defined in the Agreement attached hereto), as required by Section 147 of the Internal Revenue Code of 1986, as amended (the "Code"), was published in a newspaper of general circulation in the City at least 14 days prior to such public hearing; and WHEREAS, it is deemed necessary and advisable that this Resolution be adopted. THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI THAT: Section 1. The "First Amendatory Loan Agreement by and between Corpus Christi Industrial Development Corporation and De Dietrich (USA), Inc.", in substantially the form and substance as attached to this Resolution and made a part hereof for all purposes, is hereby approved, and Bonds in the principal amount of $2,000,000, may be issued pursuant thereto for the purpose of paying the cost of acquiring and constructing or causing to be acquired and constructed the Project as defined and described therein, which Project is in compliance with the Development Corporation Act of 1979, as amended, and the rules promulgated thereunder by the Texas Department of Commerce; and said Project is hereby approved. Section 2. The resolution adopted by the Corporation authorizing the execution of the Loan Agreement and First Supplemental Indenture of Trust by and between the Corporation and Texas Commerce Bank -Corpus Christi, National Association, as Trustee, dated October 15, 1989, and authorizing the sale of the Bonds, in substantially the form and substance attached to this Resolution and made a part hereof for all purposes, are hereby specifically approved, and the Bonds may be issued as provided for therein. Section 3. The City Council of the City of Corpus Christi hereby authorizes the Mayor to approve the issuance of the aforesaid Bonds in the principal amount of $2,000,000 for De Dietrich (USA), Inc., and such approval shall be solely for the purposes of Section 147 of the Code, as amended, and the City of Corpus Christi, Texas shall have no liabilities for the payment of the Bonds nor shall any of its assets be pledged to the payment of the Bonds. ��r �i MlCR°F►LMED ATTEST: an.c, 04, CiLy Secretary MAYOR `"- APPROVED: i37`:i DAY OF C^C.. , 13 HAL GEORGE, CITY ATTORNEY By Assistant City Attorney 9 THE CITY OF CORPUS CHRISTI, TEXAS 99.066.01 Corpus Christi, Texas day of The above resolution was passed by the following vote: Betty N. Turner David Berlanga, Sr. Leo Guerrero Tom Hunt Edward A. Martin Joe McComb Clif Moss Mary Rhodes Frank Schwing, Jr. 20801 , 198 FIRST AMENDATORY LOAN AGREEMENT THIS FIRST AMENDATORY LOAN AGREEMENT (this "Amendatory Agreement") dated as of October 15, 1989, by and between CORPUS CHRISTI INDUSTRIAL DEVELOPMENT CORPORATION (the "Issuer"), a nonstock, nonprofit industrial development corporation organized and existing under the laws of the State of Texas, including particularly the Development Corporation Act of 1979 (the "Act"), Article 5190.6, V.A.T.C.S., as amended, and DE DIETRICH (USA), INC., a corporation duly organized and existing under the laws of the State of Deleware (the "Company"); WITNESSETH: WHEREAS, pursuant to and in accordance with the provisions of the Act, the Issuer and the Company executed and delivered a Loan Agreement, dated as of October 15, 1988 (the "Original Agreement"), whereunder the Issuer agreed to issue bonds and loan the proceeds thereof to the Company for the purpose of financing all or a part of the Cost of the Project (each as defined in the Original Agreement); and WHEREAS, in connection therewith, the Issuer executed and delivered an Indenture of Trust, dated as of October 15, 1988 (the "Original Indenture") by and between the Issuer and Texas Commerce Bank - Corpus Christi, National Association, as trustee (the "Trustee"); and WHEREAS, pursuant to and in accordance with the provisions of the Act and the Indenture, the Issuer issued and delivered its Variable Rate 7 -Day Demand Industrial Development Revenue Bonds (De Dietrich (USA), Inc. Project) Series 1988, in the aggregate principal amount of $7,000,000 (the "Series 1988 Bonds"); and WHEREAS, the Issuer loaned the proceeds of the Series 1988 Bonds to the Company in accordance with the terms of the Original Agreement; and WHEREAS, the Original Agreement provided that, at the request of the Company, and upon satisfaction of certain conditions set forth in the Original Agreement, the Issuer was authorized to issue additional bonds in an amount not to exceed $2,000,000 which, together with the proceeds of the Series 1988 Bonds, would be used by the Company to finance a part of the Cost of the Project; and WHEREAS, Societe Generale, New York branch, as issuer of the original Letter of Credit (as defined in the Original Agreement), has notified the Issuer, the Trustee and the Company of its consent to the issuance of additional bonds in the aggregate principal amount of $2,000,000 (the "Series 1989 Bonds"); and WHEREAS, in order to authorize the issuance of the Series 1989 Bonds, the Issuer and the Company find it necessary to execute this Amendatory Agreement. NOW, THEREFORE, THIS FIRST AMENDATORY LOAN AGREEMENT WITNESSETH: SECTION 1. This Amendatory Agreement is supplemental to and amendatory of the Original Agreement, and is executed in accordance with Article IX of the Original Agreement, Article XII of the Original Indenture and the Act. SECTION 2. That, except as provided below, all words and phrases defined in Article I of the Original Indenture and Article I of the Original Agreement shall have the same meanings in this Amendatory Agreement as such terms are given therein. In addition, the following words and phrases shall have the following meanings unless the context or use indicates another or different meaning or intent: "Agreement" means the Original Agreement and the Amendatory Agreement, as from time to time supplemented and amended. "Amendatory Agreement" means the First Amendatory Loan Agreement dated as of October 15, 1989, by and between the Issuer and the Company. "Bonds" means, collectively, the the Series 1989 Bonds. Series 1988 Bonds and "Indenture" means the Original Indenture and the Supplemental Indenture, as from time to time supplemented and amended. "Note" means, collectively, the two promissory notes of the Company made payable to the Trustee, delivered by the Company pursuant to Section 4.2(a) of the Agreement, in order to evidence the obligation of the Company to repay the loan made under the Agreement, the payments thereon are provided to be sufficient to pay the principal of, premium, if any, and interest on the Bonds, or the purchase price of the Bonds, when due. "Original of October 15 Company. "Original as of October Trustee. Agreement" means the Loan Agreement dated as , 1988, by and between the Issuer and the Indenture" means the Indenture of Trust dated 15, 1988, by and between the Issuer and the "Series 1988 Bonds" means the bonds of the Issuer, in the aggregate principal amount of $7,000,000 issued and delivered by the Issuer on December 8, 1988 pursuant to the terms of the Original Indenture. "Series 1989 Bonds" means the bonds of the Issuer, in the aggregate principal amount of $2,000,000, issued pursuant to the terms of the Indenture. "Supplemental Indenture" means the First Supplemental Indenture of Trust dated as of October 15, 1989, by and between the Issuer and the Trustee. SECTION 3. The Issuer and the Company hereby reaffirm and restate all representations, warranties and covenants made by the Issuer and the Company, respectively, in the Original Agreement. SECTION 4. Upon the issuance of the Series 1989 Bonds, the provisions of Section 3.7 of the Original Agreement shall no longer have any force or effect. COO at " Issuance oR` . Mc SECTION 5. The Company agrees to issue a promissory Ot acieNin, note in the principal amount of $2,000,000. The promissory k j note shall be dated the date of issuance and delivery of the Series 1989 Bonds, shall mature on NOV. J , 2003, except as the provisions of the Agreement with respect to prepayment may become applicable thereto, and shall be governed by the provisions of the Agreement, including particularly Section 4.2. SECTION 6. The form of the promissory note to be executed by the Company shall be in substantially the same form as Exhibit A attached hereto and made a part hereof. SECTION 7. The Company hereby covenants and agrees that a substitute Letter of Credit will be delivered to the Trustee or its designee, in an amount equal to 103% of the outstanding principal amount of the Bonds plus an amount equal to the maximum interest to accrue on the Bonds then outstanding for seventy (70) days at the maximum rate of interest of fifteen percent (15%) per annum, at the time of the delivery of the Series 1989 Bonds. SECTION 8. Save and except as amended and supplemented by this Amendatory Agreement, the Original Agreement shall remain in full force and effect. SECTION 9. This Amendatory Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. IN WITNESS WHEREOF, Corpus Christi Industrial Develop- ment Corporation and De Dietrich (USA), Inc., have caused this Amendatory Agreement to be executed in their respective names and their respective seals to be hereunto affixed and attested by their duly authorized officers, all as of the day first above written. CORPUS CHRISTI INDUSTRIAL DEVELOPMENT CORPORATION By President (SEAL) ATTEST: Secretary DE DIETRICH (USA), INC. By Its President (SEAL) ATTEST: Its Secretary DE DIETRICH (USA), INC. PROMISSORY NOTE FOR VALUE RECEIVED, DE DIETRICH (USA), INC., a Delaware corporation (the "Company"), hereby promises to pay to Texas Commerce Bank - Corpus Christi, National Association or its successors and assigns (the "Trustee"), in lawful money of the United States of America in Federal or other immediately available funds the principal amount of Two Million Dollars ($2,000,000) due November 1, 2008; and to pay interest from the date hereof on the unpaid principal balance hereof at such rates equal to the interest rates from time to time borne by the Bonds (as hereinafter de- fined), calculated during the Short Term Rate Period (as defined in the Agreement hereinafter referred to) on the basis of a calendar year consisting of 365 or 366 days, as the case may be, and calculated on the actual number of days elapsed, and calculated during the Fixed Rate Period (as defined in the Agreement hereinafter referred to) on the basis of a calendar year consisting of 360 days of twelve (12) thirty -day months, payable in lawful money of the United States of America in Federal or other immediately available funds during said Short Term Rate Period on 1, 1989, on the first day of each calendar month thereafter and on the date of the commencement of said Fixed Rate Period, until the earlier of the date of the commence- ment of said Fixed Rate Period or the date on which said principal amount is paid, and during said Fixed Rate Period on the first day of the January or July immediately following the commencement of said Fixed Rate Period and on the first day of each January and July thereafter, until said principal amount is paid. This Promissory Note shall bear interest on any overdue installment of principal hereof, premium, if any, or inter- est hereon (to the extent legally enforceable) at a rate equal to the interest rate borne by this Promissory Note from time to time from the due date thereof until paid. This Promissory Note is issued pursuant to the Loan Agreement dated as of October 15, 1988, by and between the Corpus Christi Industrial Development Corporation (the "Issuer") and the Company, as amended and supplemented by the First Amendatory Loan Agreement, dated as of October 15, 1989, by and between the Issuer and the Company (collec- tively the "Agreement"), and is issued in consideration of the loan made thereunder and to evidence the obligations of the Company set forth in Section 4.2(a) and 4.2(e) thereof. The Company covenants and agrees that the payments of principal hereof and premium, if any, and interest hereon will be sufficient to enable the Issuer to pay when due the principal of, premium, price, on its Variable ment Revenue Bonds (De 1989 in the aggregate "Bonds"). if any, and interest, or the purchase Rate 7 -Day Demand Industrial Develop - Dietrich (USA), Inc. Project) Series principal amount of $2,000,000 (the Each payment of principal of, premium, if any, and interest on, or the purchase price of, this Promissory Note shall at all times be sufficient to pay the total amount of principal of (whether at maturity or upon acceleration or prior redemption), premium, if any, and interest on, or the purchase price of, the Bonds on the same date. The total payments to be made by the Company hereunder shall be sufficient to pay when due the principal of (whether at maturity or upon acceleration or prior redemption) or purchase price of, premium, if any, and interest on, or the purchase price of, the Bonds; provided, that the Excess Amount (as hereinafter defined) held by the Trustee (as defined in the Agreement) in the Bond Fund or Bond Purchase Fund on a payment date shall be credited against the payment due on such date; and provided further, that, subject to the provisions of the immediately following sentence, if at any time the amount held by said Trustee in said Bond Fund or Bond Purchase Fund should be sufficient (and remain sufficient) to pay at the times required the principal or purchase price of, interest and premium, if any, on, or the purchase price of, the Bonds then remaining unpaid, the Company shall not be obligated to make any further payments under the provisions of this Promissory Note. Notwith- standing the provisions of the preceding sentence, if on any day the Excess Amount held by said Trustee in said Bond Fund or Bond Purchase Fund is insufficient to make the then required payments of principal (whether at maturity or upon redemption prior to maturity or acceleration), interest and premium if any, on, or purchase price of, the Bonds on such date, the Company shall forthwith pay such deficiency. The term "Excess Amount" as of any interest payment date shall mean (i) the amount in said Bond Fund on such date in excess of the amount required for payment of the purhcase price of the Bonds, or the principal of the Bonds which theretofore has matured at maturity or on a date fixed for redemption and premium, if any, on such Bonds including in all cases where Bonds have not been presented for payment and paid, or for the payment of interest which has theretofore come due in all cases where interest checks have not been presented for payment and paid or (ii) the amount in the Bond Purchase Fund in excess of the amount required for payment of the purchase price of the Bonds on such purchase date. This Promissory Note is entitled to the benefits and is subject to the conditions of the Agreement. The obligations of the Company to make the payments required hereunder shall be absolute and unconditional without any defense or set- off, counterclaim or recoupment by reason of any default by the Issuer under the Agreement or under any other agreement between the Company, the Issuer, or said Trustee, or out of any indebtedness or liability at any time owing to the Company by the Issuer or the Trustee, or for any other reason. This Promissory Note is subject to mandatory prepayment as a whole, and optional prepayment as a whole or in part, as provided in Article VII of the Agreement. In certain events, on the conditions, in the manner and with the effect set out in the Agreement, the principal installments of this Promissory Note may be declared due and payable before the stated maturity thereof, together with accrued interest thereon. Reference is hereby made to the Agreement for a complete statement of the terms and condi- tions under which the maturity of the principal installments of this Promissory Note may be accelerated. IN WITNESS WHEREOF, the Company has caused this Promis- sory Note to be duly executed, attested, sealed and deliv- ered as of , 1989. (SEAL) Attest: By DE DIETRICH (USA), INC. By RESOLUTION AUTHORIZING THE EXECUTION OF A FIRST AMENDATORY LOAN AGREEMENT, A FIRST SUPPLEMENTAL INDENTURE OF TRUST, AND OTHER DOCUMENTS RELATED TO ISSUANCE OF CORPUS CHRISTI INDUSTRIAL DEVELOPMENT CORPORATION VARIABLE RATE 7 -DAY DEMAND INDUSTRIAL DEVELOPMENT REVENUE BONDS (DE DIETRICH (USA), INC. PROJECT) SERIES 1989; AUTHORIZING THE ISSUANCE OF SAID BONDS; AND RESOLVING OTHER MATTERS RELATED THERETO WHEREAS, Corpus Christi Industrial Development Corporation (the "Issuer") is a nonstock, nonprofit industrial development corporation organized and existing under the laws of the State of Texas, including particularly the Development Corporation Act of 1979, as amended (Article 5190.6, V.A.T.C.S.), with the power and authority to exercise all rights, privileges and functions essential to the accomplishment of the purposes for which it was organized; and WHEREAS, the Issuer is a duly constituted public instrumentality of the City of Corpus Christi, Texas (the "Govern- mental Unit"), a political subdivision of the State of Texas, within the meanings of the regulations of the United States Treasury Department (the "Regulations") and the rulings of the Internal Revenue Service prescribed and promulgated pursuant to Section 103 of the Internal Revenue Code of 1986, as amended (the "Code"), and the Issuer is functioning and acting solely on behalf of the Governmental Unit; and WHEREAS, the Issuer is empowered by the Act to promote manufacturing development and expansion, and to issue revenue bonds, including refunding bonds, therefor; and WHEREAS, De Dietrich (USA), Inc. (the "User") has requested that the Issuer finance the acquisition, construction and equipping of a manufacturing facility located in the unincorporated area of Nueces County, Texas, bordering on the Governmental Unit, for use in the glassing of large pressure vessels (the "Project"); and WHEREAS, the Commissioners Court of Nueces County previously has adopted a resolution consenting to the Issuer issuing bonds to finance the Project; and WHEREAS, in order to enable the User to finance the Project, the Issuer and the User executed a Loan Agreement (the "Agreement") dated as of October 15, 1988; and WHEREAS, to borrow money to assist in financing the Project, the Issuer executed an Indenture of Trust (the "Indenture") dated as of October 15, 1988, between the Issuer and Texas Commerce Bank - Corpus Christi, N.A. (the "Trustee"); and WHEREAS, the Issuer delivered its Variable Rate 7 -Day Demand Industrial Development Revenue Bonds (De Dietrich (USA), Inc. will have a direct, positive, and favorable impact on employment in the Governmental Unit, and (iii) that the Project was and is in furtherance of the public purposes as set forth in the Act. 13. That the President or the Vice President of the Board is hereby authorized to apply to the Texas Department of Commerce for approval of the Amendment; all officers of the Board are authorized to execute all instruments necessary or appropriate to this transaction and the issuance of the Bonds authorized pursuant to the Agreement; and the President or the Vice President of the Board further is authorized to have control of the Bonds initially issued and delivered and all necessary records and proceedings pertaining to the Bonds pending their delivery and their investigation, examination and approval by the Attorney General of Texas, and their registration by the Comptroller of Public Accounts of Texas. Upon registration of the Bonds said Comptroller (or a deputy designated in writing to act for said Comptroller) shall manually sign the Comptroller's Registration Certificate attached to such Bonds, and the seal of said Comptroller shall be impressed, or placed in facsimile, on such Certificate. 14. That this Resolution shall take effect immediately upon its adoption. EXHIBIT FIRST SUPPLEMENTAL INDENTURE OF TRUST THIS FIRST SUPPLEMENTAL INDENTURE OF TRUST (this "Supplemental Indenture") dated as of October 15, 1989, by and between CORPUS CHRISTI INDUSTRIAL DEVELOPMENT CORPOR- ATION (the "Issuer"), a nonstock, nonprofit industrial development corporation organized and existing under the laws of the State of Texas, including particularly the Development Corporation Act of 1979 (the "Act"), Article 5190.6, V.A.T.C.S., as amended, and TEXAS COMMERCE BANK - CORPUS CHRISTI, NATIONAL ASSOCIATION, a banking association duly organized and existing under the laws of the United States of America, with its principal corporate trust office located in Corpus Christi, Texas, as Trustee (the "Trustee"); WITNESSETH: WHEREAS, pursuant to and in accordance with the provisions of the Act, the Issuer and the Trustee executed and delivered an Indenture of Trust, dated as of October 15, 1988 (the "Original Indenture"); and WHEREAS, pursuant to the provisions of the Act, the terms of the Indenture, and at the request of De Dietrich (USA), Inc., a corporation organized and existing under the laws of the State of Deleware (the "Company"), the Issuer issued its Variable Rate 7 -Day Demand Industrial Development Revenue Bonds (De Dietrich (USA), Inc. Project) Series 1988, in the aggregate principal amount of $7,000,000 (the "Series 1988 Bonds"), and the Series 1988 Bonds were delivered to the purchaser thereof on December 8, 1988; and WHEREAS, the Issuer loaned the proceeds of the Series 1988 Bonds to the Company pursuant to the terms of a Loan Agreement, dated as of October 15, 1988, by and between the Issuer and the Company (the "Original Agreement"), and the Company covenanted in the Original Agreement to use the proceeds of the Series 1988 Bonds to finance a part of the Cost of the Project (each as defined in the Original Agreement); and WHEREAS, the Original Agreement provided that, at the request of the Company, and upon satisfaction of certain conditions set forth in the Original Agreement, the Issuer was authorized to issue additional bonds in an amount not to exceed $2,000,000 which, together with the proceeds of the Series 1988 Bonds, would be used by the Company to finance a part of the Cost of the Project; and 1 WHEREAS, Societe Generale, New York branch, as issuer of the original Letter of Credit (as defined in the Original Agreement), has notified the Issuer, the Trustee and the Company of its consent to the issuance of additional bonds in the aggregate principal amount of $2,000,000 (the "Series 1989 Bonds"); and WHEREAS, in order to authorize the issuance of the Series 1989 Bonds, the Issuer and the Trustee find it necessary to execute this Supplemental Indenture. NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE OF TRUST WITNESSETH: SECTION 1. This Supplemental Indenture is supplemental to and amendatory of the Original Indenture, and is executed in accordance with Article XI of the Original Indenture and the Act. SECTION 2. That, except as provided below, all words and phrases defined in Article I of the Original Indenture and Article I of the Original Agreement shall have the same meanings in this Supplemental Indenture as such terms are given therein. In addition, the following words and phrases shall have the following meanings unless the context or use indicates another or different meaning or intent: "Agreement" means the Original Agreement and the Amendatory Agreement, as from time to time supplemented and amended. "Amendatory Agreement" means the First Amendatory Loan Agreement dated as of October 15, 1989, by and between the Issuer and the Company. "Bonds" means, collectively the Series 1988 Bonds and the Series 1989 Bonds. "Indenture" means the Original Indenture and the Supplemental Indenture, as from time to time supplemented and amended. "Note" means, collectively, the two promissory notes of the Company made payable to the Trustee, delivered by the Company pursuant to Section 4.2(a) of the Agreement, in order to evidence the obligation of the Company to repay the loan made under the Agreement, the payments thereon are provided to be sufficient to pay the principal of, premium, if any, and interest on the Bonds, or the purchase price of the Bonds, when due. "Original Agreement" means the Loan Agreement dated as of October 15, 1988, by and between the Issuer and the Company. 2 "Original Indenture" means the Indenture of Trust dated as of October 15, 1988, by and between the Issuer and the Trustee. "Series 1988 Bonds" means the the aggregate principal amount of delivered by the Issuer on December terms of the Original Indenture. "Series 1989 Bonds" means the the aggregate principal amount pursuant to the terms of the Indentu bonds of the Issuer, in $7,000,000, issued and 8, 1988 pursuant to the bonds of the Issuer, in of $2,000,000, issued re. "Supplemental Indenture" means the First Supplemental Indenture of Trust dated as of October 15, 1989, by and between the Issuer and the Trustee. SECTION 3. The Series 1989 Bonds shall be designated "Corpus Christi Industrial Development Corporation Variable Rate 7 -Day Demand Industrial Development Revenue Bonds (De Dietrich (USA), Inc. Project) Series 1989". All terms and conditions set forth in the Original Indenture shall govern the issuance of the Series 1989 Bonds, provided, that the Series 1989 Bonds shall be dated , 1989, the interest on the Series 1989 Bonds shall be payable during the Short Term Rate Period commencing on 1, 1989, and that if the date of authentication on the Series 1989 Bonds shall be prior to 1, 1989, the Series 1989 Bonds shall bear interest from the date of their initial delivery. SECTION 4 The form of the Series 1989 Bonds, the certificate of authentication to be endorsed on the Bonds and the form of assignment to be endorsed on the Bonds, are to be in substantially the forms, with appropriate vari- ation, omissions and insertions as permitted or required by the Indenture, shall be in substantially the form attached hereto as Exhibit A and made a part hereof. SECTION 5. Upon the issuance of the Series 1989 Bonds, the provisions of Section 2.10 of the Original Indenture shall no longer have any force or effect. SECTION 6. The parties hereto hereby reaffirm and restate all covenants made thereby in the Original Indenture, including specifically the covenant to give notice to the Texas Department of Commerce in the manner and for the purposes provided in Section 14.3 of the Original Indenture. SECTION 7. The Issuer hereby acknowledges that all of the proceeds of the Series 1989 Bonds shall be deposited to the credit of the Construction Fund. 3 SECTION 8. Save and except as amended and supplemented by this Supplemental Indenture, the Original Indenture shall remain in full force and effect. SECTION 9. This Supplemental Indenture may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. IN WITNESS WHEREOF, the Corpus Christi Industrial Development Corporation and Texas Commerce Bank - Corpus Christi, National Association, have caused this First Supplemental Indenture of Trust to be executed in their respective names and their respective seals to be hereunto affixed and attested by their duly authorized officers, all as of the day first above written. (SEAL) ATTEST: By Secretary (SEAL) ATTEST: CORPUS CHRISTI INDUSTRIAL DEVELOPMENT CORPORATION EXHIBI President TEXAS COMMERCE BANK - CORPUS CHRISTI, NATIONAL ASSOCIATION as Trustee By Its Its 4 EXHIBIT A UNITED STATES OF AMERICA STATE OF TEXAS CORPUS CHRISTI INDUSTRIAL DEVELOPMENT CORPORATION VARIABLE RATE 7 -DAY DEMAND INDUSTRIAL DEVELOPMENT REVENUE BOND (DE DIETRICH (USA), INC. PROJECT) SERIES 1989 No. $ CORPUS CHRISTI INDUSTRIAL DEVELOPMENT CORPORATION (the "Issuer"), being a nonstock, nonprofit industrial develop- ment corporation organized and existing under the laws of the State of Texas, including particularly Article 5190.6., V.A.T.C.S., as amended (the "Act"), and acting on behalf of the City of Corpus Christi, Texas, for value received, hereby promises to pay solely and only from the sources and as hereinafter provided, to or registered assigns, the principal sum of Dollars ($ ), payable on November 1, 2008, except as the provisions hereinafter set forth with respect to redemption prior to maturity may become applicable hereto, and in like manner to pay interest on said sum, at the rate that is in effect from time to time, in accordance with the provisions hereof. During any Short Term Rate Period, as hereinafter defined, interest hereon shall be calculated on the basis of a calendar year consisting of 365 or 366 days, as the case may be, and on the actual number of days elapsed, and shall be payable on 1, 1989, and on the first day of each calendar month thereafter and on the Conversion Date, as hereinafter defined (each a "Short Term Rate Interest Payment Date"), until the earlier of the Conversion Date or until the principal sum hereof becomes due and payable. During the Fixed Rate Period, as hereinafter defined, interest hereon shall be calculated on the basis of a calendar year consist- ing of 360 days of twelve (12) thirty -day months, payable on the first day of the January or July immediately following the commencement of the Fixed Rate Period and on the first day of each January and July thereafter (each a "Fixed Rate Interest Payment Date"), until the principal sum hereof becomes due and payable. Interest shall be payable on any overdue installment of principal, premium, if any, or (to the extent that such interest shall be legally enforceable) interest on this Bond at the rate of interest from time to time borne by this Bond from the due date thereof until paid. Principal of and premium, if any, on this Bond shall be payable in lawful money of the United States of America at the principal corporate trust office of Texas Commerce Bank National Association, as paying agent, or its successor (the "Paying Agent"), or at the office of its agent, Texas Commerce Trust Company of New York, in New York, New York. Interest on this Bond shall be payable to the registered owner hereof as of the Record Date (as hereinafter defined). Payments of interest on this Bond shall be made by check or draft of the Paying Agent mailed on the applicable interest payment date to the registered owner hereof at his address as it appears on the registration books of the Issuer kept by the Paying Agent, as registrar ("Bond Registrar"), or at such other address as is furnished to the Paying Agent in writing by such regis- tered owner no later than the close of business on the Record Date; provided, that, on or prior to the Conversion Date, as hereinafter defined, payments of interest on this Bond shall be made by wire transfer to the registered owner of this Bond in the event that the registered owner hereof is the registered owner of at least $1,000,000 in principal amount of the Bonds (as hereinafter defined) as of the close of business on the Record Date immediately preceding the applicable interest payment date and such registered owner shall have given written notice to the Paying Agent on or before the fifth Business Day (as hereinafter defined) immediately preceding such Record Date, directing the Paying Agent to make such payments of interest by wire transfer and identifying the location and number of the account to which such payments should be wired. As used herein, the term "Record Date" shall mean, during the Short Term Rate Period the third day prior to a Short Term Rate Interest Payment Date on this Bond, and during the Fixed Rate Period the fifteenth day of the calendar month immediately preceding a Fixed Rate Interest Payment Date on this Bond. The owner hereof shall never have the right to demand payment of this Bond out of any funds raised or to be raised by taxation or from any sources whatsoever except the payment and amounts described in this Bond, the Indenture (as hereinafter defined), the Agreement (as hereinafter defined), and payments under the Letter of Credit (as hereinafter defined). Except for the lien on and the assignment and pledge of such property, payments, and amounts, no property of the Issuer is encumbered by any lien or security interest for the benefit of the owner of this Bond. Neither the State of Texas, the City of Corpus Christi, Texas, nor any other political corporation, subdiv- ision, or agency of the State of Texas, nor the Board of Directors of the Issuer, either individually or collec- tively, shall be obligated to pay the principal of this Bond, any premium or payment with respect to this Bond, or the interest hereon; and neither the faith and credit, nor the taxing power, of the State of Texas, the City of Corpus Christi, Texas, nor any other political corporation, sub- division, or agency of the State of Texas, is pledged to the payment of the principal of this Bond, any premium or payment with respect to this Bond, or the interest hereon. Reference is hereby made to the further provisions of this Bond set forth on the reverse side hereof and such further provisions shall for all purposes have the same effect as if set forth at this place. Except as otherwise provided in the Indenture, this Bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Inden- ture until the certificate of authentication hereon shall have been duly executed either by the Trustee or by the Paying Agent, as Authenticating Agent. This Bond is issued with the intent that the laws of the State of Texas will govern its construction. IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions and things required to exist, happen and be performed precedent to and in the execution and delivery of the Indenture and the issuance of this Bond do exist, have happened and have been performed in due time, form and manner as required by law; and that the issuance of this Bond and the series of which it forms a part does not exceed or violate any constitutional or statutory limitation. IN WITNESS WHEREOF, CORPUS CHRISTI INDUSTRIAL DEVELOP- MENT CORPORATION has caused this Bond to be signed in its name and on its behalf by the manual or facsimile signature of its President or Vice President and its corporate seal to be affixed, imprinted or reproduced hereon and attested by the manual or facsimile signature of its Secretary, all as of , 1989. CORPUS CHRISTI INDUSTRIAL DEVELOPMENT CORPORATION EXHIBIT By: President [SEAL] Attest: Secretary This Bond is one of the Bonds of the issue referred to in the within mentioned Indenture; and that this Bond has been issued in exchange for or replacement of a bond or bonds, or a portion of a bond or bonds, which originally was approved by the Attorney General of the State of Texas and registered by the Comptroller of Public Accounts of the State of Texas. Date of Authentication: Texas Commerce Bank- or Texas Commerce Bank Corpus Christi, National National Association Association as Authenticating Agent as Trustee By: By: Authorized Signatory Authorized Signatory *COMPTROLLER'S REGISTRATION CERTIFICATE: REGISTER NO. I hereby certify that this bond has been examined, certified as to validity, and approved by the Attorney General of the State of Texas, and that this bond has been registered by the Comptroller of Public Accounts of the State of Texas. Witness my signature and seal this Comptroller of Public Accounts of the State of Texas *To appear on initial bond(s) only. This Bond is one of an authorized series of Bonds in the aggregate principal amount of $2,000,000 (the "Series 1989 Bonds") issued for the purpose of loaning the proceeds to De Dietrich (USA), Inc., a corporation organized and existing under the laws of the State of Delaware (the "Company"), for the purpose of providing funds, together with other available funds of the Company, TO PAY PART OF THE COSTS OF ACQUIRING, CONSTRUCTING, EQUIPPING AND FURNISHING OR CAUSING TO BE ACQUIRED, CONSTRUCTED, EQUIPPED AND FURNISHED A MANUFACTURING PROJECT (THE "PROJECT") FOR THE COMPANY FOR THE SPECIFIC PURPOSE OF THE PROMOTION AND ENCOURAGEMENT OF EMPLOYMENT AND THE PUBLIC WELFARE. The Series 1989 Bonds are all issued under and, together with the Issuer's Variable Rate 7 -Day Demand Industrial Development Revenue Bonds (De Dietrich (USA), Inc. Project) Series 1988, issued in the aggregate principal amount of $7,000,000 (the "Series 1988 Bonds"), are equally and ratably secured by and entitled to the protection of an Indenture of Trust dated as of October 15, 1988, as amended and supplemented by a First Supplemental Indenture of Trust dated as of October 15, 1989 (which indenture, as from time to time amended and supplemented, is herein referred to as the "Indenture"), duly executed and delivered by the Issuer to Texas Commerce Bank - Corpus Christi, National Association, as trustee (the "Trustee"). The Series 1988 Bonds and the Series 1989 Bonds are hereafter referred to as the "Bonds". Reference is hereby made to the Indenture for a description of the rights, duties and obligations of the Issuer, the Trustee and the owners of the Bonds and the terms upon which the Bonds are issued and secured. The terms and conditions of the loan of the proceeds of the Bonds to the Company for the financing thereof and the repayment of said loan are contained in a Loan Agreement dated as of October 15, 1988, as amended and supplemented by a First Amendatory Loan Agreement dated as of October 15, 1989, by and between the Issuer and the Company (which agreement, as from time to time amended and supplemented, is hereinafter referred to as the "Agreement"). To evidence its obligation to repay the loan of the proceeds of the Series 1989 Bonds, the Company has executed and delivered its Promissory Note identical to the terms of the Series 1989 Bonds as to principal amount and maturity date, interest rates and payment dates and prepayment (or redemp- tion) provisions. The Promissory Note executed and delivered in connection with the Series 1989 Bonds and the Promissory Note of the Company previously executed and delivered in connection with the Series 1988 Bonds are collectively referred to herein as the "Note". Except as otherwise provided in the Indenture, the Bonds are issuable only as fully registered Bonds without coupons in denominations of $100,000 and any integral multiple thereof during the Short Term Rate Period, and in denominations of $5,000 and any integral multiple thereof during the Fixed Rate Period. This Bond is transferable by the registered owner hereof in person or by his attorney duly authorized in writing at the principal corporate trust office of the Paying Agent, but only in the manner, subject to the limitations and upon payment of the charges provided in the Indenture, and upon surrender and cancellation of this Bond. Upon such transfer a new Bond or Bonds of authorized denomination or denominations for the same aggregate principal amount will be issued to the transferee in exchange herefor. The Issuer, the Trustee and the Paying Agent may deem and treat the registered owner hereof as the absolute owner hereof for the purpose of receiving payment of or on account of principal hereof and premium, if any, hereon and interest due hereon and for all other purposes, and neither the Issuer, the Trustee nor the Paying Agent shall be affected by any notice to the contrary. Subject to the limitations and upon payment of the charges provided in the Indenture, and upon surrender and cancellation thereof, Series 1989 Bonds may be exchanged for a like aggregate principal amount of Series 1989 Bonds of other authorized denominations. The Paying Agent shall not be required to transfer or exchange any Series 1989 Bond after notice calling such Series 1989 Bond or portion thereof for redemption prior to maturity has been given as herein provided, nor during the period of ten (10) days next preceding the giving of such notice of redemption. The Series 1989 Bonds are issued pursuant to and in full compliance with the laws of the State of Texas, particularly the Development Corporation Act of 1979, as amended (Article 5190.6, V.A.T.C.S.), and pursuant to a resolution adopted by the Issuer on , 1989. THE BONDS SHALL BE LIMITED OBLIGATIONS OF THE ISSUER. THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS SHALL BE PAYABLE SOLELY OUT OF CERTAIN REVENUES AND RECEIPTS DERIVED FROM THE AGREEMENT AND THE NOTE AND AS OTHERWISE PROVIDED IN THE INDENTURE. THE BONDS SHALL NEVER CONSTITUTE AN INDEBTEDNESS OF THE ISSUER WITHIN THE MEANING OF ANY STATE CONSTITUTIONAL PROVISION OR STATUTORY LIMITATION, AND SHALL NOT CONSTITUTE NOR GIVE RISE TO A GENERAL LIABILITY OF THE ISSUER OR AGAINST THE GENERAL CREDIT OR TAXING POWERS OF THE CITY OF CORPUS CHRISTI TEXAS. Neither the faith and credit nor the taxing power of the City of Corpus Christi, Texas, the State of Texas, or any political subdivision thereof, is pledged to the payment of the principal of the Bonds, premium, if any, or the interest thereon or other costs incident thereto. No recourse shall be had for the payment hereof against any director, officer, agent, attor- ney or employee of the Issuer. Payments pursuant to the Agreement and the Note and as otherwise provided in the Indenture sufficient for the prompt payment, when due, of the principal and of interest on the Bonds are to be paid to the Trustee for the account of the Issuer and deposited in a special account credited by the Issuer and designated "Corpus Christi Industrial Development Corporation Bond Fund (De Dietrich (USA), Inc. Project)" and such payments have been duly pledged and assigned for that purpose, and in addition certain rights of the Issuer under the Agreement have been assigned to the Trustee to secure payment of such principal and interest under the Indenture. Societe Generale, New York Branch, New York, New York, has issued an irrevocable, transferable, direct pay Letter of Credit dated the date of delivery of the Bonds in favor of the Trustee for the benefit of the owners from time to time of the Bonds, supporting the payment of the unpaid principal amount of the Bonds or the purchase price of the Bonds, and in either case up to seventy (70) days of interest on the Bonds, calculated at the rate of 15% per annum, and an amount equal to three percent (3%) of the principal amount of the Bonds. The Letter of Credit, together with any substitute Letter of Credit, is hereinaf- ter referred to as the "Letter of Credit" and Societe Generale, New York Branch, New York, New York, together with the issuer of any substitute Letter of Credit, is hereinafter referred to as the "Bank". This Bond shall bear interest on the unpaid principal balance hereof until paid at the rates provided below. This Bond shall bear interest at the Short Term Rate (as hereinafter defined) during the Short Term Rate Period from the Short Term Rate Interest Payment Date to which interest on this Bond has been paid or duly provided for immediately preceding the date of authentication hereof, unless (a) such date of authentication shall be prior to 1, 1989, in which case this Bond shall bear interest from the date of the initial delivery of this Bond, or (b) such date of authentication shall be a Short Term Rate Interest Payment Date to which interest on this Bond has been paid or duly provided for, in which case this Bond shall bear interest from such date; and shall bear interest at the Fixed Rate (as hereinafter defined) during the Fixed Rate Period from the first day of the January or July to which interest on this Bond has been paid or duly provided for immediately preceding the date of authentication hereof, unless (a) such date of authentication shall be prior to the first day of the January or July immediately following the date of com- mencement of the Fixed Rate Period (the "Conversion Date"), in which case this Bond shall bear interest from the Conver- sion Date, or (b) such date of authentication shall be the first day of a January or July to which interest on this Bond has been paid or duly provided for, in which case this Bond shall bear interest from such date. For the period from the date of the initial delivery of the Bonds to the earlier of the Conversion Date or the maturity date of this Bond (the "Short Term Rate Period"), this Bond shall bear interest from such initial delivery date or the third Business Day (as hereinafter defined) of a week, as the case may be, to and including the second Business Day of the immediately following week, at the Short Term Rate (described below) for such interest rate period. This Bond shall bear interest during each Short Term Rate Period at a rate (the "Short Term Rate") equal to the lesser of (a) the Cap Rate (as hereinafter defined) or (b) the interest rate established by the Remarketing Agent (as defined in the Indenture), in the following manner: on such initial delivery date or the third Business Day of each week, as the case may be, the Remarketing Agent shall determine the interest rate which would be the interest rate, but would not exceed the interest rate, that would result in the market value of the Bonds on such date of determination being 100% of the principal amount thereof taking into account to the extent appropriate (i) market interest rates for comparable securities (outstanding tax exempt bonds interest on which is treated as a tax preference under section 57(a)(5) of the Internal Revenue Code of 1986, as amended (the "Code") (A) with interest periods, demand purchase options and redemption features substantially identical to the Bonds and (B) if the Bonds are rated, rated by a national credit rating agency in the same rating category as the Bonds), (ii) other financial market rates and indices which may have a bearing on the Short Term Rate (including rates borne by commercial paper, tax-exempt commercial paper, United States Treasury bills and United States Treasury bonds; HUD project notes; commercial bank prime rates; the London Interbank Offered Rate; indices maintained by The Bond Buyer; and other publicly available tax-exempt rate indices), (iii) general financial market conditions (including current forward supply), and (iv) factors particular to the Project or the credit standing of the Company or the Bank, and on such date shall give notice of the interest rate so determined by telephone or telegraph, promptly confirmed in writing, to the Issuer, the Trustee, the Paying Agent, the Company and the Bank, and the interest rate so determined (if not greater than the Cap Rate) shall be the interest rate on this Bond for the immediately following interest rate period; provided, however, that if for any reason the interest rate on this Bond for any such interest rate period is not or cannot be established in the foregoing manner, the Short Term Rate for such interest rate period shall be determined by the Trustee and shall be a percentage per annum (not to exceed the Cap Rate) equal to eighty percent (80%) of the bond equivalent yield (calculated in accordance with standard practice in the banking industry) applicable to 13 -week United States Treasury bills determined on the basis of the average per annum discount rate at which such 13 -week Treasury bills shall have been sold at the most recent Treasury auction of such 13 -week Treasury bills as quoted or published by the Federal Reserve Board or any department or agency of the United States of America; provided further, that in the event that there shall not have been a Treasury auction of such 13 -week Treasury bills on any date during the ten (10) Business Days immediately preceding such date of determination of the Short Term Rate, or in the event that such discount rates for any Treasury auction of such 13 -week Treasury bills during such ten (10) Business Day period shall not be quoted or published by the Federal Reserve Board or any department or agency of the United States of America, the Short Term Rate for the immediately preceding interest rate period shall remain in effect for such interest rate period. The term "Business Day" means any day other than a day on which banking institutions in the city in which the principal corporate trust office of the Trustee, the Bond Registrar or the Tender Agent is located or the principal office of the Remarketing Agent is located, or on which banking institutions in the city in which the office of the Bank where drawings under the Letter of Credit are to be made is located, or on which banking institutions located in The City of New York, New York, are required or authorized by law to be closed, or other than a day on which the New York Stock Exchange is closed. THE "CAP RATE" SHALL BE EQUAL TO THE RATE OF FIFTEEN PERCENT (15%) PER ANNUM. Notwithstanding the above, this Bond shall bear inter- est at a fixed rate (the "Fixed Rate") from the Conversion Date to the maturity date of this Bond (the "Fixed Rate Period") equal to the lesser of (a) the Cap Rate, or (b) the interest rate established by the Remarketing Agent in the following manner: the Issuer, the Trustee, the Remarketing Agent, the Tender Agent and the Bank shall have received written notice from the Company of the exercise of its option to convert the interest rate borne by the Bonds to the Fixed Rate, at least sixty (60) days prior to the Proposed Conversion Date (as hereinafter defined). Within thirty (30) days of the receipt of notice of an election to convert from the Company, the Remarketing Agent shall determine for the proposed Fixed Rate Period a minimum Fixed Rate (the "Minimum Fixed Rate"), which shall be a rate determined in accordance with the criteria for the determination of a Fixed Rate, but taking into account available Rate Determination Factors (as hereinafter defined) as of the date of the determination of the Minimum Fixed Rate. The Remarketing Agent shall give the Trustee, the Paying Agent and Texas Commerce Bank National Association, as tender agent (the "Tender Agent") written notice of the Minimum Fixed Rate and the date of its calcu- lation within five (5) Business Days after it is determined, and the Tender Agent shall include reference to the Minimum Fixed Rate in its notice of mandatory tender as hereinafter described. On or before the Business Day immediately preceding the Proposed Conversion Date, the Remarketing Agent shall determine the rate which would be the interest rate, but would not exceed the interest rate, that would result in the market value of the Bonds on the date of such determination being 100% of the principal amount thereof (taking into account to the extent applicable (i) market interest rates for comparable securities (outstanding tax exempt bonds interest on which is treated as a tax preference under section 57(a)(5) of the Code (A) with interest periods, maturities and redemption features substantially identical to the Bonds and (B) if the Bonds are rated, rated by a national credit rating agency in the same rating category as the Bonds) held by municipal unit investment trusts or similar institutional investors with substantial portfolios, (ii) other financial market rates and indices which may have a bearing on the Fixed Rate (including market rates borne by United States Treasury obligations; industrial development bonds; pollution control bonds; public power bonds; housing bonds; civic facility bonds; other revenue bonds; general obligation bonds; commercial bank prime rates; certificate of deposit rates; federal funds rates; indices maintained by The Bond Buyer; and other publicly available tax-exempt rate indices), (iii) general financial market conditions (including current forward supply), and (iv) factors particular to the Project or the credit standing of the Company or the Bank, if applicable, all of the foregoing being referred to as the "Rate Determination Factors"), and the greater of the interest rate so determined or the Minimum Fixed Rate shall be the Fixed Rate from and after the Conversion Date. Notwithstanding the foregoing, such Fixed Rate shall not take effect if (i) there shall not have been supplied to the Issuer, the Trustee, the Company, the Remarketing Agent, the Tender Agent and the Bank at or prior to 4:00 p.m., New York time, on the Business Day prior to the Proposed Conversion Date an opinion of Bond Counsel stating that such conversion to the Fixed Rate is lawful under applicable law and permitted by the Indenture and that such conversion to the Fixed Rate will not have an adverse effect on the exclusion of the interest on the Bonds from gross income of the registered owners thereof for Federal income taxation, and (ii) if a substitute Letter of Credit is to be provided by the Company for the Fixed Rate Period, there shall not have been delivered to the Trustee such substitute Letter of Credit at or prior to 10:00 a.m., New York time, on the Proposed Conversion Date. In the event that all conditions to the establishment of the Fixed Rate shall not be met, this Bond shall bear interest at the Short Term Rate determined as set forth in the Indenture. The Issuer, at the direction of the Company, has appointed Drexel Burnham Lambert Incorporated as Remarketing Agent under the Indenture, which appointment has been approved by the Company. The Issuer, at the Company's request, shall remove or replace the Remarketing Agent. The determination of any interest rate by the Remarketing Agent shall be conclusive and binding on the Issuer, the Company, the Trustee, the Bank, the Tender Agent and the owners from time to time of all of the Bonds. The owner hereof shall have the right to tender this Bond or a portion hereof (in authorized denominations) to the Tender Agent for purchase as a whole or in part (in any authorized denomination) on any Business Day during the Short Term Rate Period, but not thereafter, at a purchase price equal to 100% of the principal amount hereof tendered plus accrued interest to the specified purchase date, in accordance with the Indenture. In order to exercise such option with respect to this Bond or any portion hereof, the owner hereof must give to the Tender Agent at its designated corporate trust office at or before 10:00 a.m., New York time, at such office at least seven (7) days immediately preceding the purchase date, notice by telephone confirmed by written notice of tender to the Tender Agent not more than two (2) Business Days after such telephonic notice, or by written notice of tender to the Tender Agent (which written notice of tender shall be in the form attached hereto or shall be in such other form acceptable to the Tender Agent). Upon the delivery of such written notice of tender, such election to tender shall be irrevocable and binding upon the owner hereof. At or before 10:00 a.m., New York time, on the specified purchase date (or, if such purchase date is not a Business Day, then on the immediately following Business Day), the registered owner of each Bond as to which any such notice of tender shall have been given shall deliver this Bond and an instrument of assignment or transfer duly executed in blank (which instrument of assignment or transfer shall be in the form provided on this Bond or in such other form acceptable to the Tender Agent) to the Tender Agent at its designated corporate trust office, and on the specified purchase date (or if such purchase date is not a Business Day, on the immediately following Business Day), the Tender Agent shall purchase this Bond only out of funds made available to it for such purpose, or cause this Bond to be purchased, at a purchase price equal to the principal amount hereof plus accrued interest, if any, and the owner hereof, by his acceptance hereof, hereby covenants and agrees to tender this Bond in the manner and at the times aforesaid. If this Bond is not so tendered (an "Unsurrendered Bond"), and there has been irrevocably deposited in the Bond Purchase Fund referred to in the Indenture an amount sufficient to pay the purchase price of this Bond and all other Bonds so tendered or deemed tendered for purchase on such specified purchase date, this Bond shall be deemed to have been tendered by the owner hereof and purchased from such owner on the specified purchase date, and the owner hereof shall not be entitled to receive interest on this Bond on and after the specified purchase date. Upon surrender of this Unsurrendered Bond to the Tender Agent, the Tender Agent shall pay to the owner of this Unsurrendered Bond only an amount equal to the purchase price of this Unsurrendered Bond due on such purchase date. The Tender Agent shall, in its sole discretion, determine whether, with respect to any Bond, the owner thereof shall have properly exercised the option to have its Bond pur- chased as a whole or in part. Subject to the provisions below, the owner of this Bond shall be required to tender this Bond to the Tender Agent for purchase on (i) the date specified by the Company as the Conversion Date (a "Proposed Conversion Date"), (ii) the date at least five (5) days prior to the date the Letter of Credit for which a substitute Letter of Credit is being substituted expires, under certain circumstances set forth in the Agreement, and (iii) the first day of the calendar month in which the stated termination date of the Letter of Credit occurs (each a "Mandatory Tender Date"), all as more fully provided below. Notice of a mandatory tender shall be prepared by the Tender Agent and given by the Bond Registrar by first class mail, postage prepaid, to the owner of this Bond at its address appearing on the registration books of the Issuer maintained by the Bond Registrar, not less than ten (10) nor more than fifteen (15) Business Days prior to a Mandatory Tender Date. Such notice of mandatory tender shall specify the Mandatory Tender Date and (i) shall state that the Mandatory Tender Date is either a Proposed Conver- sion Date or the first day of the calendar month in which the stated termination date of the Letter of Credit occurs, or the date specified for tender upon the issuance of a substitute Letter of Credit issued by a bank which has assigned to its commercial paper a Rating Category (as defined in the Indenture) lower than that assigned to the commercial paper of the Bank which issued the Letter of Credit which is being replaced, as the case may be, and that the Trustee will no longer be permitted to make drawings on the Letter of Credit currently in effect and, if such Mandatory Tender Date is a date set forth in (i) above, shall state the Minimum Fixed Rate, and in any case shall state whether or not a Letter of Credit or Alternate Credit Facility (as defined in the Indenture) will be in effect during the ensuing Fixed Rate Period or other applicable period, and whether the rating or ratings, if any, on the Bonds may be reduced or withdrawn, (ii) shall state that the owner of this Bond may elect not to tender or sell this Bond on such Mandatory Tender Date by delivering a notice (a "Non-Tender Notice") setting forth such election to the Tender Agent, together 'with the written statement referred to below, not less than five (5) Business Days prior to such Mandatory Tender Date, (iii) shall state that if such Non-Tender Notice has not been properly received by the Tender Agent, this Bond must be tendered by the owner hereof for purchase at or before 10:00 a.m., New York time, on the Mandatory Tender Date (or if the Mandatory Tender Date is not a Business Day, on the immediately following Business Day) to the Tender Agent at its designated corporate trust office, together with an instrument of assignment or trans- fer duly executed in blank (which instrument of assignment or transfer shall be in the form provided on this Bond or such other form acceptable to the Tender Agent), and shall be purchased on the Mandatory Tender Date (or if the Manda- tory Tender Date is not a Business Day, on the immediately following Business Day) at a purchase price equal to the principal amount hereof, plus accrued interest, if any, and if this Bond is not so tendered (an "Unsurrendered Bond"), but there has been irrevocably deposited in the Bond Pur- chase Fund referred to in the Indenture an amount sufficient to pay the purchase price for this Bond and all other Bonds so tendered or deemed tendered for purchase on the Mandatory Tender Date (except Bonds as to which a Non-Tender Notice has been received), this Bond shall be deemed to have been tendered for purchase by the owner hereof and purchased from such owner on the Mandatory Tender Date. In the case of any mandatory tender, the owner of this Bond may, by delivery of a Non-Tender Notice to the Tender Agent not less than five (5) Business Days prior to such Mandatory Tender Date elect not to tender or sell this Bond on such Mandatory Tender Date, which Non-Tender Notice shall be irrevocable. Any such Non-Tender Notice must be accompanied by a written statement from the owner of this Bond identifying the certificate number and principal amount of this Bond, and acknowledging that he is aware, if such Mandatory Tender Date is a Proposed Conversion Date, that the Bonds will bear interest at a rate not less than the Minimum Fixed Rate from and after the Conversion Date, and that he is aware that effective immediately after the Mandatory Tender Date the Bonds may or may not have the benefit of the Letter of Credit, and that the rating or ratings on the Bonds may be reduced or withdrawn or that the provider of a substitute Letter of Credit may or may not have as strong a commercial paper credit rating as the previous issuer of the Letter of Credit (or, upon conversion to a Fixed Rate, the provider of a substitute Letter of Credit may or may not have as strong a long term unsecured credit rating as the previous issuer of the Letter of Credit). Unless the owner of this Bond has properly delivered a Non-Tender Notice with respect hereto to the Tender Agent, this Bond shall be tendered by the owner hereof to the Tender Agent for purchase at or before 10:00 a.m., New York time, on the Mandatory Tender Date (or if the Mandatory Tender Date is not a Business Day, on the immediately following Business Day), by delivering this Bond to the Tender Agent at its designated corporate trust office, together with an instrument of assignment or transfer duly executed in blank (which instrument of assign- ment or transfer shall be in the form provided on this Bond or such other form acceptable to the Tender Agent), and on the Mandatory Tender Date (or if the Mandatory Tender Date is not a Business Day, on the immediately following Business Day), the Tender Agent shall purchase this Bond, or cause this Bond to be purchased (unless the owner hereof shall have delivered a Non -Tender Notice to the Tender Agent), at a purchase price equal to the principal amount hereof, plus accrued interest, if any, and the owner of this Bond, by his acceptance hereof, hereby covenants and agrees to tender this Bond in the manner and at the time as aforesaid. If this Bond is not tendered at or before 10:00 a.m., New York time, on any Mandatory Tender Date, and there has been irrevocably deposited in the Bond Purchase Fund referred to in the Indenture an amount sufficient to pay the purchase price hereof and all other Bonds tendered or deemed tendered for purchase on such Mandatory Tender Date (except Bonds as to which a Non -Tender Notice has been received), this Bond shall be deemed to be tendered by the owner hereof and purchased from such owner on the Mandatory Tender Date, and the owner hereof shall not be entitled to receive interest on this Unsurrendered Bond on and after such Mandatory Tender Date (unless the owner hereof shall have delivered a Non -Tender Notice to the Tender Agent). Upon surrender of this Unsurrendered Bond to the Tender Agent, the Tender Agent shall pay to the owner of this Unsurrendered Bond only an amount equal to the purchase price of this Unsurrendered Bond due on such Mandatory Tender Date. Prior to the Conversion Date, the Bonds are subject to redemption prior to maturity by the Trustee from any avail- able funds, including funds derived from a prepayment of the Note (or a portion thereof) at the option of the Company, as a whole, or in part (and, if in part, by lot in such manner as may be designated by the Bond Registrar, provided that Bonds held by the Tender Agent for the account of the Company resulting from a draw upon the Letter of Credit shall first be subject to such redemption prior to any other Bonds which may be selected for redemption), on any date, at a redemption price of 100% of the principal amount thereof to be redeemed plus accrued interest to the date fixed for redemption. After the Conversion Date, the Bonds are subject to redemption prior to maturity by the Trustee from any available funds, including funds derived from a prepay- ment of the Note (or a portion thereof) at the option of the Company, as a whole on any date, subject to the terms of the Indenture, or in part on any interest payment date (and, if in part, by lot in such manner as may be designated by the Trustee), subject to the terms of the Indenture, at a redemption price of 100% of the principal amount to be redeemed, plus accrued interest to the date fixed for redemption, plus the applicable premium, if any, set forth in the Indenture. The Bonds are subject to mandatory redemption prior to maturity by the Trustee: (1) from funds derived from the prepayment of the Note by the Company, as a whole and not in part, on any date within thirty (30) days of the occurrence of a Determination of Taxability (as defined in the Inden- ture), at a redemption price of 103% of the principal amount to be redeemed and accrued interest to the date fixed for redemption; and (2) from funds remaining on deposit in the Construction Fund (rounded, prior to the Conversion Date, to an integral multiple of $100,000, and after the Conversion Date, to an integral multiple of $5,000) upon the completion of the Project, in accordance with the Indenture, at a redemption price of 100% of the principal amount to be redeemed and accrued interest to the date fixed for redemption. In the event any of the Bonds or portions thereof (which shall be an authorized denomination) are called for redemption prior to maturity as aforesaid, the Trustee shall so notify the Bond Registrar in writing, or by telephone confirmed in writing, whereupon notice thereof identifying the Bonds or portions thereof to be redeemed prior to maturity will be given by the Bond Registrar by mailing a copy of the redemption notice by first class mail, postage prepaid, at least thirty (30) days prior to the date fixed for redemption to the registered owner of each bond to be redeemed as a whole or in part at the address shown on the registration books; provided, however, that failure to give such notice by mailing, or any defect therein, shall not affect the validity of any proceeding for the redemption of any Bond with respect to which no such failure or defect has occurred. All Bonds or portions thereof so called for redemption will cease to bear interest on and after the specified date provided funds for their redemption are on deposit with the Paying Agent at that time. The owner of this Bond shall have no right to enforce the provisions of the Indenture or the Agreement or to institute action to enforce the covenants therein, or to take any action with respect to any event of default under the Indenture or the Agreement, or to institute, appear in or defend any suit or other proceedings with respect there- to, except as provided in the Indenture. In certain events, on the conditions, in the manner and with the effect set forth in the Indenture, the principal of all the Bonds issued under the Indenture and then outstanding may become or may be declared due and payable before the stated maturi- ty thereof, together with interest accrued thereon. The Indenture prescribes the manner in which it may be dis- charged, including a provision that under certain circum- stances the Bonds shall be deemed to be paid if Governmental Obligations, as defined therein, maturing as to principal and interest in such amounts and on such dates as will provide sufficient funds to pay the principal of and inter- est and premium, if any, on such Bonds and all fees, charges and expenses of the Trustee, and all other liabilities of the Company under the Agreement, shall have been deposited with the Trustee, after which such Bonds shall no longer be secured by or entitled to the benefits of the Indenture or the Agreement, except for purposes of transfer and exchange and payment from such Governmental Obligations on the date or dates specified at the time of such deposit. The Indenture permits the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the owners of the Bonds at any time by the issuer with the consent of the owners of a majority, or in certain instances 100%, in aggregate principal amount of the Bonds at the time outstanding, as defined in the Indenture. Any such consent or waiver by the owner of this Bond shall be conclusive and binding upon such owner and upon all future owners of this Bond and of any Bond issued upon the transfer or exchange of this Bond whether or not notation of such consent or waiver is made upon this Bond. The Inden- ture also contains provisions permitting the Trustee to enter into certain supplemental indentures without the consent of the owners of the Bonds and to waive certain past defaults under the Indenture and their consequences. No supplemental indenture will become effective without the consent of the Company and, if a Letter of Credit is then in effect, the Bank. The following abbreviations, when used in the inscrip- tion on the face of this Bond, shall be construed as though they were written out in full according to applicable laws or regulations: UNIF GIFT MIN ACT -- Custodian (Cust) (Minor) under Uniform Gifts to Minors Act (State) TEN COM --as tenants in common TEN ENT --as tenants by the entireties JT TEN --as joint tenants with right of survivorship and not as tenants in common Additional abbreviations may also be used though not in the above list. ASSIGNMENT FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto (Name and Address of Assignee) the Variable Rate 7 -Day Demand Industrial Development Revenue Bond (De Dietrich (USA), Inc. Project) Series 1989 (the "Bond") of the Corpus Christi Industrial Development Corporation, numbered , and does hereby irrevocably constitute and appoint to transfer the Bond on the books kept for registration thereof with full power of substitution in the premises. Taxpayer Identification Number or Social Security Number Dated: NOTICE: The signature to this Assignment must correspond with the name as it appears upon the face of the Bond in every particular, without alteration or enlargement or any change whatever; and Signature Guaranteed: NOTICE: Signature(s) must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. BONDHOLDER TENDER NOTICE The undersigned hereby elects to have the Variable Rate 7 -Day Demand Industrial Development Revenue Bond (De Dietrich (USA), Inc. Project) Series 1989, numbered (the "Bond") of the Corpus Christi Industrial Development Corporation (the "Issuer") (or any portion thereof in any authorized denomination) purchased in accordance with the provisions of the Bond and the Indenture of Trust (the "Indenture") dated as of October 15, 1988, and as amended and supplemented as of October 15, 1989 by and between the Issuer and Texas Commerce Bank -Corpus Christi, National Association, as Trustee (the "Trustee"), on (the "Purchase Date"), which Purchase Date shall be a Business Day at least seven (7) days immediately following the submission of this Bondholder Tender Notice to Texas Commerce Bank National Association, Houston, Texas, as tender agent (the "Tender Agent") (unless the owner of the Bond shall have given by telephonic notice of its election to tender the Bond at or before 10:00 a.m., New York time, to the Tender Agent, confirmed by submission of this Bondholder Tender Notice not more than two (2) Business Days after such telephonic notice, in which event such Purchase Date shall be a Business Day at least seven (7) days immediately following the date of such telephonic notice), at the purchase price of 100% of the principal amount thereof being purchased plus accrued interest to the date of purchase (the "Purchase Price"). Pursuant to the terms of the Indenture, the Purchase Price of the Bond (or portion thereof) to be purchased shall be paid to the registered owner of the Bond as provided in the Indenture, at or before 3:00 p.m., New York time, on the Purchase Date (or, if the Purchase Date is not a Business Day, as defined in the Indenture, then on the immediately following Business Day) upon presentation of the Bond to the Tender Agent, together with an instrument of assignment or transfer duly executed in blank (which instrument of assignment or transfer shall be in the form provided on the Bond or in such other form acceptable to the Tender Agent), at or before 10:00 a.m. on the Purchase Date (or if the Purchase Date is not a Business Day, on the immediately following Business Day), at The undersigned hereby acknowledges and agrees to such terms. Registered owners of at least $1,000,000 in aggre- gate principal amount of Bonds may be paid the Purchase Price of the Bonds (or portion thereof) to be purchased by wire transfer. This Bondholder Tender Notice shall not be accepted by the Tender Agent unless it is properly completed and re- ceived by the Tender Agent at its designated corporate trust office, at NOTICE: Signature(s) must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company with a branch in the United States. The principal amount of the Bond subject to this notice of tender for purchase is $ (INSERT TOTAL PRINCIPAL AMOUNT OF BOND OR A PORTION THEREOF IN THE AMOUNT OF $100,000 OR ANY INTEGRAL MULTIPLE THEREOF) IF NO AMOUNT IS INDICATED IN THE SPACE ABOVE, THE OWNER OF THE BOND SUBJECT TO THIS BONDHOLDER TENDER NOTICE WILL BE DEEMED TO HAVE TENDERED THE BOND IN ITS FULL PRINCIPAL AMOUNT FOR PURCHASE. SPECIAL DELIVERY INSTRUCTIONS To be completed ONLY if the registered owner of the Bond is the registered owner of at least $1,000,000 in aggregate principal amount of the Bond of the issue of which it is a part, and wishes to direct the Tender Agent to wire transfer the purchase price of the Bond (or portion thereof) to be purchased Wire transfer purchase price to: Account: Number Location: of Account (Include Zip Code) * * * * * * * * EXHIBIT. FIRST AMENDATORY LOAN AGREEMENT THIS FIRST AMENDATORY LOAN AGREEMENT (this "Amendatory Agreement") dated as of October 15, 1989, by and between CORPUS CHRISTI INDUSTRIAL DEVELOPMENT CORPORATION (the "Issuer"), a nonstock, nonprofit industrial development corporation organized and existing under the laws of the State of Texas, including particularly the Development Corporation Act of 1979 (the "Act"), Article 5190.6, V.A.T.C.S., as amended, and DE DIETRICH (USA), INC., a corporation duly organized and existing under the laws of the State of Deleware (the "Company"); WI TNESSE T H: WHEREAS, pursuant to and in accordance with the provisions of the Act, the Issuer and the Company executed and delivered a Loan Agreement, dated as of October 15, 1988 (the "Original Agreement"), whereunder the Issuer agreed to issue bonds and loan the proceeds thereof to the Company for the purpose of financing all or a part of the Cost of the Project (each as defined in the Original Agreement); and WHEREAS, in connection therewith, the Issuer executed and delivered an Indenture of Trust, dated as of October 15, 1988 (the "Original Indenture") by and between the Issuer and Texas Commerce Bank - Corpus Christi, National Association, as trustee (the "Trustee"); and WHEREAS, pursuant to and in accordance with the provisions of the Act and the Indenture, the Issuer issued and delivered its Variable Rate 7 -Day Demand Industrial Development Revenue Bonds (De Dietrich (USA), Inc. Project) Series 1988, in the aggregate principal amount of $7,000,000 (the "Series 1988 Bonds"); and WHEREAS, the Issuer loaned the proceeds of the Series 1988 Bonds to the Company in accordance with the terms of the Original Agreement; and WHEREAS, the Original Agreement provided that, at the request of the Company, and upon satisfaction of certain conditions set forth in the Original Agreement, the Issuer was authorized to issue additional bonds in an amount not to exceed $2,000,000 which, together with the proceeds of the Series 1988 Bonds, would be used by the Company to finance a part of the Cost of the Project; and WHEREAS, Societe Generale, New York branch, as issuer of the original Letter of Credit (as defined in the Original Agreement), has notified the Issuer, the Trustee and the Company of its consent to the issuance of additional bonds in the aggregate principal amount of $2,000,000 (the "Series 1989 Bonds"); and WHEREAS, in order to authorize the issuance of the Series 1989 Bonds, the Issuer and the Company find it necessary to execute this Amendatory Agreement. NOW, THEREFORE, THIS FIRST AMENDATORY LOAN AGREEMENT WITNESSETH: SECTION 1. This Amendatory Agreement is supplemental to and amendatory of the Original Agreement, and is executed in accordance with Article IX of the Original Agreement, Article XII of the Original Indenture and the Act. SECTION 2. That, except as provided below, all words and phrases defined in Article I of the Original Indenture and Article I of the Original Agreement shall have the same meanings in this Amendatory Agreement as such terms are given therein. In addition, the following words and phrases shall have the following meanings unless the context or use indicates another or different meaning or intent: "Agreement" means the Original Agreement and the Amendatory Agreement, as from time to time supplemented and amended. "Amendatory Agreement" means Agreement dated as of October 15, Issuer and the Company. "Bonds" means, collectively, the Series 1989 Bonds. the First Amendatory Loan 1989, by and between the the Series 1988 Bonds and "Indenture" means the Original Indenture and the Supplemental Indenture, as from time to time supplemented and amended. "Note" means, collectively, the two promissory notes of the Company made payable to the Trustee, delivered by the Company pursuant to Section 4.2(a) of the Agreement, in order to evidence the obligation of the Company to repay the loan made under the Agreement, the payments thereon are provided to be sufficient to pay the principal of, premium, if any, and interest on the Bonds, or the purchase price of the Bonds, when due. "Original Agreement" means the Loan Agreement dated as of October 15, 1988, by and between the Issuer and the Company. "Original Indenture" means the Indenture of Trust dated as of October 15, 1988, by and between the Issuer and the Trustee. "Series 1988 Bonds" means the bonds of the Issuer, in the aggregate principal amount of $7,000,000 issued and delivered by the Issuer on December 8, 1988 pursuant to the terms of the Original Indenture. "Series 1989 Bonds" means the bonds of the Issuer, in the aggregate principal amount of $2,000,000, issued pursuant to the terms of the Indenture. "Supplemental Indenture" means the First Supplemental Indenture of Trust dated as of October 15, 1989, by and between the Issuer and the Trustee. SECTION 3. The Issuer and the Company hereby reaffirm and restate all representations, warranties and covenants made by the Issuer and the Company, respectively, in the Original Agreement. SECTION 4. Upon the issuance of the Series 1989 Bonds, the provisions of Section 3.7 of the Original Agreement shall no longer have any force or effect. Cpnw •n y ISSIAQ.ce oR' 2pcb• cc: SECTION 5. The Company agrees to issue a promissory Wadd,5 note in the principal amount of $2,000,000. The promissory note shall be dated the date of issuance and delivery of the Series 1989 Bonds, shall mature on NcV./, 200$, except as the provisions of the Agreement with respect to prepayment may become applicable thereto, and shall be governed by the provisions of the Agreement, including particularly Section 4.2. SECTION 6. The form of the promissory note to be executed by the Company shall be in substantially the same form as Exhibit A attached hereto and made a part hereof. SECTION 7. The Company hereby covenants and agrees that a substitute Letter of Credit will be delivered to the Trustee or its designee, in an amount equal to 103% of the outstanding principal amount of the Bonds plus an amount equal to the maximum interest to accrue on the Bonds then outstanding for seventy (70) days at the maximum rate of interest of fifteen percent (15%) per annum, at the time of the delivery of the Series 1989 Bonds. SECTION 8. Save and except as amended and supplemented by this Amendatory Agreement, the Original Agreement shall remain in full force and effect. SECTION 9. This Amendatory Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. IN WITNESS WHEREOF, Corpus Christi Industrial Develop- ment Corporation and De Dietrich (USA), Inc., have caused this Amendatory Agreement to be executed in their respective names and their respective seals to be hereunto affixed and attested by their duly authorized officers, all as of the day first above written. (SEAL) ATTEST: CORPUS CHRISTI INDUSTRIAL DEVELOPMENT CORPORATION EXHIBIT By President Secretary DE DIETRICH (USA), INC. By Its President (SEAL) ATTEST: Its Secretary DE DIETRICH (USA), INC. PROMISSORY NOTE FOR VALUE RECEIVED, DE DIETRICH (USA), INC., a Delaware corporation (the "Company"), hereby promises to pay to Texas Commerce Bank - Corpus Christi, National Association or its successors and assigns (the "Trustee"), in lawful money of the United States of America in Federal or other immediately available funds the principal amount of Two Million Dollars ($2,000,000) due November 1, 2008; and to pay interest from the date hereof on the unpaid principal balance hereof at such rates equal to the interest rates from time to time borne by the Bonds (as hereinafter de- fined), calculated during the Short Term Rate Period (as defined in the Agreement hereinafter referred to) on the basis of a calendar year consisting of 365 or 366 days, as the case may be, and calculated on the actual number of days elapsed, and calculated during the Fixed Rate Period (as defined in the Agreement hereinafter referred to) on the basis of a calendar year consisting of 360 days of twelve (12) thirty -day months, payable in lawful money of the United States of America in Federal or other immediately available funds during said Short Term Rate Period on 1, 1989, on the first day of each calendar month thereafter and on the date of the commencement of said Fixed Rate Period, until the earlier of the date of the commence- ment of said Fixed Rate Period or the date on which said principal amount is paid, and during said Fixed Rate Period on the first day of the January or July immediately following the commencement of said Fixed Rate Period and on the first day of each January and July thereafter, until said principal amount is paid. This Promissory Note shall bear interest on any overdue installment of principal hereof, premium, if any, or inter- est hereon (to the extent legally enforceable) at a rate equal to the interest rate borne by this Promissory Note from time to time from the due date thereof until paid. This Promissory Note is issued pursuant to the Loan Agreement dated as of October 15, 1988, by and between the Corpus Christi Industrial Development Corporation (the "Issuer") and the Company, as amended and supplemented by the First Amendatory Loan Agreement, dated as of October 15, 1989, by and between the Issuer and the Company (collec- tively the "Agreement"), and is issued in consideration of the loan made thereunder and to evidence the obligations of the Company set forth in Section 4.2(a) and 4.2(e) thereof. The Company covenants and agrees that the payments of principal hereof and premium, if any, and interest hereon will be sufficient to enable the Issuer to pay when due the principal of, premium, price, on its Variable ment Revenue Bonds (De 1989 in the aggregate "Bonds"). if any, and interest, or the purchase Rate 7 -Day Demand Industrial Develop - Dietrich (USA), Inc. Project) Series principal amount of $2,000,000 (the Each payment of principal of, premium, if any, and interest on, or the purchase price of, this Promissory Note shall at all times be sufficient to pay the total amount of principal of (whether at maturity or upon acceleration or prior redemption), premium, if any, and interest on, or the purchase price of, the Bonds on the same date. The total payments to be made by the Company hereunder shall be sufficient to pay when due the principal of (whether at maturity or upon acceleration or prior redemption) or purchase price of, premium, if any, and interest on, or the purchase price of, the Bonds; provided, that the Excess Amount (as hereinafter defined) held by the Trustee (as defined in the Agreement) in the Bond Fund or Bond Purchase Fund on a payment date shall be credited against the payment due on such date; and provided further, that, subject to the provisions of the immediately following sentence, if at any time the amount held by said Trustee in said Bond Fund or Bond Purchase Fund should be sufficient (and remain sufficient) to pay at the times required the principal or purchase price of, interest and premium, if any, on, or the purchase price of, the Bonds then remaining unpaid, the Company shall not be obligated to make any further payments under the provisions of this Promissory Note. Notwith- standing the provisions of the preceding sentence, if on any day the Excess Amount held by said Trustee in said Bond Fund or Bond Purchase Fund is insufficient to make the then required payments of principal (whether at maturity or upon redemption prior to maturity or acceleration), interest and premium if any, on, or purchase price of, the Bonds on such date, the Company shall forthwith pay such deficiency. The term "Excess Amount" as of any interest payment date shall mean (i) the amount in said Bond Fund on such date in excess of the amount required for payment of the purhcase price of the Bonds, or the principal of the Bonds which theretofore has matured at maturity or on a date fixed for redemption and premium, if any, on such Bonds including in all cases where Bonds have not been presented for payment and paid, or for the payment of interest which has theretofore come due in all cases where interest checks have not been presented for payment and paid or (ii) the amount in the Bond Purchase Fund in excess of the amount required for payment of the purchase price of the Bonds on such purchase date. This Promissory Note is entitled to the benefits and is subject to the conditions of the Agreement. The obligations of the Company to make the payments required hereunder shall be absolute and unconditional without any defense or set- off, counterclaim or recoupment by reason of any default by the Issuer under the Agreement or under any other agreement between the Company, the Issuer, or said Trustee, or out of any indebtedness or liability at any time owing to the Company by the Issuer or the Trustee, or for any other reason. This Promissory Note is subject to mandatory prepayment as a whole, and optional prepayment as a whole or in part, as provided in Article VII of the Agreement. In certain events, on the conditions, in the manner and with the effect set out in the Agreement, the principal installments of this Promissory Note may be declared due and payable before the stated maturity thereof, together with accrued interest thereon. Reference is hereby made to the Agreement for a complete statement of the terms and condi- tions under which the maturity of the principal installments of this Promissory Note may be accelerated. IN WITNESS WHEREOF, the Company has caused this Promis- sory Note to be duly executed, attested, sealed and deliv- ered as of , 1989. DE DIETRICH (USA), INC. (SEAL) By EXHIBIT. Attest: By 0164M EXHIBIT CORPUS CHRISTI INDUSTRIAL DEVELOPMENT CORPORATION (CORPUS CHRISTI, TEXAS) and DE DIETRICH (USA), INC. and DREXEL BURNHAM LAMBERT INCORPORATED BOND PURCHASE AGREEMENT Dated October 1989 $2,000,000 Corpus Christi Industrial Development Corporation Variable Rate 7 -Day Demand Industrial Development Revenue Bonds (De Dietrich (USA), Inc. Project) Series 1989 0164M Corpus Christi Industrial Development Corporation Variable Rate 7 -Day Demand Industrial Development Revenue Bonds (De Dietrich (USA), Inc. Project) Series 1989 Bond Purchase_ Agreement AGREEMENT, dated October , 1989, among Corpus Christi Industrial Development Corporation (the "Issuer"), De Dietrich (USA), Inc. (the:Company") and Drexel Burnham Lambert Incorporated (the "Purchaser") with respect to the sale and purchase of the Issuer's Variable Rate 7 -Day Demand Industrial Development Revenue Bonds (De Dietrich (USA), Inc. Project), Series 1989 (the "Series 1989-Bbnds") in the aggregate principal amount of $2,000,000 on the terms and subject to the conditions herein set forth. All of the capitalized terms used in this Bond Purchase Agreement and not otherwise defined shall have the meanings assigned thereto in the Indenture (defined below) and the Agreement (defined below). The Company has previously filed with the Issuer its application for the issuance of the Series 1989 Bonds by the Issuer, and the Issuer has evidenced its intent to issue bonds for the Project (defined below) by a resolution duly adopted on May 17, 1988 and authorized the Series 1989 Bonds by a resolution duly adopted on October 1989 (collectively, the "Resolutions"). The Issuer has previously issued its Variable Rate 7 -Day Demand Industrial Development Revenue Bonds (De Dietrich (USA), Inc. Project), Series 1988 (the "Series 1988 Bonds") in the aggregate principal amount of $7,000,000 (the Series 1988 Bonds and the Series 1989 Bonds are hereinafter sometimes referred to collectively as the "Bonds"). The Series 1989 Bonds will be special obligations of the Issuer payable solely out of the revenues or other receipts, funds or moneys pledged therefor, and from any amounts otherwise available to the Trustee for the payment thereof under the Indenture referred to below. The Series 1989 Bonds will be issued for the purposes (i) of financing a portion of the cost of the acquisition of land and the construction and equipping thereon of an approximately 100,000 square foot building (collectively, the "Project") pursuant to a certain First Amendatory Loan Agreement dated as of October 15, 1989 (the "Amendatory 0164M Agreement") between the Issuer and the Company amending and supplementing the Loan Agreement by and between the Issuer and the Company dated as of October 15, 1988 (collectively, the "Agreement"), and (ii) of paying necessary expenses incidental to all thereof. The Bonds shall be in all respects as described in, and shall be issued under and pursuant to, an Indenture of Trust dated as of October 15, 1988 between the Issuer and Texas Commerce Bank -Corpus Christi, National Association, as trustee (the "Trustee"), as amended and supplemented by a First Supplemental Indenture of Trust dated as of October 15, 1989 (the "Supplemental Indenture") between the Issuer and the Trustee (collectively, the "Indenture"). The Series 1989 Bonds shall be further secured by an irrevocable and transferable letter of credit (the "Letter of Credit") issued by the Bank for the account of the Company in favor of the Trustee. In connection with the Letter of Credit, the Company will enter into a Restated Letter of Credit Agreement with the Bank dated as of October 15, 1989 (the "Restated Letter of Credit Agreement"). Pursuant to the Indenture, the Issuer has granted a security interest in and assign to the Trustee substantially all of its rights, title and interests in the Agreement. 1. Subject to the terms and conditions and upon the basis of the representations hereinafter set forth, the Issuer hereby agrees to sell the Series 1989 Bonds to the Purchaser and the Purchaser hereby agrees to purchase the Series 1989 Bonds from the Issuer, at the purchase price of $2,000,000 plus accrued interest, if any. 2. The date of delivery and payment for the Series 1989 Bonds (the "Closing Date") will be on or before December 1, 1989, or such other date upon which the Issuer, the Purchaser, the Bank and the Company may mutually agree. The Series 1989 Bonds shall be available in New York City for inspection and packaging at least twenty-four hours before the Closing Date. The Issuer will deliver the Series 1989 Bonds to the Purchaser at approximately 10:00 A.M. on the Closing Date, in temporary form, duly executed and authenticated against payment therefor in immediately available funds to the Trustee for the account of the Issuer. The payment for the Series 1989 Bonds to the Issuer and the delivery thereof to the Purchaser shall be made at the offices of Drexel Burnham Lambert Incorporated, 60 Broad Street, New York, New York 10004, or at such other 0164M place as shall be mutually agreeable to the Issuer and the Purchaser. The Series 1989 Bonds will be delivered in the form and denominations specified in writing by the Purchaser prior to the Closing Date and shall be otherwise as described in the Indenture. Concurrently with the purchase of the Series 1989 Bonds by the Purchaser, the Company shall pay in immediately available funds the Purchaser's underwriting or placement fee in the amount of $W___, 3. The Issuer hereby represents, warrants and covenants that: (a) It is a nonstock, nonprofit industrial development corporation duly organized and existing under the laws of the State of Texas and it has been created and is existing under the provisions of the Development Corporation Act of 1979 (the "Act"). The Issuer is authorized to issue the Bonds in accordance with the Act and to Zoon the proceeds thereof to the Company for the purpose of financing the cost of the Project. (b) Issuer complied of the Act andhas the fulllegal andcoporate right, , power and authority to execute, deliver and perform under this Bond Purchase Agreement, the Series 1989 Bonds, the Supplemental Indenture and the Amendatory Agreement (the "Issuer Documents"), to consummate all transactions contemplated by the Resolutions, the Issuer Documents and any and all other agreements relating thereto, and to execute, issue, sell and deliver the Bonds to the Purchaser as provided herein. (c) By the Resolutions, which have been duly adopted by the Issuer and are still in full force and effect, the Issuer has duly authorized the execution, delivery and performance of each of the Issuer Documents, and the taking of any and all action as may be required on the part of the Issuer to carry out, give effect to and consummate the transactions contemplated by the Issuer Documents, and all approvals necessary in connection with the foregoing have been received. ) issued, authentiicatedThe Series anddeliveredBindaccordances, when ewithdthe Indenture and when delivered to and paid for by the Purchaser in accordance with the terms of this Bond Purchase Agreement, will constitute legal, valid and binding special obligations of the Issuer enforceable in accordance with their terms and will be entitled to the benefit of the Indenture. Neither the State of Texas, the City of Corpus Christi, Texas, nor any other - 3 - s 0164M political subdivision of the State of Texas shall be obligated to pay the Series 1989 Bonds or the interest thereon. Neither the faith and credit nor the taxing power of the State of Texas, the City of Corpus Christi, Texas or any other political subdivision of the State of Texas is pledged for the payment of the principal of, premium, if any, or interest on, the Series 1989 Bonds. (e) The execution, delivery and performance by the Issuer of the Issuer Documents and compliance with the provisions thereof, will not conflict with or constitute on the part of the Issuer a violation or breach of, or default under, the Issuer's Articles of Incorporation or By -Laws, or any statute, indenture, mortgage, deed of trust, or other agreement or instrument to which the Issuer is a party or by which the Issuer is bound, or, to the knowledge of the Issuer, conflict with or constitute on the part of the Issuer a violation or breach of any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Issuer or its property, and all consents, approvals, authorizations and orders of governmental or regulatory authorities which are required to be obtained by the Issuer for the consummation of the transactions contemplated thereby have been obtained or will be obtained prior to the Closing Date. (f) Subject to the provisions of the Indenture and the Agreement, the Issuer will apply the proceeds from the sale of the Series 1989 Bonds to the purposes specified in the Indenture and the Agreement. (g) To the best knowledge of the Issuer, there is no action, suit, proceeding or investigation, at law or in equity, or before or by any court, public board or body pending or threatened against or affecting the Issuer wherein an unfavorable decision, ruling or finding might adversely affect the transactions contemplated hereby and by the Indenture, or which, in any way, might adversely affect the validity of any of the Issuer Documents, or any agreement or instrument to which the Issuer is a party and which will be used or is contemplated for use in consummation of the transactions contemplated hereby and by the Indenture. (h) Any certificates signed by an Authorized Representative of the Issuer or any other official of the Issuer and delivered to the Purchaser or to the Trustee shall be deemed a representation and warranty by the Issuer to the Purchaser as to the statements made therein. - 4 - 0164M (i) The terms and provisions of the Issuer Documents will comply in all material respects with the requirements of the Act and, when executed and delivered by the respective parties thereto, the Issuer Documents will constitute the legal, valid and binding obligations of the Issuer enforceable in accordance with their respective terms except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally, and except for judicial discretion in the exercise of equitable remedies and to the extent, if any, that enforceability of the indemnification and contribution provisions therein may be limited by applicable law. (j) The representations and warranties of the Issuer contained in the Issuer Documents are true and correct on the date hereof and will be true and correct on the Closing Date. (k) The Issuer will furnish such information, execute such instruments and take such other action in cooperation with the Purchaser as the Purchaser may reasonably request to qualify the Bonds for offer and sale under the "Blue Sky" or other securities laws and regulations of such states and other jurisdictions of the United States as the Purchaser may designate; provided, however, that the Issuer shall not be required to register as a dealer or broker in any such state or jurisdiction, nor execute a general consent to service of process or qualify to do business in connection with any such qualifications of the Series 1989 Bonds for sale in any jurisdiction. (1) The information to be provided by the Issuer for inclusion in the preliminary official statement and the official statement prepared with respect to the Series 1989 Bonds (the "Preliminary Official Statement" and the "Official Statement", respectively) relating to the Issuer will not contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and the Issuer consents to the use of such information in the Preliminary Official Statement and the Official Statement. It is specifically understood and agreed that the Issuer makes no representation as to the financial position or business condition of the Company, the Trustee or the Bank and does not represent or warrant as to any of the statements, materials (financial or otherwise), representations or - 5 - 0164M certifications furnished or to be made and furnished by the Company, the Trustee or the Bank in connection with the sale of the Series 1989 Bonds, or as to the correctness, completeness or accuracy of any of such statements, materials, representations, or certifications. 4. The Company represents and warrants that: (a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite legal right, power and authority and all necessary licenses and permits to own and operate its assets and properties and to carry on its business as now conducted and presently proposed to be conducted. (b) The Company has full right, power and authority to perform all transactions and agreements on the part of the Company to be performed under the terms of this Bond Purchase Agreement, the Amendatory Agreement, the Remarketing Agreement, as amended by an Amendment to Remarketing Agreement dated as of October 15, 1989 between the Purchaser and the Company (collectively, the "Amended Remarketing Agreement"), the Restated Letter of Credit Agreement, or as described in the Preliminary Official Statement and the Official Statement (collectively, the "Company Documents"), the Bonds, the Indenture and any and all other agreements, instruments or indentures relating hereto or thereto. (c) The execution, delivery and performance by the Company of this Bond Purchase Agreement has been duly authorized by all necessary corporate action on the part of the Company, and the execution, delivery and performance by the Company of the Company Documents and all other documents contemplated thereby will be duly authorized by all necessary action on the part of the Company, and this Bond Purchase Agreement is, and all other such documents, when executed and delivered, will be, legal, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditor's rights generally, and except for judicial discretion in the exercise of equitable remedies and to the extent, if any, that enforceability of the indemnification and contribution provisions therein may be limited by applicable law. (d) The execution, delivery and performance by the Company of the Company Documents and all other documents contemplated thereby, and compliance with the provisions - 6 - 016411 thereof, will not conflict with the Certificate of Incorporation, as amended, or By -Laws, as amended, of the Company or any statute, law, rule or regulation of any court or governmental authority or constitute a violation or breach of, or default under, any of the terms, conditions or provisions of any corporate restriction or any agreement, indenture, mortgage or instrument to which the Company is a party or by which it or any of its property is bound, or constitute a default under any of the foregoing, or result in the creation or imposition of any Lien of any nature upon any of the property of the Company under the terms of any such instrument or agreement. (e) No consent or approval is required to be obtained from, and no action need be taken by, or filing, qualification or registration made with. any federal or state agency or instrumentality in .connection with the execution, delivery or performance by the Company of the Company Documents, or, if any such action, consent, approval, filing, qualification or registration is required, the same has been duly obtained, taken or made or shall be; prior to the commencement of construction of the Project, is, or shall be, in full force and effect and constitutes, or shall constitute, a valid and sufficient consent or approval therefor or filing, qualification or registration therewith. (f) To the best knowledge of the Company, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, or before or by any court, public board or body, pending or threatened against or affecting the Company wherein an unfavorable decision, ruling or finding might (i) result in liability which, to the extent not covered by insurance might result in any materially adverse change in the business, properties or operations of the Company, (ii) materially adversely affect the transactions contemplated by the Company Documents or (iii) adversely affect the validity or enforceability against the Company of the Bonds, the Indenture or the Company Documents. (g) The Company will not knowingly or willfully take or omit to take any action which action or omission will in any way cause the proceeds from the sale of the Bonds to be applied in a manner contrary to that provided in the Indenture and the Agreement as in force from time to time. (h) The Company is not a party to or bound by any contract, agreement or other instrument, or subject to any judgment, order, writ, injunction, decree, rule or regulation - 7 - 0164M which might materially adversely affect the business, operations, properties, assets or condition, financial or otherwise, of the Company. (i) Neither the information in this Bond Purchase Agreement relating to the Project or the Company, the information to be provided by the Company for inclusion in the Preliminary Official Statement and the Official Statement relating to the Project and the Company, the information in the "Application for Approval" of the Series 1989 Bonds submitted by the Company to the Texas Department of Commerce nor any other document, certificate or written statement furnished or to be furnished to the Purchaser or the Issuer by or on behalf of the Company, contains or will contain any untrue statement of a material fact or omits or will omit a material fact necessary in order to make the statements contained herein and therein not misleading or incomplete. (j) The Company has not knowingly taken and will not knowingly take any action, and knows of no action that any other person, firm or corporation has taken or intends to take, which would cause interest on the Bonds to be includable in the gross income of the recipients thereof for federal income tax purposes. (k) The Company will deliver all opinions, certificates, letters and other instruments and documents it is required to deliver pursuant to the Company Documents, the Bonds and the Indenture. (1) The representations and warranties of the Company contained in the Company Documents are true and correct in all respects on the date hereof and will be true and correct in all respects on the Closing Date. (m) The Company will file or cause to be filed with the Internal Revenue Service of the United States Treasury Department or any other authorized governmental agency any and all statements or other instruments required under the Internal Revenue Code of 1986, as amended (the "Code"), including Section 103 and Sections 141-148 thereof, and the regulations thereunder, in order that the interest on the Series 1989 Bonds continues to be excludable from the gross income of the recipient thereof for federal income tax purposes thereunder. It is specifically understood and agreed that the Company makes no representation as to the financial position or business condition of the Issuer, the Trustee or the Bank and - 8 - 0164M does not represent or warrant as to any of the statements, materials (financial or otherwise), representations or certifications furnished or to be made and furnished by the Issuer, the Trustee or the Bank in connection with the sale of the Series 1989 Bonds, or as to the correctness, completeness or accuracy of any of such statements, materials, representations, or certificates. 5. The Purchaser represents, warrants and covenants that: (a) The representations and warranties of the Purchaser contained in this Bond Purchase Agreement are true and correct on the date of this Bond Purchase Agreement and will be true and correct as of the Closing Date. (b) The Purchaser is a business corporation duly organized and existing under the laws of the State of Delaware and has the full right, power and authority to execute and deliver this Bond Purchase Agreement and;kp perform its obligations hereunder, and this Bond Purchase Agreement has been duly authorized by the Purchaser and, when executed by the respective parties hereto, will constitute the legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms except as limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally, and except for judicial discretion in the exercise of equitable remedies and to the extent, if any, that enforceability of indemnification and contribution may be limited by applicable law. (c) With respect to the value of the Series 1989 Bonds and the security therefor, the Purchaser has not relied upon any determination, representation or finding made by the Issuer. (d) The Purchaser will not use any information relating to the Project or the Company in any official statement through the use of which the Series 1989 Bonds are to be offered without the consent of the Company. (e) The Purchaser will not use any information relating to the Bank in any official statement through the use of which the Series 1989 Bonds are to be offered without the consent of the Bank. (f) The Purchaser is a registered Broker -Dealer under the laws of Texas. - 9 - 0164M (g) To the best knowledge of the Purchaser, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, or before or by any court, public board or body, pending or threatened against or affecting the Purchaser wherein an unfavorable decision, ruling or finding might adversely affect the transactions contemplated hereby and by the Indenture, or which, in any way, might adversely affect the validity of the Amended Remarketing Agreement or any agreement or instrument to which the Purchaser is a party and which will be used or is contemplated for use in consummation of the transactions contemplated hereby and by the Supplemental Indenture and the Amended Remarketing Agreement. 6. (a) The Company agrees to indemnify and hold harmless the Issuer and the Purchaser, any principal, member, director, officer, official, agent or employee of the Issuer and the Purchaser, the Texas Department of Commerce or the City of Corpus Christi, Texas and any person who "controls" the Issuer or the Purchaser within the meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended, (collectively called for purposes of this Section 7 the "Indemnified Parties" and individually called an "Indemnified Party"), against any and all losses, claims, damages or liabilities, joint or several, to which any such Indemnified Party may become subject, under the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or otherwise, and to the extent permitted by law to reimburse the Indemnified Parties for any legal or other expenses reasonably incurred by any Indemnified Party in connection with investigating, preparing for or defending against any actions, commenced or threatened against such Indemnified Party, insofar as such losses, claims, damages or liabilities arise out of or are based upon (i) the untruth or inaccuracy or alleged untruth or inaccuracy of any representation or warranty of the Company set forth herein, or of any information or statement contained in the Preliminary Official Statement or the Official Statement, or (ii) any untrue statement or statement alleged to be untrue, of a material fact or omission or alleged omission to state a material fact necessary to make the statements made, in light of the circumstances in which they were made, not misleading, in any information or statement contained in the Preliminary Official Statement or Official Statement; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Preliminary Official Statement or the Official Statement in - 10 - 0164M reliance upon and in conformity with written information furnished to the Company by or on behalf of such Indemnified Party specifically for inclusion therein. This indemnity agreement shall be in addition to any liability which the Company may otherwise have to any of the Indemnified Parties. (b) If any action shall be brought against one or more of the Indemnified Parties based upon any of the above and in respect of which indemnity may be sought against the Company, each of such Indemnified Parties agrees to promptly notify the Company in writing, and the Company will assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party, the payment of all expenses and the right to negotiate and consent to settlement; provided, however, any Indemnified Party shall have the right to employ its own counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the employment of counsel by such Indemnified Party has been authorized in writing by the Company, (ii) the Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnified Party in the conduct of the defense of such action (in which case the Company shall not have the right to direct the defense of such action on behalf of the Indemnified Party), or (iii) the Company shall not in fact have employed counsel reasonably satisfactory to the Indemnified Party to assume the defense of such action. The Company shall not be liable for any settlement of any action or claim effected without its consent. (c) The indemnity agreements contained in this Section 6 shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of the Purchaser, the Issuer, or the Bank, or the delivery of and the payment for any Bonds hereunder, and shall survive the termination or cancellation of this Bond Purchase Agreement. The indemnity agreements contained in this Section 7 shall benefit the Indemnified Parties who are not parties directly to this Bond Purchase Agreement as though they were parties to this Bond Purchase Agreement. 7. The Company covenants and agrees with the Purchaser and the Trustee for the benefit of the holders from time to time of the Series 1989 Bonds that, on behalf of the Issuer, the Company will acquire, construct and equip the Project on the real estate as described in the Agreement in accordance with the plans and specifications therefor. 0164M 8. The Issuer's obligation to deliver the Series 1989 Bonds and to accept payment therefor will be conditioned upon the purchase of and payment for the Series 1989 Bonds in accordance herewith on the date of closing and upon the delivery to the Issuer of the approving opinion of Bond Counsel in acceptable form, and will be subject to the further condition that all documents, certificates, opinions and other items to be delivered at the closing pursuant hereto shall be reasonably satisfactory in form and substance to Bond Counsel. 9. The Purchaser's obligations hereunder to purchase and pay for the Series 1989 Bonds will be subject to (i) the performance by the Issuer of its obligations to be performed hereunder at or prior to the date of closing, (ii) the performance by the Company of its obligations to be performed hereunder at or prior to the date of closing, (iii) the continued accuracy in all material respects of the representations and warranties of the Issuer and the Company contained herein and in the Agreement as of the date hereof and as of the date of closing, (iv) the execution and delivery of the Supplemental Indenture, the Amendatory Agreement and the Letter of Credit in form and substance satisfactory to Purchaser; (v) the assignment of a rating on the Bonds of Aaa/P-1 by Moody's Investors Service Inc. or AAA/A-1+ by Standard and Poor's Corporation and (vi) in the discretion of the Purchaser, fulfillment of the following conditions on the date of closing: (a) No litigation is threatened or pending in any court (i) seeking to restrain or enjoin the issuance or delivery of the Bonds or the payment, collection or application of the proceeds thereof or payments under the Agreement and other moneys and securities pledged or to be pledged under the Indenture, or (ii) in any way questioning or affecting the validity of the Bonds or any provisions of the Issuer Documents, the Company Documents, or any proceedings taken by the Issuer with respect to the foregoing, or (iii) questioning the Issuer's creation, organization or existence or the titles to office of any of its officers, or its right, power or authority to enter into and perform its obligations under the Issuer Documents, or (iv) questioning the Company's organization or existence or right, power or authority to enter into and perform its obligations under the Company Documents; (b) The market value of the Series 1989 Bonds has not, in the opinion of the Purchaser, been adversely affected by reason of the fact that between the date hereof and the Closing Date: (i) legislation has been enacted by the - 12 - 0164M Congress of the United States or recommended to the Congress for passage by the President of the United States, or favorably reported for passage to either House of the Congress by any Committee of such House to which such legislation has been referred for consideration, or (ii) a decision has been rendered by a Court of the United States, or the United States Tax Court, or (iii) an order, ruling, regulation or official statement has been made by the Treasury Department of the United States, or the Internal Revenue Service, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon such revenues or other income as would be derived by the Issuer under the Agreement or of including in gross income for federal income tax purposes such interest on the Series 1989 Bonds as would be received by the Owners thereof, other than a person who, within the meaning of Section 147 of the Code, is a "substantial user" or, within the meaning of Section 143 of the Code, is a "related person"; (c) The market value of trip Series 1989 Bonds has not, in the opinion of the Purchasef, been materially adversely affected by reason of the fact that between the date hereof and the date of closing any legislation, ordinance, rule or regulation has been introduced in or enacted by any governmental body, department or agency in the State of Texas, or a decision has been rendered by any court of competent jurisdiction within the State of Texas; (d) No stop order, ruling, regulation or official statement by, or on behalf of, the Securities and Exchange Commission has been issued or made to the effect that the issuance, offering or sale of obligations of the general character of the Bonds, or the Series 1989 Bonds, as contemplated hereby or by the Preliminary Official Statement or the Official Statement, is in violation or would be in violation unless registered or otherwise qualified under any provisions of the Securities Act of 1933, as amended and as then in effect, or of the Securities Exchange Act of 1934, as amended and as then in effect, or of the Trust Indenture Act of 1939, as amended and as then in effect; (e) No legislation has been introduced in or enacted by the House of Representatives or the Senate of the Congress of the United States of America, nor has a decision by a court of the United States of America been rendered, or a ruling, regulation or official statement by or on behalf of the Securities and Exchange Commission or other governmental agency having jurisdiction of the subject matter been made or proposed to the effect that obligations of the general character of the - 13 - 0164M Bonds, or the Series 1989 Bonds, are not exempt from registration, qualification or other requirements of the Securities Act of 1933, as amended and as then in effect, or of the Securities Exchange Act of 1934, as amended and then in effect, or of the Trust Indenture Act of 1939, as amended and as then in effect; (f) No event has occurred which makes untrue, incorrect or inaccurate, in any material respect, any statement or information contained in the Official Statement (including the Appendices thereto), or the financial statements contained or referred to therein, or which is not reflected in the Official Statement or such financial statements but should be reflected therein for the purpose for which the Official Statement or such financial statements are to be used in order to make the statements and information contained therein not misleading in any material respect; (g) In the judgment of the Purchaser, the market price of the Series 1989 Bonds, or the market price generally of obligations of the general character of the Bonds, has not been adversely affected because: (i) additional material restrictions not in force as of the date hereof have been imposed upon trading in securities generally by any governmental authority or by any national securities exchange; (ii) the New York Stock Exchange or other national securities exchange, or any governmental authority, imposed, as to the Bonds or similar obligations, any material restrictions not now in force, or increased materially over those now in force, with respect to the extension of credit by, or the charge to the net capital requirements of, underwriters; (iii) a general banking moratorium has been established by federal or State authorities; or (iv) a war or major military action involving the United States of America has been declared, or any other national calamity has occurred, or any conflict involving the armed forces of the United States of America has escalated to such a magnitude as to materially adversely affect the Purchaser's ability to market the Series 1989 Bonds; (h) All matters relating to this Bond Purchase Agreement, the Series 1989 Bonds and the sale thereof, the Supplemental Indenture, the Company Documents, the Issuer Documents, and the consummation of the transactions contemplated by this Bond Purchase Agreement are approved by the Purchaser and its counsel but such approval may not be unreasonably withheld; and (i) At or prior to the Closing Date the Purchaser has received the following documents: - 14 - 0164M (i) Executed or certified copies of the Amendatory Agreement, the Letter of Credit and the Supplemental Indenture; The following legal opinions, certificates and other documents in form satisfactory to the Purchaser, dated the Closing Date, including those of the following: (A) A copy, duly certified by the Secretary of the Company, of the resolution adopted by the Company authorizing the execution and delivery of the Company Documents; (B) A copy., duly certified by the Secretary of the Issuer, of the resolution or resolutions adopted by the Issuer authorizing the execution and delivery of the Issuer Doau!nents and the issuance, execution, sale and delivery of the Series 1989 Bonds; (C) An opinion of counsel for the Company to the effect that in the opinion of such counsel each of the Company Documents have been duly authorized by and lawfully executed and delivered on behalf of the Company, is in full force and effect and is valid and binding upon and enforceable against the Company in accordance with its terms except to the extent limited by bankruptcy, insolvency, reorganization or other laws affecting creditors' rights and the customary restrictions on the availability of equitable remedies; (D) An opinion of counsel for the Issuer stating in the opinion of such counsel that each of the Issuer Documents have been duly authorized by and lawfully executed and delivered on behalf of the Issuer, that each of the Issuer Documents are in full force and effect and are valid and binding upon the - 15 - 0164M Issuer in accordance with the respective terms thereof, except to the extent limited by bankruptcy, insolvency, reorganization or other laws affecting creditors' rights and the customary restrictions on the availability of equitable remedies; (E) An opinion of counsel for the Bank to the effect that in the opinion of such counsel the Letter of Credit has been duly authorized and lawfully executed and delivered by the Bank, is in full force and effect and is valid and enforceable against the Bank in accordance with its terms and that none of the payments of principal and redemption price of and the interest on the Series 1989 Bonds or of the purchase price of the Series 1989 Bonds to the owners thereof from money drawn under the Letter of Credit will constitute voidable preferences or postpetition transfers of property under the federal bankruptcy code or any other applicable state or federal laws and regulations in the event of a bankruptcy or insolvency of any entity other than the Bank; (F) An opinion of the Attorney General of Texas to the effect that the Series 1989 Bonds have been issued in accordance with the Act; (G) An opinion of Bond Counsel to the effect that (a) the Issuer is duly authorized and entitled to issue the Series 1989 Bonds, (b) upon the execution, authentication and delivery thereof, the Series 1989 Bonds will be duly and validly issued and will constitute valid and binding special obligations of the Issuer and (c) under existing law, the interest on the Series 1989 Bonds at the Short Term - 16 - 0104M Rate is excludable from gross income for federal income tax purposes, except under certain circumstances to be more fully expressed in such opinion; (H) An opinion of counsel for the Trustee as to the due organization and existence of the Trustee, its due authorization and power to perform all duties of the Trustee, its due acceptance of such office and the due authentication of the Series 1989 Bond; (I) Letters of Bond Counsel, Bank Counsel, Issuer's Counsel, Trustee's Counsel, Company Counsel and Purchaser's Counsel (together with an appropriate reliance letter addressed to the Issuer) as to the sufficiency and accuracy of certain information contained in the Preliminary Official Statement and Official Statement; and (J) A Letter of Representation of the Bank as to certain matters in connection with the Bank's performance of its obligations under the Bank Documents and as to certain information in the Preliminary Official Statement and the Official Statement. (iii) From each of the Company and the Issuer a certificate, in form and substance satisfactory to the Purchaser, signed by its President or one of its Vice Presidents or in the case of the Issuer, President or Vice President of the Board of Directors, dated the Closing Date, certifying as follows: (a) the representations and warranties of such party contained in this Bond Purchase Agreement are true and correct on and as of the date of closing with the same effect as though such representations and warranties had been made on and as of the date of closing; and (b) such party has performed and complied with all agreements and conditions in this Bond Purchase Agreement required to be performed or complied with by it prior to or on the date of closing, and as of the date of closing no Event - 17 - 0164M of Default or default has occurred and is continuing with respect to the Series 1989 Bonds, the Agreement or the Indenture; (iv) A certificate in form and substance satisfactory to the Purchaser, of the President of the Company, dated the date of closing, as to the due incorporation, valid existence and good standing of the Company as a corporation under the laws of the State of Delaware and its qualification to do business in the State of Texas and the due execution by the Company of this Bond Purchase Agreement, the Company Documents and any and all other agreements and documents required to be executed and delivered by the Company in order for the Company to carry out, give effect to and consummate the transactions contemplated hereby and by the Amendatory Agreement and the Supplemental Indenture; (v) A certificate, satisfactory in form and substance satisfactory to the Purchaser, of one or more duly authorized officers of the Trustee, dated the date of closing, as to the due acceptance of the Indenture by the Trustee and the due authentication and delivery of the Series 1989 Bonds by the Trustee thereunder; (vi) Such additional certificates, instruments or other documents as the Purchaser may reasonably require to evidence the accuracy, as of the date of closing, of the representations and warranties herein contained, and the due performance and satisfaction by the Issuer, the Company and the Bank at or prior to such time of all agreements then to be performed and all conditions then to be satisfied by any one or all of them in connection with this Bond Purchase Agreement, the Agreement, the Letter of Credit or the Indenture. If the Issuer or the Company shall fail or be unable to satisfy the conditions of their obligations contained in this Bond Purchase Agreement, or if the Purchaser's obligations hereunder shall be terminated for any reason permitted by this Bond Purchase Agreement, this Bond Purchase Agreement shall terminate and neither the Issuer nor the Purchaser, except as provided in the following Section, nor the Company shall be under any further obligation hereunder. - 18 - 016411 10. The Purchaser shall deliver to the Issuer and the Company on the Closing Date a certificate of one or more duly authorized officers of the Purchaser, dated the date of closing, certifying: (i) that the representations and warranties of the Purchaser contained in this Bond Purchase Agreement are true and correct on and as of the date of closing with the same effect as though such representations and warranties had been made on and as of the date of closing and (ii) that the Bond Purchase Agreement and the Amended Remarketing Agreement have been duly executed by the Purchaser. 11. The Issuer and the Company agree that all representations, warranties and covenants made by them herein, and in certificates or other instruments delivered pursuant hereto or in connection herewith, shall be deemed to have been relied upon by the Purchaser notwithstanding any investigation heretofore or hereafter made by the Purchaser on its behalf, and that all representations, warranties and covenants made by the Issuer and the Company herein and therein and all of the Purchaser's rights hereunder and thereunder shall survive the delivery of the Series 1989 Bonds. 12. All expenses in connection with the preparation, delivery, recording and/or filing of the Supplemental Indenture, the Agreement, and any financing statement or notice with respect thereto, the printing of the Preliminary Official Statement and the Official Statement, and in connection with, the preparation, issuance and delivery of the Series 1989 Bonds, including the printing thereof, the fee of the Issuer as set forth in the Supplemental Indenture and the reasonable fees and expenses of Purchaser's Counsel not exceeding $15,000, may be paid, to the extent available and allowable without causing interest on the Series 1989 Bonds to the included in gross income for federal income tax purposes, out of the proceeds of the Series 1989 Bonds. In the event the Bonds are not sold, the proceeds thereof shall be insufficient therefor or the Company elects not to pay all or part of such expenses out of proceeds of the Series 1989 Bonds, such expenses shall be paid from the Company's funds by the Company. The foregoing undertakings shall survive the delivery of the Series 1989 Bonds and shall be effective whether or not any transaction hereby contemplated is consummated. 13. All communications hereunder shall be in writing and, unless otherwise directed in writing, shall be addressed as follows: If to the Issuer, at City of Corpus Christi, City Hall, 1201 Leopard Street, P.O. Box 9277, Corpus Christi, Texas 78469, Attention: City Manager; if to the Company, at U.S. - 19 - 0164M Highway 22, P.O. Box 345, Union, New Jersey 07083, Attention: Chief Financial Officer; if to the Purchaser, at 60 Broad Street - 7th Floor, New York, New York 10004, Attention: Municipal Finance Department, and if to the Bank, at 50 Rockefeller Plaza, New York, New York 10020, Attention: Vice President. A duplicate copy of each notice, request, demand or other communication given hereunder by the Purchaser or the Issuer to the other shall be given to the Company and the Bank at the above respective addresses and to the Trustee at 802 North Carancahua, Corpus Christi, Texas 78403, Attention: Corporate Trust Department, with a copy to Texas Commerce Bank, National Association, 600 Trans Street, Suite 1150, Houston, Texas 77002, Attention: Corporate Trust Dept., Tax Exempt Administration. 14. (a) The Series 1989 Bonds, together with interest thereon, shall constitute special obligations of the Issuer, and the principal of and interest on the Series 1989 Bonds and all other charges payable pursuant to or expenses or liabilities incurred by the Issuer with respect to the Issuer's obligations under this Bond Purchase Agreement, the Indenture and the Agreement shall be payable solely from the revenues of the Issuer derived and to be derived from the Agreement or from other sources specified in the Indenture. Neither the principals, members, officers, directors, agents, servants or employees of the Issuer, nor any person executing any of the Series 1989 Bonds, shall be liable personally thereon. The Series 1989 Bonds are not, and shall not be deemed to constitute, a debt of the State of Texas, or any municipality of the State of Texas including, without limitation, the City of Corpus Christi, Texas, and neither the State of Texas nor any such municipality including, without limitation, the City of Corpus Christi, Texas shall be liable thereon. (b) All covenants, stipulations, promises, agreements and obligations of the Issuer contained in the Issuer Documents, and in the other documents and instruments supplemental thereto (collectively, the "Financing Documents"), shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the Issuer and not of any member, director, officer, agent, servant or employee of the Issuer in his individual capacity, and no recourse under or upon any obligation, covenant or agreement in the Financing Documents contained or otherwise based upon or in respect of the Financing Documents, or for any claim based hereon or thereon or otherwise in respect hereof or thereof, shall be had against - 20 - r y g 'y A ie .s :o. 0164M Trustee, the Company, the Purchaser and any holder of any Bond by any xerographic, photographic, microfilm, micro -card or similar process and that each may destroy any original document so reproduced. Each party hereto agrees and stipulates that any such reproduction shall be admissible in evidence as the original in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made by the introducing party in the regular course of business) and that any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. CORPUS CHRISTI INDUSTRIAL DEVELOPMENT CORPORATION By: EXHIBIT, Name: Title: DE DIETRICH (USA), INC. By: Name: Title: DREXEL BURNHAM LAMBERT INCORPORATED By: Name: Title: - 22 - 016'IM STATE OF ): : ss: COUNTY OF _ ): On this day of , 1989, before me personally came , to me known, who, being by me duly sworn, did depose and say that (s)he resides at ; that (s)he is the of DE DIETRICH (USA), INC., the corporation described in and which executed the within Bond Purchase Agreement; and that (s)he signed his/her name thereto by order of the Board of Directors of said corporation. Notary Public 24 - 0164M STATE OF NEW YORK): ss: COUNTY OF NEW YORK): On this __ day of , 1989, before me personally came , to me known, who, being by me duly sworn, did depose and say that he resides at ; that he is a of DREXEL BURNHAM LAMBERT INCORPORATED, the business corporation described in and which executed the within Bond Purchase Agreement; and that he signed his name thereto by order of the Board of Directors of said business corporation. Notary Public - 25 -