HomeMy WebLinkAbout025823 ORD - 07/13/2004 RESOLUTION APPROVING THE RESOLUTION
BY THE NORTH PADRE ISLAND DEVELOPMENT CORPORATION
AUTHORiZING THE ISSUANCE OF SERIES 2004 BONDS
IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $4.5 MILLION
WHEREAS, North Padre Island Development Corporation (the "Corporation") was created
under the auspices of the City o£Corpus Christi, Texas (the "City"); and
WHEREAS, the Corporation was created in part for the purpose of assisting the
Reinvestment Zone Number Two, City of Corpus Christi, Texas (the "Zone") in implementing the
"Project and Financing Plan" with respect to the economic development of property within the Zone;
and
WHEREAS, the Corporation by resolution adopted July 13, 2004 authorized the issuance of
the hereinafter described bonds for the purposes described in said resolution; and
WItEREAS, it is deemed necessary and advisable that tlus Resolution be adopted.
THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS
CHRISTI THAT:
Section 1. The resolution (the "Resolution") adopted by the Corporation, in substantially the
form and substance as attached to this Resolution and made a part hereof for all purposes, is hereby
approved, and tax increment contract revenue bonds in a principal amount not to exceed $4,500,000
(the "Bonds"), may be issued for the purpose of providing all or a portion of the cost of the project
as specified in the Resolution (the "Project"); and said Resolution, Bonds and Project are hereby
approved.
Section 2. This Resolution shall be effective inwnediately from and after its passage.
SIGNED AND SEALED THIS 13THE DAY OF JULY, 2004.
City of Corpus Christi, Texas
City S~
(SEAL)
~P~OVED TI-nS /: "~^Y OV 3/,, 20O4:
MARY KAY FISCHER, CITY ATI~OKNEY
Corpus Christi, Texas
/ '2) of ~ ,2004
The above resolution was passed by the following vote:
Samuel L. Neal, Jr.
Brent Chesney
Javier D. Colmenero
Melody Cooper
Henry Garret[
Bill Kelly
Rex A. Kinnison
Jesse Noyola
Mark Scott
RESOLUTION AUTHORIZING THE ISSUANCE OF NORTH PADRE ISLAND
DEVELOPMENT CORPORATION TAX INCREMENT CONTRACT REVENUE BONDS,
SERIES 2004, IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $4,500,000;
APPROVING A BOND PURCHASE AGREEMENT AND OTHER CONTRACT
DOCUMENTS RELATING TO THE SERIES 2004 BONDS; AND CONTAINING OTHER
PROVISIONS RELATED THERETO
BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE NORTH PADRE
ISLAND DEVELOPMENT CORPORATION:
ARTICLE I
RECITALS
WHEREAS, by Ordinance No. 024270, adopted on November 14, 2000 (the "Creation
Ordinance"), the City of Corpus Christi, Texas (the "City"), created a tax increment reinvestment
zone known as "Remvestment Zone Number Two, City of Corpus Christi, Texas" CTIRZ Two"),
pursuant to the provisions oi'Chapter 31 l, Texas Tax Code, and approved a preliminary reinvestment
zone financing plan for TIRZ Two; and
WHEREAS, by Resolution No. 025040, adopted on October 8, 2002, the City authorized the
creation of the North Padre lsland Development Corporation (thc "Corporation") to aid, assist and
act on behalf of the City in the performance of the City's governmental and proprietary functions with
respect to the common good and general welfare of the City, as described in the Creation Ordinance;
and
WHEREAS, on February 25, 2003, the Corporation adopted a "RESOLUTION
AUTHORIZING THE ISSUANCE OF NORTH PADRE ISLAND DEVELOPMENT
CORPORATION TAX INCREMENT CONTRACT REVENUE BONDS, SERIES 2003, IN AN
AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $3 MILLION; APPROVING AN
INDENTURE OF TRUST AND OTHER CONTRACT DOCUMENTS RELATING TO THE
BONDS; AND CONTAINING OTHER PROVISIONS RELATED THERETO (the "Initial Bond
Resolution"); and
WHEREAS, pursuant to thc terms oftbe Iintial Bond Resolution, the Corporation approved
that certain Indenture of Trust by and between the Corporation and JPMorgan Chase Bank dated as
of Febraary 1, 2003 (the "Indenture"), pursuant to which the Corporation set forth the terms and
conditions by which it could issue, sell or deliver its bonds, notes or other obligations in accordance
with thc temps of the Indenture to fund Project Costs for the benefit of TIRZ Two, established
various Funds and Accounts for the benefit of the owners of such bonds, notes or other obligations,
and assigned and pledged to the Trustee such Funds and Accounts for the benefit of such owners; and
WHEREAS, pursuant to the terms of the Initial Bond Resolution, the Corporation approved
that certain Tri-Party Agreement by and between the City, TIRZ Two, and the Corporation dated as
of February 1,2003 (the "Tri-Party Agreement"), pursuant to which the Corporation was delegated
the power and authority to issue, sell or deliver its bonds, notes or other obligations in accordance
with the temps of the Tri-Party Agreement; and
%fflEREAS, on February 25, 2003, the City approved the terms of the Initial Bond
Resolution. the sale of bonds in an amount not to exceed $3,000,000, and approved the Indenture
and the Tri-Party Agreement; and
WHEREAS, pursuant to the terms of the Initial Bond Resolution and the Indenture, on April
30, 2003, the Corporation issued and delivered its North Padre Island Development Corporation Tax
Increment Contract Revenue Bonds, Series 2003, issued in the aggregate principal amount of
$2,500,000 (the "Series 2003 Bonds"); and
WHEREAS, the Corporation reserved the right m the Indenture to issue "Additional Parity
Bonds" (as defined in the Indenture) on a parity with the Series 2003 Bonds; and
WHEREAS, on November 11,2003, the City approved the terms of a resolution authorizing
the sale of bonds in an amount not to exceed $2,500,000 (the "Series 2003A Resolution); and
9ZHEREAS, pursuant to the terms of the Series 2003A Resolution and the Indenture, on
December 18, 2003, the Corporation issued and delivered its North Padre Island Development
Corporation Tax Increment Contract Revenue Bonds, Series 2003A, issued in the aggregate principal
amount of $2,500,000 (the "Sehes 2003A Bonds") on a pariW with the Series 2003 Bonds; and
WHEREAS, the bonds heremaflcr authorized are the third series of bonds to be issued under
the terms of thc Indenture, shall constitute "Additional Parity Bonds", and upon the delivery of the
bonds hereinafter authorized, the aggregate principal amount of the Series 2003 Bonds, the Series
2003A Bonds and the bonds hereinafter authorized will not exceed $12,000,000; and
WHEREAS, thc City is not located in a county with a population of 2.1 million or more
residents; and
WHEREAS, as permitted by Chapter 431, Texas Transportation Code, as amended, the
Corporation desires to issue bonds hereinafter authorized upon the terms and conditions and for the
purposes herein provided.
ARTICLE II
DEFiNITIONS AND iNTERPRETATIONS
Section 2. l: Definitions. In this Resolution, the following terms shall have the following
meanings, unless the context clearly indicates otherwtse. Terms not defined herein shall have the
meanings assigned to such terms in the Indenture:
The term "Audit" shall mean the audited annual financial statements of the Corporation
prepared by an independent auditor.
The tern~ "Authorized Denominations" shall mean $100,000 or anyintegrahnultiple o f$5,000
in excess of $100.000.
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The term "Authorized Representative" shall mean the President or any Vice President of the
Corporation, the Executive Director of the Corporation, or any other person designated by the Board
of Directors oftbe Corporation to act in such capacity.
The term "Bond Resolution" shall mean, collectively, the resolutions authorizing the rssuance
of the Series 2003 Bonds and the Series 2003A Bonds, and this Resolution.
The term "Comptroller" shall mean the Comptroller o fPubhc Accounts of the State of Texas.
The term "Designated Trust Office" shall mean the designated corporate trust office of the
Registrar, which, as of the date of adoption of this Resolution, ks located in Dallas, Texas.
The term "Indenture" shall mean the Indenture of Trust dated as o fFebruary 1, 2003 between
the Corporation and JPMorgan Chase Bank, and its successors tn that capacity.
The term "Issuance Date" shall mean the date on which the Series 2004 Bonds are
authenticated by the Registrar and delivered to and paid for by the Underwriter.
The term "MSRB" shall mean the Municipal Securities Rulemaking Board.
Thc term "NRMSIR" shall mean each person whom the SEC or its staffhas determined to
be a nationally recognized municipal securities reformation repository within the meaning of the Rule
from time to time.
The term "Paying Agent" shall mean the Registrar.
The term "Project" shall mean the improvements described in the Project and Financing Plan
to be financed with the proceeds of the Series 2004 Bonds.
The term "Purchase Contract" shall mean the Bond Purchase Agreement between the
Corporation and the Underwriter, executed under authority of this Resolution.
The term "Record Date" shall mean, for any Interest Payment Date, the last Business Day of
thc month next preceding each Interest Payment Date.
The term "Registrar" shall mean JPMorgan Chase Bank, and its successors in that capacity.
The term"Resolution" shall mcan this resolution, and all amendments hereof and supplements
hereto.
The ter~n "Rule" shall mean SEC Rule 15c2-12, as amended from time to time.
The tertn "SEC" shall mean the United States Securities and Exchange Commission.
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The term "Series 2003 Bonds" shall mean the Corporation's Tax Increment Contract Revenue
Bonds, Series 2003, originally issued tn the aggregate principal amount of $2,500,000.
The term "Series 2003A Bonds" shall mean the Corporation's Tax Incren~nt Contract
Revenue Bonds, Series 2003A, origtnally issued in the aggregate principal amount of $2,500,000.
The term "Series 2004 Bonds" or "Bonds" shall mean the Corporation's Tax Increment
Contract Revenue Bonds, Series 2004, authorized by this Resolution.
Thc term "SID" shall mean any person designated by the State of Texas or an authorized
department, officer, or agency thereof as, and detemfined by the SEC or its staff to be, a state
information depository within the meamng of the Rule fi.om time to time.
The term "Underwriter" shall mean M.E. Allison & Co., Inc.
Section 2.2: Interpretations. All terms defined herein and all pronouns used in this Resolution
shall be deemed to apply equally to singular and plural and to all genders. The titles and headings of
the articles and sections of this Resolution have been inserted for convenience of reference only and
are not to be considered a part hereof and shall not in any way modify or restrict any of the ter~ns or
provmions hereo£ This Resolution and all the terms and provisions hereofshallbe hberally construed
to effectuate the purposes set forth herein and to sustain the validity of the Parity Bonds and the
validity of the lien on and pledge of the Pledged Revenues to secure the payment of the Parity Bonds.
ARTICLE III
TERMS OF THE BONDS
Section 3. l: MaXm~um Amount, Purpose, Authorization. The Series 2004 Bonds shall be
issued in fully registered form, without coupons, numbered consecutively fi.om R-1 upward, in the
aggregate principal amount not to exceed $4,500,000 for the purpose of(l) paying Project Costs and
(2) paying Costs of Issuance, all under and pursuant to the authority of the Act and all other
apphcable law. None of the proceeds of the Series 2004 Bonds shall be used for the purpose of
paying or otherwise providing for educational facilities.
Section 3.2: Sale of the Series 2004 Bonds. The Authorized Representative is hereby
authorized to act for and on behalf of the Corporation in connection with the issuance and sale of the
Series 2004 Bonds. In that capacity, the Authorized Representative, acting for and on behalf of the
Corporation, shall determme the date for issuance and sale of the Series 2004 Bonds and shall
approve, execute and deliver the Purchase Contract with the UnderWriter. Interest on the Series 2004
Bonds shall be payable on the date or dates described m the Purchase Contract (the "Interest Payment
Dates"). The Series 2004 Bonds shall bear interest at the fixed rate or rates per annum calculated on
the basis of a 360-day year of twelve 30-day months, as set forth in the Purchase Contract. There
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shall be set forth in the Purchase Contract the principal amount oftbe Series 2004 Bonds to be sold
(in no event, however, to exceed the maxm~um principal amount authorized in Section 3.1 hereof),
the price at which thc Series 2004 Bonds shall be sold, the principal amortization schedule for the
Series 2004 Bonds (including, without limitation, the maturity date or dates for the Series 2004
Bonds (the "Principal Installment Payment Dates") and the designation of any of the maturities of the
Series 2004 Bonds as term bonds and any smking fund payments to be deposited to the credit of the
Debt Service Fund relating to any term bond so designated), the redemption features of the Series
2004 Bonds, the rate or rates of interest to bo borne by the Series 2004 Bonds, the dated date of the
Series 2004 Bonds (the "Dated Date"), and other matters relating to the issuance, sale and delivery
of the Series 2004 Bonds, including, without limitation, the designation given to the Series 2004
Bonds and the obtaining of insurance or other forms of credit enhancement with respect to the Series
2004 Bonds; provided, that the Purchase Contract must provide for the Series 2004 Bonds to be sold
on terms that produce (i) interest rate or rates for the Series 2004 Bonds in a multiple of I/8 of 1%
or 1/20 of 1% or 1/100 of 1%, (ii) a "net effective interest rate" not m excess of 10.00%, (iii) a final
maturity date of the Series 2004 Bonds that shall not extend beyond December 15, 2022, and (tv)
interest rates such that the highest interest rate on any Series 2004 Bond does not exceed the lowest
interest rate on such Series 2004 Bonds by more than 4.00%. The Authorized Representative's
approval of the Purchase Contract shall be conclusively evidenced by the execution thereof.
Section 3.3: Execution of Series 2004 Bonds. The Series 2004 Bonds shall be signed on
behalf of the Corporation by an Authorized Representative and countersigned by the Secretary by
their manual, lithographed, or facsimile signatures. Such facsimile signatures on the Series 2004
Bonds shall have the same effect as if each of the Series 2004 Bonds had been signed manually and
in person by each of said officers. If any officer of the Corporation whose manual or facsimile
signature shall appear on the Series 2004 Bonds shall cease to be such officer before the
authentication of such Series 2004 Bonds or before the delivery of such Series 2004 Bonds, such
manual or facsimile signature shall nevertheless be valid and sufficient for all purposes as if such
officer had remained in such office
Section 3.4: Approval By Attorney General; Registration by Comptroller. The Series 2004
Bonds to be imtially issued shall be delivered to the Attorney General of Texas for examination and
approval and shall be registered by the Comptroller. The manually executed registration certificate
of the Comptroller substantially in the form provided in Exhibtt A to tkis Resolution shallbe affixed
or attached to the Series 2004 Bonds to be mitially issued and delivered to the Underwriter.
Section 3.5: Authentication. Except for the Series 2004 Bonds to be initially issued, which
need not be authenticated by an authorized signatory of the Registrar, only such Series 2004 Bonds
as shall bear thereon a certificate of authentication substantially in the form provided in Exhll>it A to
this Resolution, manually executed by an authorized representative of the Registrar, shall be entitled
to the benefits of this Resolution or shall be valid or obligatory for any purpose. Such duly executed
certificate of authentication shall be conclusive evidence that the Series 2004 Bond so authenticated
was delivered by the Registrar hereunder.
The Registrar, when it authenticates a Series 2004 Bond, shall cause the Dated Date to be
stamped, typed or imprinted on such Series 2004 Bond. Series 2004 Bonds issued on transfer of or
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in exchange for other Series 2004 Bonds shall bear the stone Dated Date as the Series 2004 Bond or
Series 2004 Bonds presented for transfer or exchange.
Section 3.6. Payment of Principal and Interest. The Registrar is hereby appointed as the
registrar and paying agent for the Series 2004 Bonds. The principal of the Series 2004 Bonds shall
be payable, without exchange or collection charges, in any coin or currency of the United States of
America which, on the date of payment, is legal tender for the payment of debts due the United States
of America, upon their presentation and surrender as they respectively become due and payable,
whether at maturity or by prior redemption, at the Designated Trust Office. The interest on each
Series 2004 Bond shall be payable by check payable on the Interest Payment Date, mailed by the
Registrar on or before each Interest Payment Date to the Owner of record as of the Record Date, to
the address of such Owner as shown on the Register, or by such other method, acceptable to the
Registrar, requested by and at the risk and expense o15 the Owner.
Ir'the date for the payment of principal or interest on any Series 2004 Bond is not a Business
Day, then the date for such payment shall be the next succeeding Business Day, and payment on such
date shall have the same force and effect as il'made on the origmal date such payment was due.
Section 3.7. Successor Registrars. The Corporation covenants that at all times wlfile any
Series 2004 Bonds are Outstandtng it will provide a commercial bank or trust company organized
under the laws of the State of Tcxas or other entity duly quarried and legally authorized to act as
Registrar for the Series 2004 Bonds. The Corporation reserves the right to change the Registrar for
the Series 2004 Bonds on not less than s~xty (60) days written notice to the Registrar, so long as any
such notice is effective not less than sixty (60) days prior to the next succeeding Principal Installment
Payment Date or Interest Payment Date on the Series 2004 Bonds. Promptly upon the appointment
of any successor Registrar, the previous Regtstrar shall deliver the Register or a copy thereof to the
new Registrar, and the new Registrar shall notify each Owner, by United States mail, first class
postage prepaid, of such change and of the address of the new Registrar. Each Registrar hereunder,
by acting in that capacity, shall be deemed to have agreed to the provisions of this Section.
Section 3.8. Special Record Date. If interest on any Series 2004 Bond is not paid on any
Interest Payment Date and continues unpaid for thirty (30) days thereafter, the Registrar shall
estabhsh a new record date for the payment of such interest, to be known as a "Special Record Date."
The Registrar shall establish a Special Record Date when funds to make such interest payment are
received ~om or on behalf of the Corporation. Such Special Record Date shall be fifteen (15) days
prior to the date fixed for payment of such past due interest, and notice of the date o£payment and
the Special Record Date shall be sent by United States mail, first class, postage prepaid, not later than
five (5) days prior to the Special Record Date, to each Owner or record of an affected Series 2004
Bond as ol'the close of business on the day prior to the mailing of such notice.
Section 3.9. Ownership; Unclaimed Principal and Interest. Subject to the further provisions
of this Section, the Corporation, the Registrar and any other person may treat the person in whose
name any Series 2004 Bond is registered as the absolute Owner of such Series 2004 Bond for the
purpose of making and receiving payment oi' the pnncipal of or interest on such Series 2004 Bond,
and for all other purposes, whether or not such Series 2004 Bond is overdue, and neither the
Corporation nor the Registrar shall be bound by any notice or knowledge to the contrary. All
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payments made to the person deemed to be the Owner of any Series 2004 Bond in accordance with
this Section 3.9 shall be valid and effectual and shall discharge the liability of the Corporation and the
Registrar upon such Series 2004 Bond to the extent of thc sums paid.
Amounts held by the Registrar which represent principal of and interest on the Series 2004
Bonds remaining unclaimed by the Owner after the expiration of three (3) years fi.om the date such
amounts have become due and payable shall be reported and disposed of by the Registrar in
accordance with the apphcable provisions of the Paying Agent Agreement.
Section 3.10. Registration, Transfer, and Exchange. So long as any Series 2004 Bonds
remain Outstanding, the Registrar shall keep the Register at the Designated Trust Office and, subject
to such reasonable regulations as it may prescribe, the Registrar shall provide for the registration and
transfer of Series 2004 Bonds in accordance with the terms of this Resolution.
Each Series 2004 Bond shall be transferable only upon the presentation and surrender thereof
at the Designated Trust Office of the Registrar, duly endorsed for transfer, or accompanied by an
assignment duly executed by the Registered Owner or his authorized representative in form
satisfactory to the Registrar. Upon due presentation of any Series 2004 Bond in proper form for
transfer, the Registrar shall authenticate and deliver tn exchange therefor, within three (3) Business
Days after such presentation, a new Series 2004 Bond or Series 2004 Bonds, registered in the name
of the transferee or transferees, in Authorized Denominations and of the same maturity, aggregate
principal amount, and Dated Date, and bearing interest at the same rote as the Series 2004 Bond or
Series 2004 Bonds so presented. Anything to the contrary herein notwithstanding, no Series 2004
Bond shall be issued in a denomination of less than $100,000.
All Series 2004 Bonds shall be exchangeable upon presentation and surrender thereof at the
Designated Trust Office of the Registrar for a Series 2004 Bond or Series 2004 Bonds of the same
maturity, Dated Date, and interest rate and in any Authorized Denomination, in an aggregate amount
equal to the unpaid principal amount of the Series 2004 Bond or Series 2004 Bonds presented for
exchange The Registrar shallbe and is hereby authorized to authenticate and deliver exchange Series
2004 Bonds in accordance with the provisions o fthis Section 3.10. Each Series 2004 Bond delivered
in accordance with this Section 3.10 shall be entitled to the benefits and security of this Resolution
to the same extent as the Series 2004 Bond or Series 2004 Bonds m lieu of which such Series 2004
Bond is delivered.
The Corporation or the Registrar may require thc Owner of any Series 2004 Bond to pay a
sum sufficient to cover any tax or other governmental charge that may be imposed in connection with
the transfer or exchange of such Series 2004 Bond. Any fee or charge of the Registrar for such
transfer or exchange shall be paid by the Corporation.
The Registrar shall not be required to transfer or exchange any Series 2004 Bond during the
period beginning on a Record Date or a Special Record Date and ending on the next succeeding
Interest Payment Date or to transfer or exchange any Series 2004 Bond called for redemption during
the period beginning thirty days prior to the date fixed for redemption and ending on the date fixed
for redemption; provided, however, that this hmitation shall not apply to the exchange by the Owner
of the unredeemed portion ora Series 2004 Bond called for redemption in part.
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Section 3.11. Cancellation of Series 2004 Bonds. All Series 2004 Bonds paid or redeemed
m accordance w~th this Resolution, and all Series 2004 Bonds in lieu of which exchange Series 2004
Bonds or replacement Series 2004 Bonds are authenticated and delivered in accordance herewith,
shall be canceled and thereafter treated in accordance with the Reglstrar's document retention
pohcies.
Section 3.12. Mutilated, Lost, or Stolen Series 2004 Bonds. Upon the presentation and
surrender to the Registrar of a mutilated Series 2004 Bond, the Registrar shall authenticate and
deliver in exchange therefor a replacement Series 2004 Bond of like maturity, Dated Date, interest
rate and principal amount, bearing a number not contemporaneously Outstanding. The Corporation
or the Registrar may require the Owner of such Series 2004 Bond to pay a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection therewith and any other
expenses connected therewith, including the fees and expenses of the Registrar.
If any Series 2004 Bond is lost, apparently destroyed, or wrongfully taken, the Corporation,
pursuant to the applicable laws of the State of Texas and in the absence ofnoti6e or knowledge that
such Series 2004 Bond has been acqmred by a bona fide purchaser, shall execute and the Registrar
shall authenticate and dehver a replacement Series 2004 Bond of like maturity, Dated Date, interest
rate and pnncipal amount, bearing a number not contemporaneously Outstanding, provided that the
Owner thereof shall have:
(1)
furnished to the Registrar satisfactory evidence of the ownership of and the
ctrcumstances of the loss, destruction or theft of such Series 2004 Bond;
(2)
furnished such security or mdemmty as may be required by the Registrar to
save it and the Corporation harmless;
(3)
paid all expenses and charges m connection therewith, including, but not
limited to, printing costs, legal fees, fees of the Registrar and any tax or other
governmental charge that may be imposed; and
(4) met any other reasonable requirements of the Corporation and the Regtstrar.
If, after the delivery of such replacement Series 2004 Bond, a bona fide purchaser of the original
Series 2004 Bond in heu of which such replacement Series 2004 Bond was issued presents for
payment such original Series 2004 Bond, the Corporation and the Registrar shall be entitled to
recover such replacement Series 2004 Bond from the person to whom it was delivered or any person
taking therefrom, except a bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the
Corporation or the Registrar in connection therewith.
If any such mutilated, lost, apparently destroyed or wrongfully taken Series 2004 Bond has
become or is about to become due and payable, the Corporation in its discretion may, instead of
issuing a replacement Series 2004 Bond, authorize the Registrar to pay such Series 2004 Bond.
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Each replacement Series 2004 Bond delivered in accordance with this Section 3.12 shall be
entitled to the benefits and security of this Resolution to the same extent as the Series 2004 Bond or
Series 2004 Bonds in lieu of which such replacement Series 2004 Bond is delivered.
Section 3 13: Redemption. The Series 2004 Bonds are subject to redemption under the
conditions, on the dates, and for the redemption prices set forth in the Purchase Contract, which shall
be incorporated into the Form of Bond set forth in Exhibit A hereto. If less than all of the Series
2004 Bonds are to be redeemed, the Corporation shall determine the particular Series 2004 Bonds
or portions thereof to be redeemed.
Principal amounts may be redeemed only in integral multiples of $5,000. Ifa Series 2004
Bond subject to redemption is in a denomination larger than $100,000, a portion of such Series 2004
Bond may be redeemed, but only in integral multiples of $5,000 and so long as the unredeemed
portion of any Series 2004 Bonds so redeemed in part is not less than $100,000. Upon surrender of
any Series 2004 Bond for redemption m part, the Registrar, in accordance with Section 3.10 hereof,
shall authenticate and deliver in exchange therefor a Series 2004 Bond or Series 2004 Bonds of like
maturity, Dated Date, and interest rate in an aggregate principal amount equal to the unredeemed
portion of the Series 2004 Bond so surrendered.
Unless waived by the Owner, notice of any redemption identifying the Series 2004 Bonds to
be redeemed in whole or in part shall be given by the Registrar at least thirty days prior to the date
fixed for redemption by sending written notice by first class mail, postage prepaid, to the Owner of
each Series 2004 Bond to be redeemed in whole or in part at the address shown on the Register.
Such notices shall state the redemption date, thc redemption price, the place at wkich Series 2004
Bonds are to be surrendered for payment and, if less than all Series 2004 Bonds Outstanding of a
particular maturity are to be redeemed, the numbers of the Series 2004 Bonds or portions thereof of
such maturity to be redeemed. Any notice given as pro vided in this Section 3.13 shallbe conclusively
presumed to have been duly given, whether or not the Owner receives such no rice. By the date fixed
for redemption, due provision shall be made with the Registrar for payment of the redemption price
of the Series 2004 Bonds or portions thereof to be redeemed, plus accrued interest to the date fixed
for redemption. When Series 2004 Bonds have been called for redemption in whole or in part and
due provision has been made to redeem the same as herein provided, the Series 2004 Bonds or
portions thereof so redeemed shall no longer be regarded as Outstanding except for the purpose of
receiving payment so lely fi.om the funds so provided for redemption, and the rights of the Owners
to collect interest which would otherwise accrue after the redemption date on any Series 2004 Bond
or portion thereo£called for redemption shall terminate on the date fixed for redemption.
Should ownership of the Series 2004 Bonds be established in accordance with the book-entry-
only system of The Depository Trust Company ("DTC"), the Paying Agent for the Series 2004 Bonds
shall notify DTC that in the exercise by DTC of the selection of Series 2004 Bonds for redemption,
the Series 2004 Bonds shall be so selected by DTC in such a manner that no beneficial owner of
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Series 2004 Bonds shall own less than $100,000 in principal amount of any Series 2004 Bonds of any
one maturity.
Section 3.14: Lirmted Obligations. THE SERIES 2004 BONDS ARE A LIMITED
OBLIGATION OF THE CORPORATION, PAYABLE SOLELY, TOGETHER WITH THE
CURRENTLY OUTSTANDING PARITY BONDS, OUT OF THE TRUST ESTATE, WHICH IS
THE SOLE ASSET OF THE CORPORATION PLEDGED THEREFOR. THE SERIES 2004
BONDS ARE OBLIGATIONS SOLELY OF THE CORPORATION AND DO NOT
CONSTITUTE, WITHIN THE MEANING OF ANY STATUTORY OR CONSTITUTIONAL
PROVISION, AN INDEBTEDNESS, AN OBLIGATION OR A LOAN OF CREDIT OF THE
CITY OF CORPUS CHRISTI, THE STATE OF TEXAS, NUECES COUNTY, TEXAS, DEL
MAR COLLEGE, NUECES COUNTY HOSPITAL DISTRICT, REINVESTMENT ZONE
NUMBER TWO, CITY OF CORPUS CHRISTI, TEXAS, OR ANY OTHER MUNICIPALITY,
COUNTY, OR OTHER MUNICIPAL OR POLITICAL CORPORATION OR SUBDIVISION OF
THE STATE OF TEXAS. NEITHER THE CITY OF CORPUS CHRISTI, NUECES COUNTY,
TEXAS, DEL MAR COLLEGE, NUECES COUNTY HOSPITAL DISTRICT NOR
REINVESTMENT ZONE NUMBER TWO, CITY OF CORPUS CHRISTI, TEXAS ARE
OBLIGATED TO MAKE PAYMENTS ON THE SERIES 2004 BONDS OR THE
OUTSTANDING PARITY BONDS.
ARTICLE IV
FORM OF SERIES 2004 BONDS AND CERTIFICATES
Section 4.1: Forms. The fom~ of the Series 2004 Bonds, including the form of the Registrar's
authentication certificate, the form of assignment, and the form of the Comptroller's Registration
Certificate for the Series 2004 Bonds to be initially issued, shall be in substantially the form as set
forth m Exkibit A to this Resolution.
Section 4.2: Legal Opinion; Cusip Numbers; Bond Insurance. The approving opimon of
Bond Counsel and CUSIP Nnmbers may be printed on the Series 2004 Bonds, but errors or
omissions in the printing of such opinion or such numbers shall have no effect on the validity of the
Series 2004 Bonds. If bond insurance is obtained by the Underwriter, the Series 2004 Bonds may
bear an appropriate legend as provided by the tnsurer.
ARTICLE V
ADDITIONAL BONDS
Sectton 5.1: Additional Parity Bonds. The Corporation reserves the right to issue, for any
lawful purpose (including the refunding of any previously issued Parity Bonds), one or more seres
of Additional Parity Bonds payable fi.om and secured by a first hen on the Pledged Revenues, on a
panty with the Seres 2003 Bonds, thc Series 2003A Bonds and the Series 2004 Bonds; provided,
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however, that Additional Panty Bonds may be issued only in accordance with the provisions of
Article III of the Indenture.
Section 5.2: Subordinate Lien Obhl~ations. The Corporation reserves the right to issue, for
any lawful purpose, Subordinate Lien Obligations secured in whole or in part by liens on the Pledged
Revenues that are junior and subordinate to the lien on Pledged Revenues securing payment of the
Parity Bonds. Such Subordinate Lien Obligations may be further secured by any other source of
payment lawfully available for such purposes
Section 5 3: Reserve Fund. No Reserve Fund has been establ/shed for the benefit of the
Series 2004 Bonds. The Corporation reserves the right to establish a Reserve Fund for the benefit of
the Series 2003 Bonds, the Series 2003A Bonds, the Series 2004 Bonds or any Additional Parity
Bonds.
Section 5.4: Representations regardmg Series 2004 Bonds Issued as Additional Parity Bonds.
The Corporation hereby represents that:
(a)
The Series 2004 Bonds mature on, and interest is payable on, the Principal Installment
Payment Dates and Interest Payment Dates, respectively; and
(b)
The Corporation is not in material default with the terms of the Indenture, any Bond
Resolution, the Th-Party Agreement or any other agreement to which ~t is a party.
The Corporation further represents that upon the issuance of the Series 2004 Bonds, the aggregate
principal amount of Parity Obligations issued by the Corporation to fund Project Costs is less than
$12,000,000, and therefore the Corporation is not required to satisfy the requirements of subsections
(c) or (d) of Section 3.2 of the Indenture with respect to the issuance of the Series 2004 Bonds.
ARTICLE VI
GENERAL COVENANTS
Section 6.1: Punctual Payment of Parity Bonds. The Corporation will punctually pay or
cause to be paid the interest on and principal of all Panty Bonds according to the terms thereof and
will faithfully do and perform, and at all times fully observe, any and all covenants, undertakings,
stipulations and proxasions contained m this Resolution and in any resolution authorizing the issuance
of Additional Panty Bonds.
Section 6.2: Maintenance of TIRZ Two. So long as any Parity Bonds remain Outstanding,
the Corporation covenants that it will, within thc limits of its authority, comply with all contractual
provisions and agreements entered into by it and with all valid rules, regulations, directions or orders
o fany governmental, administrative, or judicial body promulgating same, noncompl/ance with wkich
would materially and adversely affect the operation of TIRZ Two.
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Section 6.3: Accounts, Records, and Audits. So long as any Parity Bonds remain
Outstanding, the Corporation covenants and agrees that it will maintain a proper and complete system
of records and accounts pertaining to the operation of TIRZ Two and the Corporation in which full,
tree and proper entries will be made of all dealings, transactions, business and affairs wltich in any
way affect or pertain to TIRZ Two, the Corporation or the Pledged Revenues. The Corporation shall
after the close of each Fiscal Year cause an Audit to be prepared by an independent certified public
accountant or independent firm of certified public accountants. All expenses incurred m preparing
Audits shall be maintenance and operation expenses.
Section 6.4: Pledge and Encumbrance of Pledged Revenues. (a) The Corporation covenants
and represents that it has the lawful power to create a lien on and to pledge the Pledged Revenues
to secure the payment of the Parity Bonds and has lawfully exercised such power under the
Constitution and laws of the State o fTexas. The Corporation further covenants and represents that,
other than to the payment of the Parity Bonds, the Pledged Revenues are not and will not be made
subject to any other lien pledge or encumbrance to secure the payment of any debt or obligation of
the Corporation, unless such lien, pledge or encumbrance is jumor and subordinate to the lien and
pledge securing payment of the Parity Bonds.
(b) The provisions of subsection (a) of this Section 6.4 notwithstanding, the hen on, pledge
of, and rights in and to the Pledged Tax Increments established, made, and granted in the Indenture
and pursuant to subsection (a) of tiffs Section 6.4 shall constitute a first and senior lien thereon,
subject only to the rights, if any, of the holders of bonds or other obligations that have been
heretofore or are hereafter issued by a Participant that are payable fi.om and secured by a general levy
of ad valorem taxes throughout the taxing jurisdiction of the Participant.
(c) Each of the Participants has agreed to contribute its Contract Tax Increment to the Tax
Increment Fund, m accordance with the Act and its Participant Contract, and that each of the
Participants, other than the District, has agreed to contribute and is currently contributing as its
Contract Tax Increment 100% of its Tax Increment. Each of the Participants, other than the District,
has agreed to contribute its Contract Tax Increment to the Fund for the term of the Zone, which is
scheduled to expire on December 31, 2022. In the District Agreement, the Dtstrict has agreed to
contribute 100% of its Contract Tax Increment to the Fund in the first five years of the District
Agreement, 80% of its Contract Tax Increment to the Fund in the sixth year of the District
Agreement, 60% of its Contract Tax Increment to the Fund in the seventh year of the District
Agreement, 40% of its Contract Tax Increment to the Fund in the eighth year of the District
Agreement, 20% of its Contract Tax Increment to the Fund in the ninth year of the District
Agreement, with such obligation of the District ending after the ninth year of the District Agreement.
The Corporation will use reasonable efforts to cause the Participants to levy and annually assess and
collect ad valorem taxes at such rates and amounts as may be necessary and required to pay in full
and on a timely basis all debt service requirements on each Participant's respective outstanding bonds
or other obligations that are payable in whole or in part fi.om and secured by a general levy of ad
valorem taxes throughout such Participant without resort to the use of any portion of the Contract
Tax Increment derived fi'om the tax collections of such Participants for such purpose, and to cause
thc portion of such taxes representing Contract Tax h~cremcnts to be paid to the Tax Increment Fund.
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Section 6.5: Owners' Remedies. This Resolution shall constitute a contract between the
Corporation and the Owners of the Parity Bonds from time to time Outstanding and this Resolution
shall be and remain irrepealable until the Parity Bonds and the interest thereon shall be fully paid or
discharged or provision therefor shall have been made as provided herein. In the event of a default
in the payment of the principal of or interest on any of the Parity Bonds or a default in the
performance of any duty or covenant provided by law or in tkis Resolution, the Owner or Owners
of any of the Parity Bonds may pursue all legal remedies afforded by the Constitution and laws of the
State of Texas to compel the Corporation to remedy such default and to prevent further default or
defaults. Without in any way limiting the generality of the foregoing, it is expresslyprovided that any
Owner of any of the Parity Bonds may at law or m equity, by suit, action, mandamus, or other
proceedings, enforce and compel performance of all duties required to be performed by the
Corporation under this Resolution, the deposit of the Pledged Revenues into the special funds herein
provided, and the application of such Pledged Revenues in the manner required in this Resolution.
The foregoing notwahstanding, acceleration of the Parity Bonds is not an available remedy. The sole
source of the Corporation available for the payment of debt service on the Bonds is and shall be the
Pledged Revenues.
Section 6.6: Discharge by Deposit. The Corporation may discharge its obligation to the
Owners of any or all of the Parity Bonds to pay principal, interest and redemption premium (ff any)
thereon in any manner then permitted by law, including, but not lmmted to, by depositing with any
paying agent for such Parity Bonds either: (i) cash in an amount equal to the principal amount and
redemption premium, if any, of such Parity Bonds plus interest thereon to the date of maturity or
redemption, or (ii) pursuant to an escrow or trust agreement, cash and/or direct noncallable,
nonprepayable obligations of the Urfited States of America, in principal amounts and maturities and
bearing interest at rates sufficient to provide for the timely payment of the principal mount and
redemption premium, if any, of such Parity Bonds plus interest thereon to the date of maturity or
redemption; provided, however, that if any of such Parity Bonds are to be redeemed prior to their
respective dates of maturity, provision shall have been made for giving notice of redemption as
provided in the resolution authorizing such ParityBonds. Upon such deposit, such Parity Bonds shall
no longer be regarded to be Outstanding or unpaid.
Section 6.7: Registrar and Trustee May Own Parity Bonds. The Registrar and Trustee for
the Parity Bonds, in their individual or any other capacity, may become holders or pledges of the
Parity Bonds with the same rights they would have if they were not the Registrar or Trustee.
Section 6.8: No Recourse Against Corporation Officials. No recourse shall be had for the
payment of principal of or interest on any Parity Bonds or for any claim based thereon or on this
Resolution against any official of the Corporation or any person executing any Parity Bonds. No
member of the Board of Directors of the Corporation or any officer, agent, employee or
representative of the Corporation in kis individual capacity, nor the officers, agents, employees or
representatives of the Corporation nor any person executing the Series 2004 Bonds shall be
personally liable thereon or be subject to any personal liability or accountability by reason of the
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issuance thereol~ whether by vtrtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty, or otherwise, all such liability being expressly released and waived as
a condition of and m consideration for the adoption of this Resolution and the issuance of the Series
2004 Bonds.
Section 6.9: Punctual Payment of Contractual Obh~ations. The Corporation will punctually
pay or cause to be paid any payment obhgations made by the Corporation under the terms of a
contract hereafter executed and delivered by the Corporation of thc nature described in Section 5.2.
ARTICLE VII
PROVISIONS CONCERNING SALE AND
APPLICATION OF PROCEEDS OF SERIES 2004 BONDS
Section 7.1: Execution of Documents to Effect Sale of Series 2004 Bonds. Each Authorized
Representative and other appropriate officers, agents and representatives of the Corporation are
hereby authorized to do any and all things necessary or desirable to provide for the issuance and
delivery of the Series 2004 Bonds.
Section 7.2: Application of Proceeds. Proceeds fi-om the sale o£the Series 2004 Bonds shall,
promptly upon receipt by the Trustee, be applied in the manner provided for in a certificate executed
by an Authorized Representative.
ARTICLE VIII
TAX EXEMPTION
Section 8.1: General Tax Covenants. The Corporation covenants to refrain fi-om any action
which would adversely affect, or to take any action to assure, the treatment of the Series 2004 Bonds
as obligations descn3oed in section 103 of the Code, the interest on wlfich is not includable in the
"gross income" of the holder for purposes of federal income taxation. In furtherance thereof, the
Corporation covenants as follows:
(a) to take any action to assure that no more than 10 percent of the proceeds of
the Series 2004 Bonds or the projects financed therewith (less amounts deposited to a reserve
fund, if any) are used for any "private business use", as defined in section 141(b)(6) of the
Code or, if mere than 10 percent of the proceeds are so used, that amounts, whether or not
received by the Corporation, with respect to such private business use, do not, under the
terms of this Ordinance or any underlying arrangement, directly or indirectly, secure or
provide for the payment of more than 10 percent of the debt service on the Series 2004
Bonds, in contravention of section 141(b)(2) of the Code;
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(b) to take any action to assure that in the event that the "private business use"
described in subsection (a) hereof exceeds 5 percent of the proceeds of the Series 2004 Bonds
or the projects financed therewith (less amounts deposited into a reserve fund, if any) then the
amount in excess of 5 percent is used for a "private business use" which ~s "related" and not
"disproportionate", within the meaning of section 141 (b)(3) of the Code, to the governmental
use;
(c) to take any action to assure that no amount which is greater than the lesser of
$5,000,000, or 5 percent of the proceeds of the Series 2004 Bonds (less amounts deposited
into a reserve fund, if any), is directly or indkectly used to finance Bans to persons, other than
state or local governmental umts, in contravention of section 141 (c) of the Code;
(d) to reft-am fi-om taking any action which would otherwise result in the Series
2004 Bonds being treated as "private activity bonds" within the meaning of section 141(a) of
the Code;
(e) to refi'ain fi-om taking any action that would result in the Series 2004 Bonds
being "federally guaranteed" within the meaning of section 149(b) of the Code;
(f) to refrain fi-om using any portion of the proceeds of the Series 2004 Bonds,
directly or indirectly, to acquire or to replace funds which were used, directly or indirectly,
to acquire investment property (as defined in section 148(b)(2) of the Code) which produces
a materially higher yield over the term of the Series 2004 Bonds, other than investment
property acquired with --
(1) proceeds of the Series 2004 Bonds invested for a reasonable temporary
period of three years or less until such proceeds are needed for the purpose for which
the Series 2004 Bonds are issued,
(2) amounts invested in a bona fide debt service fund, within the meaning
ofsectmn 1.148-1(b) of the Regulations, and
(3) amounts deposited tn any reasonably required reserve or replacement
fund to the extent such amounts do not exceed 10 percent of the proceeds of the
Series 2004 Bonds;
(g) to otherwise restrict the use of the proceeds of the Series 2004 Bonds or
amounts treated as proceeds of the Series 2004 Bonds, as may be necessary, so that the Series
2004 Bonds do not otherwise contravene the requirements of section 148 of the Code
(relating to arbitrage) and, to the extent applicable, section 149(d) of the Code (relating to
advance refundings); and
(h) to pay to the United States of America at least once during each five-year
period (begmmng on the date of delivery of the Series 2004 Bonds) an amount that ts at least
equal to 90 percent of the "Excess Earnings", witkin the meaning of section 148(f) of the
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Code and to pay to the United States of America, not later than 60 days after the Series 2004
Bonds have been paid in full, 100 percent of the amount then required to be paid as a result
of Excess Earnings under section 148(0 of the Code.
The Corporation understands that the term "proceeds" includes "disposition proceeds" as defined in
the Treasury Regulations and, in thc case of a refunding bond, transferred proceeds (if any) and
proceeds of the refunded bonds expended prior to the date oftbe issuance of the Series 2004 Bonds.
It is the understanding of the Corporation that the covenants contained herein are intended to assure
compliance with the Code and any regulations or rulings promulgated by the U.S. Department of the
Treasury pursuant thereto. In the event that regulations or rulings are hereafter promulgated which
n~dify or expand provisions of the Code, as applicable to the Seres 2004 Bonds, the Corporation
will not be required to comply with any covenant contained herein to the extent that such failure to
comply, in the opinion ofnationally-recogmZed bond counsel, will not adversely affect the exemption
fi.om federal inconm taxation of interest on the Series 2004 Bonds under section 103 of the Code.
In the event that regulations or rulings are hereaRer promulgated winch trnpOse additional
requirements which are applicable to the Series 2004 Bonds, the Corporation agrees to comply with
the additional requirements to the extent necessary, in the opinion ofnationally-recogmZed bond
counsel, to preserve the exemption fi.om federalincome taxation of interest on the Series 2004 Bonds
under section 103 of the Code. In furtherance of the foregoing, any Authorized Representative may
execute any certificates or other reports required by the Code and to make such elections, on behalf
oftbe Corporation, which may be pemutted by the Code as are consistent with the purpose for the
issuance of the Series 2004 Bonds. In order to facilitate compliance with the above clause (h), there
has been established in the Indenture a "Rebate Fund" for the sole benefit of the United States of
America, and such Rebate Fund shall not be subject to the claim of any other person, including
without limitation the Registered Owners of the Series 2004 Bonds. The Rebate Fund ts estabhshed
for the additional purpose ofcomphance with section 148 of the Code
Section 8.2: Allocation of, and Linfitation on, Expenditures for the Project. The Corporation
covenants to account for on its books and records the expenditure of proceeds fi-om the sale of the
Series 2004 Bonds and any investment earnings thereon to be used for the payment of Project Costs
by allocating proceeds to expenditures within 18 months of the later of the date that (a) the
expenditure on a Project is made or (b) each such Project is completed. The foregoing
notwithstanding, the Corporation shall not expend such proceeds or investment earnings more than
60 days after the later of(a) the fifth anniversary of the date of delivery of the Series 2004 Bonds or
(b) the date the Series 2004 Bonds are retu'ed, unless the Corporation obtains an opinion of
nationally-reco gntzed bond counsel substantially to the e ft~ct that such expenditure will not adversely
affect the tax-exempt status of the Series 2004 Bonds. For purposes of this Section, the Corporation
shall not be obligated to comply with this covenant if it obtams an opinion of nationally-recognized
bond counsel to the effect that such failure to comply will not adversely affect the excludability for
federal income tax purposes fi-om gross tncorne of the interest.
Section 8.3: Disposition of Proiect. The Corporation covenants that the property constituting
a ProJect will not be sold or otherwise dtsposed in a transaction resulting in the receipt by the
Corporation of cash or other compensation, unless the Corporation obtains an opinion o fnationally-
recognized bond counsel substantially to the effect that such sale or other disposition will not
adversely affect thc tax-exempt status of the Series 2004 Bonds. For purposes of this Section, the
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portion of the property comprising personal property and disposed of m the ordinary course of
business shall not be treated as a transaction resulting in the receipt of cash or other compensation
For purposes of this Section. the Corporation shall not be obligated to comply with this covenant if
it obtains an opinion of nationally-recognized bond counsel to the effect that such failure to comply
will not adversely affect the excludability for federal income tax purposes from gross income of the
interest on the Series 2004 Bonds.
ARTICLE IX
CONTINUING DISCLOSURE UNDERTAKING
Section 9.1: Annual Reports. (a) That the Corporation shall provide annually, within six
months al?ret the end of each Fiscal Year ending in or al]er 2004, financial information and operating
data with respect to the Corporation of the general type described in Exhibit B hereto provided that
such information and data is customarily prepared by the Corporation. Such information shall be
provided to any person upon request made to the Corporation provided that the Corporation reserves
the right at any time to commence making such annual filings with the SID (if any, and if none, to
each NRMSIR) in heu of providing such reformation upon request. Any financial statements so to
be provided shall be (1) prepared in acco rdance with the accounting principles described in Exhibit B
hereto, or such other accounting principles as the Corporation may be required to employ fi.om time
to time pursuant to state law or regulation, and (2) audited, if the Corporation commissions an audit
of such statements and the audit is completed within the period during which they must be provided.
If the audit of such financial statements is not complete within such period, then the Corporation shall
provide unaudited financial statements by the required time and shall provide audited financial
statements for the applicable Fiscal Year to each NRMSIR and any SID, when and if the audit report
on such statements become available.
(b) If the Corporation changes its Fiscal Year, it will notify the SID of the change (and of the
date of the new Fiscal Year end) prior to the next date by which the Corporation otherwise would
be reqmred to provide financial information and operating data pursuant to this Section. The financial
information and operating data to be provided pursuant to this Section may be set forth in full in one
or more documents or may be included by specific reference to any document (including an official
statement or other offering document, if it ts available fi.om the MSRB) that theretofore has been
provided to the SID or filed with the SEC.
Section 9.2: Material Event Notices. The Corporation shall notify any SID and the MSRB,
in a timely manner, of any of the following events with respect to the Series 2004 Bonds, if such event
is lnaterial within the meaning o f the federal securities laws:
2.
3.
4.
5.
Prtncipal and interest payment delinquencies;
Non-payment related defaults;
Unscheduled draws on debt service reserves reflecting financial difficulties;
Unscheduled draws on credit enhancements reflecting ffmancial difficulties;
Substitution of credit or liquidity providers, or their failure to perform;
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8.
9.
10.
11.
Adverse tax opinions or events affecting thc tax-exempt status of the Series
2004 Bonds;
Modifications to rights of holders of the Series 2004 Bonds;
Series 2004 Bond calls;
Defeasances;
Release, substitution, or sale of property securing repayment of the Series
2004 Bonds; and
Rating changes.
The Corporation shall notify any SID and the MSRB, in a timely manner, of any failure by the
Corporation to provide financial information or operating data m accordance with Section 9.1 by the
time required by such Section.
Section 9.3: Ltmitations, Disclaimers, and Amendments. (a) The Corporation shall be
obligated to observe and perform the covenants specified in this Article for so long as, but only for
so long as, the Corporation remains an "obligated person" with respect to the Series 2004 Bonds
within the meaning of the Rule, except that the Corporation in any event will give notice of any
deposit made in accordance with tkis Resolution or applicable law that causes Series 2004 Bonds no
longer to be Outstanding.
(b) The provisions of this Article are for the sole benefit of the holders and beneficial owners
of the Series 2004 Bonds, and nothing in this Article, express or implied, shall give any benefit or any
legalor equitable right, remedy, or claim hereunder to any other person. The Corporation undertakes
to provide only the financial infom~ation, operating data, financial statements, and notices which it
has expressly agreed to provide pursuant to this Article and does not hereby undertake to prowde any
other information that may be relevant or material to a complete presentation of the Corporation's
financial results, condition, or prospects or hereby undertake to update any information provided in
accordance with tfus Article or otherwise, except as expressly provided herein. The Corporation does
not make any representation or warranty concerning such information or its usefulness to a decision
to revest in or sell Series 2004 Bonds at any future date.
(c) UNDER NO CIRCUMSTANCES SHALL THE CORPORATION BE LIABLE TO
THE HOLDER OR BENEFICIAL OWNER OF ANY SERIES 2004 BOND OR ANY OTHER
PERSON, IN CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART
FROM ANY BREACH BY THE CORPORATION, WHETHER NEGLIGENT OR WITHOUT
FAULT ON ITS PART, OF ANY COVENANT SPECIFIED 1N THIS ARTICLE, BUT EVERY
RIGHT AND REMEDY OF ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON
ACCOUNT OF ANY SUCH BREACH SHALL BE LIMITED TO AN ACTION FOR
MANDAMUS OR SPECIFIC PERFORMANCE.
(d) No default by the Corporation in observing or performing its obligations under this Amcle
shall comprise a breach of or default under this Resolution for purposes of any other provision of this
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Resolution. Nothing in this Article is intended or shah act to disclaim, waive, or otherwise l/mit the
duties of the Corporation under federal and state securities laws.
(e) The provisions of this Article lrmy be ainended by the Corporation from time to time to
adapt to changed ctrcumstances that arise fi.om a change in legal requirements, a change in law, or
a change in the identity, nature, status, or type of operations of the Corporation, but only fi(l) the
provisions of this Article, as so amended, would have permitted an underwriter to purchase or sell
Series 2004 Bonds in the primary offering of the Series 2004 Bonds in compliance with the Rule,
taking into account any amendments or interpretations of the Rule since such offering as well as such
changed circumstances and (2) either (A) the holders of a majority m aggregate principal amount (or
any greater amount required by any other provision of th.is Resolution that authorizes such an
amendment) of the outstanding Series 2004 Bonds consent to such amendment or (B) a person that
is unaffiliated with the Corporation (such as nationallyrecognized bond counsel) determines that such
amendment will not materially unpair the interest of the holders and beneficial owners of the Series
2004 Bonds. If the Corporation so amends the provisions of this Article, it shall include with any
amended financial information or operating data next provided m accordance with Section 9.1 an
explanation, in narrative form, of the reason for the amendment and of the nmPact of any change in
the type o f financial inforrnation or operating data so provided. The Corporation may also amend or
repeal the provisions of this continuing disclosure agreement if the SEC amends or repeals the
applicable provision of the Rule or a court of final jurisdiction enters judgment that such promsions
of the Rule are tnvalid, but only if and to the extent that the provisions of this sentence would not
prevent an underwriter from lawfully purchasing or selling Series 2004 Bonds in the primary offering
of the Series 2004 Bonds.
ARTICLE X
APPROVAL AND AFFIRMATION OF AGREEMENTS
The Board hereby approves issuance of the Series 2004 Bonds. The Board heretofore has
approved the indenture of Trust by and between the Corporation and JPMorgan Chase Bank, as
Trustee, and the Tri-Party Agreement, and does agree that the Indenture and the Tri-Party Agreement
each apply to the Series 2004 Bonds. The Board hereby represents that no amendments or
supplements have been made to either the Indenture or the Th-Party Agreement since the date of
delivery of the Series 2003A Bonds. In connection with the issuance of the Seres 2004 Bonds, the
Board hereby approves the following: the Paying Agent Agreement by and between the Corporation
and JPMorgan Chase Bank, in substantially the form attached hereto as Exl'u'oit C; and the Purchase
Contract, m substantially the form attached hereto as Exhibit D; and any and all other documents and
agreements reasonable and necessary to issue the Bonds (collectively, the ~Agreements"). The
Board, by a majority vote of its members, at a meeting duly held for such purpose, hereby approves
the form, terms, and provisions of thc Agreements and authorizes the execution and delivery of the
Agreements.
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ARTICLE XI
MISCELLANEOUS
Section 11.1: Further Proceedings. Thc President, any Vice President, the Executive
Director, the Secretary, the Assistant Secretary and other appropriate officials oftbe Corporation are
hereby authorized and directed to do any and all things necessary and/or convenient to carry out the
intent, purposes and terms o fthis Resolution, including the execution and delivery of such certificates,
documents or papers necessary and adv/sable.
Section 11.2: Severabihty. If any Section, paragraph, clause or provision of this Resolution
shall for any reason be held to be invalid or unenforceable, the tnvalidJlty or unenforceability of such
Section, paragraph, clause or provision shall not affect any of the remaining provisions of this
Resolution.
Section 11.3: Open Meeting. It is hereby officially found and determined that the meeting
at which th~s Resolution was adopted was open to the public, and that public notice of the time, place
and purpose of said meeting was given, all as required by the Texas Open Meetings Act, Chapter 55 l,
Texas Government Code.
Section 11.4: Parties Interested. Nothing in this Resolution expressed or implied is intended
or shall be construed to confer upon, or to give to, any person or entity, other than the Corporation,
the Registrar, and the Owners of the Series 2004 Bonds, any right, remedy or claim under or by
reason of this Resolution or any covenant, condition or stipulation hereof; and all covenants,
stipulations, promises and agreements m tiffs Resolution shall be for the sole and exclusive benefit of
the Corporation, thc Registrar, and the Owners of the Series 2004 Bonds.
Section I 1.5: Repealer. All orders, resolutions and ordinances, or parts thereof~ inconsistent
herewith are hereby repealed to the extent of such inconsistency
Section l 1.6: Effective Date. This Resolution shall become effective mediately upon
passage by this Corporation and signature of the President of the Corporation.
PASSED AND APPROVED this 13th day of July, 2004.
By:
Name: Samuet L. Neal, Jr.
Title: President
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ATTEST:
By:
Name: Armando Chapa
Title: Secretary
(SEAL)
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LIST OF EXHIBITS
EXHIBIT A
EXHI~ITB
EXHIBIT C
EXHIBIT D
FORM OF BOND
CONTINUING DISCLOSURE INFORMATION
PAYING AGENT AGREEMENT
BOND PURCHASE AGREEMENT
EXHIBIT A:
FORM OF BOND
United States of America
State of Texas
Registered
Registered
NORTH PADRE ISLAND DEVELOPMENT CORPORATION
TAX INCREMENT CONTRACT REVENUE BOND
SERIES 2004
INTEREST RATE:
MATURITY DATE:
DATED DATE:
CUSP:
REGISTERED OWNER:
PRINCIPAL AMOUNT:
DOLLARS:
The NORTH PADRE ISLAND DEVELOPMENT CORPORATION (the "Issuer"), a not-
for-pro fit local government corporation created under authoriW o fChapter 431, Subchapter D, Texas
Transportation Code (the "Act") by the City o fCorpus Christi, Texas (the "City"), for value received,
promises to pay, but solely from certain Pledged Revenues as hereinafl, er provided, to the Registered
Owner identified above or registered assigns, on the Maturity Date specrlied above, upon presentation
and surrender of tkis Bond at the designated corporate trust office in Dallas, Texas (the "Designated
Trust Office") of JPMorgan Chase Bank, as registrar (the "Registrar"), the principal amount identified
above, in any coin or cttrrency of the United States o fAmerica which on the date of payment of such
principal is legal tender for the payment of debts due the United States o fAmerica, and to pay, solely
from such Pledged Revenues, interest thereon at the rate shown above, calculated on the basis ora
360-day year of twelve 30-day months, fi.om the later of the Dated Date of the Bonds specified
above, or the most recent interest payment date to which interest has been paid or duly provided for.
Interest on this Bond is payable by check on March 15 and September 15, beginning on March 15,
2005, mailed to the Registered Owner as shown on the books of registration kept by the Registrar
as of the last Business Day of the month next preceding each interest payment date (the "Record
Date"), or by such other method, acceptable to the Registrar, requested by and at the risk and
expense of the Registered Owner If interest on this Bond is not paid on any interest payment date
specified above, and continues unpaid for thirty (30) days thereafl:er, the Registrar shall establish a
new Record Date for the payment of such interest (a "Special Record Date"). Such Special Record
Date shall be established in accordance with the terms of the hereinafter defined Resolution.
THIS BOND IS ONE OF A DULY AUTHORIZED SERIES OF BONDS dated as of
,2004, aggregating $ , issued for the purpose of(l) paying Project
Costs and (2) paying Costs of Issuance, all under and pursuant to the authority of the Act and all
other applicable laws, and a resolution adopted by the Issuer on July 13, 2004 (the "Resolution").
None of the proceeds of the Bonds shall be used for the purpose of paying or otherwise providing
for educational facdities All defined terms not herein defined shall have the meaning attrt~outed
thereto in accordance with the terms of the Resolution or the Indenture of Trust dated as o fFebruary
1, 2003, between the Issuer and JPMorgan Chase Bank, as trustee (the "Indenture of Trust").
THIS BOND AND THE SERIES OF WltlCH IT IS A PART are limited obligations of the
Issuer that are payable fi.om, and are equally and ratably secured, together with the currently
outstanding "Parity Bonds", as defined in the Indenture of Trust, by a first lien on the "Pledged
Revenues", as defined and provided in the Indenture of Trust, which Pledged Revenues are required
to be set aside and pledged to the payment of the Bonds and all additional bonds and panty
contractual obligations issued or entered into on a parity therewith, in the Debt Service Fund and the
Reserve Fund maintained for the payment of all such Bonds, all as more fully described and provided
for in the Resolution. This Bond and the series of which it is a part, together with the interest
thereon, are payable solely fi.om such Pledged Revenues.
THE BONDS may be redeemed only in principal amounts of $100,000 or any integral
multiple of $5,000 in excess thereof, at the option of the Issuer,, on , __, or on any
date thereafter, at the redemption price indicated below (expressed as a percentage of par value) plus
accrued interest to the date fixed for redemption, to-wit:
Redemption Dates (dates inclusive)
Redemptton Price (%)
If less than all of the Bonds are to be redeemed by the Issuer, the Issuer shall determine the maturity
or maturities and the amounts therewith to be redeemed and shall direct the Registrar to call by lot
Bonds, or portions thereof; within such maturity or maturities and in such principal amounts, for
redemption;provided, that during any period in which ownership of the Bonds is deterrmned only by
a book entry at a securities depository for the Bonds, if fewer than all of the Bonds of the same
maturity and beating the same interest rate are to be redeemed, the particular Bonds of such maturity
and bearing such interest rate shall be selected in accordance with the arrangements between thc
Issuer and the securities depository; and provided, further, that no Bonds shall be redeemed in a
manner where the Registered Owner thereof shall own Bonds in a denomination of less than
$100,000.
THE BONDS are also subject to mandatory redemption in part by lot on in the
following years and in the following amounts, at a price equal to the principal amount thereof and
accrued and unpaid interest to the date of redemption, without premium:
Year Principal Amount Year Principal Amount
$ $
* Final Maturity
THE BONDS to be redeemed in any year by mandatory sinking fund redemption shall be
selected by lot fi.om the Bonds then subject to redemption; prov/ded, that if any Bond is selected for
redemption in part it shall not be redeemed in an amount that would, upon exchange, result in a Bond
in a denomination less than $100,000.
THE PRINCIPAL AMOUNT OF BONDS required to be redeemed on each such redemption
date pursuant to the foregoing operation of the mandatory sinking fund redemption shall be reduced,
at the option of the Issuer, by the principal amount of the Bonds which, at least 45 days prior to the
mandatory sinking fund redemption date, (1) shall have been acquired by the Issuer and delivered to
the Registrar for cancellation or (2) shall have been acquired and canceled by the Registrar at the
direction of the Issuer, in either case of(l) and (2) at a price not exceeding the par or principal
amount of such Bonds, or (3) shall have been redeemed pursuant to the optional redemption
provisions descn'oed above and not thereto fore credited against a mandatory sinking fund redemption.
DUring any period in which ownership of the Bonds is determined by a book entry at a securities
depository for the Bonds, if fewer than all of the bonds of the same maturity and bearing the same
interest rate are to be redeemed, the particular Bonds of such maturity to be redeemed shall be
selected in accordance with the arrangements between thc Issuer and the securities depository;
provided, that if any Bond is selected for redemption in part it shall not be redeemed in an amount
that would result, upon exchange, in a Bond in a denomination less than $100,000.
UNLESS WAIVED BY THE OWNER, NOTICE OF ANY REDEMPTION shall be given
at least tkirty (30) days prior to the date fixed for redemption by first class mail, addressed to the
Registered Owners of each Bond to be redeemed in whole or in part at the address shown on the
books of registration kept by the Registrar. When Bonds or portions thereof have been called for
redempUon, and due provision has been made to redeem the same, the principal amounts so redeemed
shall be payable solely fi'om the fimds provided for redemption, and interest which would otherwise
accrue on the amounts called for redemption shall terminate on the date fLxed for redemption.
THIS BOND IS TRANSFERABLE only upon presentation and surrender at the Designated
Trust Office of the Registrar, duly endorsed for transfer or accompanied by an assignment duly
executed by the Registered Owner or his authorized representative, subject to the terms and
conditions of the Resolution.
THIS BOND IS EXCHANGEABLE at the Designated Trust Office of the Registrar for
Bonds in principal amounts only in Authorized Denonfinations, subject to the terms and conditions
of the Resolution
NEITHER THE ISSUER NOR THE REGISTRAR shall be required to transfer or exchange
any Bond during the period beginning on the fifteenth calendar day of the month next preceding any
interest payment date and ending on the next succeeding interest payment date or to transfer any
Bond called for redemption during the 30 day period prior to the redemption date.
DURING ANY PERIOD in which ownership o fthe Bonds is determined only by a book entry
at a securities depository for the Bonds, if fewer than all of the Bonds of the same maturity and
beating the same interest rate are to be redeemed, the particular Bonds of such maturity and bearing
such interest rate shall be selected tn accordance with the arrangements between the Issuer and the
securities depository; provided, however, that no Bonds shall be redeemed in a ma.nner where the
beneficial owner thereof shall own Bonds in any Authorized Denomination.
THIS BOND shall not be valid or obligatory for any purpose or be entitled to any benefit
under the Resolution unless this Bond is either (i) registered by the Comptroller of Public Accounts
of the State of Texas by registration certificate attached or affixed hereto or (ii) authenticated by the
Registrar by due execution of the authentication certificate endorsed hereon.
THE ISSUER HAS RESERVED THE RIGHT to issue additional parity Tax Increment
Contract Revenue Bonds, subject to the restrictions contained in the Resolution, which may be
equally and ratably payable fi.om, and secured by a first lien on and pledge of, the Pledged Revenues
in the same manner and to the same extent as this Bond and the series of which it is a part.
THE BONDS AND ANY OUTSTANDING TAX INCREMENT CONTRACT REVENUE
BONDS ARE A LIMITED OBLIGATION OF THE CORPORATION, PAYABLE, TOGETHER
WITH THE CURRENTLY OUTSTANDING PARITY BONDS, SOLELY OUT OF THE TRUST
ESTATE, WHICH IS THE SOLE ASSET OF THE CORPORATION PLEDGED THEREFOR.
THE BONDS AND ANY OUTSTANDING TAX INCREMENT CONTRACT REVENUE BONDS
ARE OBLIGATIONS SOLELY OF THE CORPORATION AND DO NOT CONSTITUTE,
WITHIN THE MEANING OF ANY STATUTORY OR CONSTITUTIONAL PROVISION, AN
INDEBTEDNESS, AN OBLIGATION OR A LOAN OF CREDIT OF THE CITY, THE STATE
OF TEXAS, NUECES COUNTY, TEXAS, DEL MAR COLLEGE, NUECES COUNTY
HOSPITAL DISTRICT, REINVESTMENT ZONE NUMBER TWO, CITY OF CORPUS
CHRISTI, TEXAS, OR ANY OTHER MUNICIPALITY, COUNTY, OR OTHER MUNICIPAL
OR POLITICAL CORPORATION OR SUBDIVISION OF THE STATE OF TEXAS. NEITHER
THE CITY, NUECES COUNTY, TEXAS, DEL MAR COLLEGE, NUECES COUNTY
HOSPITAL DISTRICT NOR REINVESTMENT ZONE NUMBER T~VO, CITY OF CORPUS
CHRISTI, TEXAS ARE OBLIGATED TO MAKE PAYMENTS ON THE BONDS AND ANY
OUTSTANDING TAX INCREMENT CONTRACT REVENUE BONDS.
SHOULD EACH PARTICIPANT TIMELY CONTRIBUTE ITS TAX INCREMENT TO
THE TAX INCREMENT FUND, AND THE CITY TRANSFERS ALL OF THE TAX
INCREMENTS FROM THE TAX INCREMENT FUND TO THE ISSUER IN ACCORDANCE
WITH THE TERMS OF THE TRI-PARTY AGREEMENT, AND SUCH TAX INCREMENTS TO
BE TRANSFERRED ARE NOT SUFFICIENT FOR THE PAYMENT OF THE PRINCIPAL OF
OR INTEREST ON THE BONDS ON THE DATE WHEN SUCH PRINCIPAL OR INTEREST
BECOMES DUE AND PAYABLE, AN EVENT OF DEFAULT SHALL NOT BE DEEMED TO
HAVE OCCURRED UNDER THE TERMS OF THE INDENTURE OF TRUST.
IT IS HEREBY DECLARED AND REPRESENTED that this Bond has been duly and
validly issued and delivered; that all acts, conditions, and things required or proper to be performed,
exist, and be done precedent to or in the issuance and delivery of this Bond have been performed,
existed, and been done in accordance with law; that the Bonds do not exceed any statutory limitation;
and that provision has been made for the payment of the princrpal of and interest on this Bond and
all oftbe Bonds by the creation of the aforesaid lien on and pledge of the Pledged Revenues.
IN WITNESS WHEREOF, the Issuer has caused this Bond to be executed by the manual or
facsimile signatures of the President and the Secretary.
NORTH PADRE ISLAND DEVELOPMENT CORPORATION
President, Board of Directors
Secretary, Board of Directors
(SEAL)
FORM OF REGISTRATION CERTIFICATE
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 o fTexas, 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
FORM OF REGISTRAR'S AUTHENTICATION CERTIFICATE
AUTHENTICATION CERTIFICATE
It is hereby certified that this Bond has been delivered pursuant to the Resolution described
in the text of this Bond; and that this Bond is one of a series of Bonds approved by the Attorney
Genera[ oftbe State o£Texas and registered by the Comptroller of Pubhc Accounts of the State of
Texas.
JPMORGAN CHASE BANK, as Regzstrar
By:
Authorized Signature
Date of Authentication:
FORM OF ASSIGNMENT
AS SIGNMENT
For value received, the undersigned hereby sells, assigns, and transfers unto
(Please print or type name, address, and ztp code of Transferee)
(Please insert Social Security or Taxpayer Identification Number of Transferee)
the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer said Bond on the books kept for registration thereof, with full power of
substitution in the premises.
DATED:
Signature Guaranteed:
NOTICE: Signature must be
guaranteed by an institution which
is a participant in the Securities
Transfer Agent Medalhon Program
("STAMP") or similar program.
Registered Owner
NOTICE: The signature above must correspond
to the namc of the Registered Owner as shown
on the face of tkis Bond in every particular,
without any akeration, enlargement or change
whatsoever.
Exhibit B
to
Resolution
DESCRIPTION OF A1NNUAL FINANCIAL INFORMATION
The following information is referred to in Section 9.1 ofth~s Resolution.
Annual Financial Statements and Operating Data
The financial infomaation and operating data with respect to the Corporation to be provided
annually in accordance with such Section are as specified (and included in the AppendLx or under the
headings of the Limited Offering Memorandum referred to) below:
1. The ufformation of the general type included m Tables 1 through 3 of the Limited Offering
Memorandum
2. "Financial Statements of the North Padre Island Development Corporation".
Accounting Principles
The accounting principles referred to m such Section are the accounting principles descn]:~.d
m the notes to the financial statements referred to in paragraph 2 above.
PAYING AGENT AGREEMENT
THIS PAYING AGENT AGREEMENT entered into as of September I, 2004 (this
"Agreement"), by and between the North Padre Island Development Corporation (the "Issuer"), and
JPMorgan Chase Bank, a state banking organization duly organized and existing under the laws of
the State of New York, and hamg a corporate trust office m Houston, Texas (the "Bank").
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the issuance o fits Tax Increment
Contract Revenue Bonds, Series 2004, m the aggregate principal amount of $ (the
"Securities"), such Securities to be issued m fully registered form only as to the payment of principal
and interest thereon; and
WHEREAS, the Issuer has selected the Bank to serve as Paying AgenffRegistrar in
connection with the payment of the principal of, premium, if any, and interest on said Securities and
with respect to the registration, transfer and exchange thereof by the registered owners thereof}, and
WHEREAS, the Bank has agreed to serve in such capacities for and on behalf of the Issuer
and has full power and authority to perform and serve as Paying Agent/Registrar for the Securities;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE ONE
APPOINTMENT OF BANK AS
PAYING AGENT AND REGISTRAR
Section 1.01. Appointment.
The Issuer hereby appoints the Bank to serve as Pay/ng Agent with respect to the Securities.
As Paying Agent for the Securities, the Bank shall be responsible for paying on behalf of the Issuer
the principal, premium (if any), and interest on the Securities as the same become due and payable
to the registered owners thereof, all m accordance with this Agreement and the "Resolution"
(hereinafter defined).
The Issuer hereby appoints the Bank as Registrar with respect to the Securities. As Regtstrar
for the Securities, the Bank shall keep and mamtain for and on behalf of the Issuer books and records
as to the ownership of said Securities and with respect to the transfer and exchange thereof as
provided herein and in the Resolution.
The Bank hereby accepts its appointment, and agrees to serve as the Paying Agent and
Registrar for the Securities.
Section 1.02. Compensation.
As compensation for the Bank's services as Paying Agent/Registrar, the Issuer hereby agrees
to pay the Bank the fees and amounts as may be agreed upon in writing. The initial fees and amounts
payable for the Bank's services as PaYing Agent/Registrar are as set forth in Exhibit A attached
hereto.
In addition, the Issuer agrees to reimburse the Bank upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Bank in accordance with any of the
provisions hereof(including the reasonable compensation and the expenses and disbursements o fits
agents and counsel).
ARTICLE TWO
DEFINITIONS
Section 2.01. Definitions.
For all purposes of this Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
"Acceleration Date" on any Security means the date on and after which the principal or any
or all installments of interest, or both, are duc and payable on any Security which has become
accelerated pursuant to the terms of thc Security.
"Bank Office" means the principal corporate trust office of the Bank as indicated on the
signature page hereof. The Bank will notify the Issuer in writing of any change in location of the
Bank Office.
"FiscalYear" tneans the twelve (12) month period commencing on August 1 of a calendar year
and ending July 3 1 oftbe next succeeding calendar year, or such other consecutive twelve (12) month
period as determined by the Issuer.
"Holder" and "Security Holder" each means the Person in whose name a Security is registered
in the Security Register.
"Issuer Request" and "Issuer Order" means a wr/tten request or order signed in the name of
the Issuer by the President or Vice President of the Issuer, any one or more of said officials, or any
other person designated by the Issuer, and delivered to the Bank.
"Legal Holiday" means a day on which the Bank is requtred or authorized to be closed.
"Person" means any individual, corporatton, partnership,joint venture, association, joint stock
company, trust, unincorporated organization or government or any agency or political subdivision
ora government.
-2-
"Predecessor Securities" of any particular Security means every previous Security evidencing
all or a portion of the same obligation as that evidenced by such particular Security (and, for the
purposes of this definition, any mutilated, lost, destroyed, or stolen Security for which a replacement
Security has been registered and dehvered in lieu thereof pursuant to Section 4 06 hereof and the
Resolution).
"Proceedings" means the Resolution and the Trust Indenture.
"Redemption Date" when used with respect to any Bond to be redeemed means the date fixed
for such redemption pursuant to the terms of the Resolution.
"Resolution" means the resolution, order, or ordinance of the governmg body of the Issuer
pursuant to which the Securities are issued, certified by the Secretary or any other officer of the
Issuer and delivered to the Bank.
"Responsible Officer" when used with respect to the Bank means the officer(s) in the
Institutional Trust Services department of the Bank having direct responsibility for administration of
the Securities.
"Security Register" means a register maintained by the Bank on behalfo fthe Issuer providing
for the registration and transfer of the Securities.
"Stated Maturity" means the date specified in the Resolution the principal of a Security is
scheduled to be due and payable.
"Trust Indenture" means the Indenture of Trust by and between the Issuer and the Bank, as
trustee, dated as of February 1, 2003.
Section 2.02. Other Defmitions.
The terms "Bank," Issuer," and "Securities (Security)" have the meanings assigned to them
in the recital paragraphs of this Agreement.
The term "Paying Agent/Registrar" refers to the Bank tn the performance of the duties and
functio ns o f this Agreement.
-3-
ARTICLE THREE
PAYING AGENT
Section 3.01. Duties of Payim, Agent
As Paying Agent, the Bank shall, prowded adequate collected funds have been provided to
it for such purpose by or on behalf of the Issuer, pay on behalf of the Issuer the principal of each
Security at its Stated Maturity, Redemption Date, or Acceleration Date, to the Holder upon surrender
oftbe Security to the Bank at the Bank Office.
As Paying Agent, the Bank shall, provided adequate collected funds have been prowded to
it for such purpose by or on behalf of the Issuer, pay on behalf of the Issuer the interest on each
Security when due, by computing the amount of interest to be paid each Holder and preparing and
sending checks by United States Mail, first class postage prepaid, on each payment date, to the
Holders of the Securities (or their Predecessor Securities) on the respective Record Date, to the
address appearing on the Security Register or by such other method, acceptable to the Bank,
requested in writing by the Holder at the Holder's risk and expense.
Section 3.02. Payment Dates.
The Issuer hereby instructs the Bank to pay the principal of and interest on the Securities on
the dates specified m the Resolution.
ARTICLE FOUR
REGISTRAR
Section 4.01. Security Register - Transfers and Exchanges.
The Bank agrees to keep and maintam for and on behalf of the Issuer at the Bank Office
books and records (herein sometimes referred to as the "Security Register") for recording the names
and addresses of the Holders of the Securities, the transfer, exchange and replacement of the
Securities and the payment of the principal of and interest on the Securities to the Holders and
containing such other information as may be reasonably required by the Issuer and subject to such
reasonable regulations as the Issuer and the Bank may prescribe. All transfers, exchanges and
replacement of Securities shall be noted in the Security Register.
Every Security surrendered for transfer or exchange shallbe duly endorsed or be accompanied
by a written instrument of transfer, the signature on which has been guaranteed by an officer of a
federal or state bank or a member of the National Association of Securities Dealers, in form
satisfactory to the Bank, duly executed by the Holder thereof or his agent duly authorized in writing.
The Bank may request any supporting documentation it feels necessary to effect a re-
registration, transfer or exchange of the Securities.
To the extent possible and under reasonable ctrcumstances, the Bank agrees that, in relation
to an exchange or transfer of Securities, the exchange or transfer by the Holders thereof will be
completed and new Securities delivered to the Holder or the assignee of the Holder in not more than
three (3) business days aRer the receipt of the Secunties to be cancelled in an exchange or transfer
and thc written instrument of transfer or request for exchange duly executed by the Holder, or his
duly authorized agent, m form and manner satisfactory to the Paying Agent/Registrar,
Thc Bank may utilize thc services of an agent, to act on behalf of the Bank, in the
performance of the services ofragistrar under the terms of this Agreement.
Section 4.02. Certificates.
The Issuer shall provide an adequate inventory of printed Securities to facilitate transfers or
exchanges thereof. The Bank covenants that the inventory of printed Securities will be kept in
safekeeping pending their use, and reasonable care will be exercised by the Bank in maintaining such
Securities in safekeeping, which shall be not less than the care maintained by the Bank for debt
securities of other political subdivisions or corporations for which it serves as registrar, or that is
maintained for its own securities.
Section 4.03. Fora of Security Register.
The Bank, as Registrar, will maintain the Security Register relating to the registration,
payment, transfer and exchange o fthe Securitms in accordance with the Bank's general practices and
procedures in effect fi.om time to time. The Bank shall not be obligated to maintain such Security
Register in any form other than those which the Bank has currently available and currently utilizes
at the time.
The Security Register may be maintamed in written form or in any other form capable o fbeing
convened into written form within a reasonable time.
Section 4.04. List of Security Holders.
The Bank will provide the Issuer at any time requested by the Issuer, upon payment of the
required fee, a copy of the information contained in the Security Register. The Issuer may also
inspect the information contained m the Security Register at any time the Bank is customarily open
for business, provided that reasonable time is allowed the Bank to provide an up-to-date listing or
to convert the irfformation into written fom~.
The Bank will not release or disclose the contents of the Security Register to any person other
than to, or at the written request of, an authorized officer or employee of the Issuer, except upon
receipt of a court order or as otherwise required by law. Upon receipt ora court order and prior to
the release or disclosure of the contents of the Security Register, the Bank will notify the Issuer so
that the Issuer nmy contest the court order or such release or disclosure of the contents of the
Security Register.
-5-
Section 4.05. Return of Cancelled Certificates.
With rcspect to all Securities paid or redeemed in accordance with the Resolution, and such
Securities shall be canceled and thereafter treated in accordance with the Bank's document retention
policies.
Section 4.06. Mutilated, Destroyed, Lost or Stolen Securities.
The Issuer hereby instructs thc Bank, subject to the applicable provisions of the Proceedings,
to deliver and issue Securities in exchange for or in lieu o fmutilated, destroyed, lost, or stolen Securi-
ties as long as the same does not result in an over-issuance_
In case any Security shall be mutilated, or destroyed, lost or stolen, the Bank, in its discretion,
may execute and deliver a replacement Security ofhke form and tenor, and in the same denomination
and bearing a number not conteinporaneously outstanding, m exchange and substitution for such
mutilated Security, or in lieu of and in substitution for such destroyed lost or stolen Security, only
after (i) the filing by the Holder thereof with the Bank of evidence satisfactory to the Bank of the
destruction, loss or theft of such Security, and of the authenticity of the ownership thereof and (ii)
the furnishing to the Bank of indemrfification in an amount satisfactory to save and hold the Issuer
and the Bank harmless. All expenses and charges associated with such indemnity and with the
preparation, execution and dehvery of a replacement Security shall be borne by the Holder of the
Security mutilated, or destroyed, lost or stolen.
Section 4.07. Transaction Information to Issuer.
The Bank will, within a reasonable time after recetpt of written request from the Issuer,
furnish the Issuer information as to the Securities it has paid pursuant to Section 3.01, Securities it
has delivered upon the transfer or exchange of any Securities pursuant to Section 4.01, and Securities
it has dehvered in exchange for or in lieu of mutilated, destroyed, lost, or stolen Securities pursuant
to Section 4.06.
ARTICLE FIVE
THE BANK
Section 5.01. Duties of Bank.
The Bank undertakes to perform the duties set forth herein and agrees to use reasonable care
in the performance thereo£
Section 5.02. Reliance on Documents, Etc.
(a) The Bank may conclusively rely, as to the truth of the statements and correctness of
the opinions expressed therein, on certificates or opinions furnished to thc Bank.
(b) The Bank shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Bank was neghgent in ascertaining the pertinent
facts.
-6-
(c) No provisions of this Agreement shall require the Bank to expend or risk its own funds
or otherwise incur any financial liability for performance of any of its duties hereunder, or in the
exercise of any o fits rights or powers, if it shall have reasonable grounds for behev/ng that repayment
of such funds or adequate indernnJty satisfactory to it against such risks or hability is not assured to
it.
(d) The Bank may rely and shall be protected tn acting or refraining fi.om acting upon any
resolution, certificate, statement, instrument, opimon, report, notice, request, direction, consent,
order, bond, note, security, or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties. Without limiting the generality of the foregoing
statement, the Bank need no t examine the ownership o fany Securities, but is pro tected in acting upon
receipt of Securities containing an endorsement or instruction of transfer or power of transfer which
appears on its face to be signed by the Holder or an agent of the Holder. The Bank shall not be
bound to make any investigation nato the facts or matters stated in a resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, note, security, or other
paper or document supphed by Issuer.
(e) The Bank may consuk with counsel, and the written advice of such counsel or any opimon
of counsel shall be full and complete authorization and protection with respect to any action taken,
suffered, or omitted by it hereunder in good faith and in reliance thereon.
(0 The Bank may exercise any of the powers hereunder and perform any duties hereunder
either directly or by or through agents or attorneys of the Bank.
Section 5.03. Recitals of Issuer.
The recitals contained herein with respect to the Issuer and in the Securities shall be taken as
the statements of the Issuer, and the Bank assumes no responsl'oility for their correctness.
The Bank shall in no event be liable to the Issuer, any Holder or Holders of any Security, or
any other Person for any amount due on any Security fi.om its own funds.
Section 5.04. May Hold Securities.
The Bank, in its commercial banking or any other capacity, may become the owner or pledgee
of Sectmties and may otherwise deal with the Issuer with the same hghts it would have if it were not
the Paying Agent/Registrar, or any other agent.
Section 5.05. Moneys Held by Bank.
Money held by the Bank hereunder need not be segregated fi.om any other funds provided
appropriate trust accounts are maintained in the name and for the benefit of the Issuer.
The Bank shall be under no hability for interest on any money received by it hereunder.
Subject to the Unclaimed Property Law of the State of Texas, any money deposited with the
Bank for the payment of the principal, premium (if any), or interest on Security and remaining
unclaimed for three years after thc final maturity of the Security has become due and payable will be
paid by the Bank to the Issuer if the Issuer so elects, and the Holder of such Security shall hereat~er
look only to the Issuer for payment thereof, and all hability of the Bank with respect to such moneys
shall thereupon cease. If the Issuer does not elect, the Bank is directed to report and dispose of the
funds in comphance with Title Six of the Texas Property Code, as amended.
Section 5.06. Indemnification.
To thc extent permitted by law, the Issuer agrees to indemnify the Bank for, and hold it
harmless against, any loss, habihty, or expense incurred without neghgence or bad faith on its part,
arising out of or in connection with its acceptance or admimstration of its duties hereunder, including
the cost and expense against any claim or liability in connection with the exercise or performance of
any of its powers or duties under this Agreement.
Section 5.07. Interpleader.
The Issuer and the Bank agree that the Bank may seek adjudication of any adverse claim,
demand, or controversy over its person as well as funds on deposit, in either a Federal or State
District Court located in the State of Texas, and agree that service of process by certified or regis-
tered mail, return receipt requested, to the address referred to in Section 6.03 of this Agreement shall
constitute adequate service. The Issuer and the Bank further agree that the Bank has the right to file
a Bill of Interpleader in any court of competent jurisdiction within the State of Texas to determine
the rights of any Person claiming any interest herein.
Section 5.08. Depository Trust Comoanv Services.
It is hereby represented and warranted that, m the event the Securities are otherwise qualified
and accepted for The Depository Trust Company ("DTC") services or equivalent depository trust
services by other orgamzations, the Bank has the capability and, to the extent within its control, will
comply with DTC's Operational Arrangements, which establish requkements for securities to be
eligible for such type depository trust services, including, but not hmited to, reqmrements for the
timeliness of payments and funds availabihty, transfer turnaround time, and notification of
redemptions and calls.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
Section 6.01. Amendment.
This Agreement may be amended only by an agreement in writing signed byboth of the parties
hereto
other.
Section 6.02. Assignment.
This Agreement may not be assigned by either party without the prior written consent of the
-8
Section 6.03. Notices.
Any request, demand, authorization, direction, notice, consent, waiver, or other document
provided or permitted hereby to be given or furnished to the Issuer or the Bank shall be mailed or
delivered to the Issuer or the Bank, respectively, at the addresses shown on the signature page of this
Agreement. All such notices shall be effective only upon receipt.
Section 6.04. Effect of Headin~,s.
The Article and Section headings herein are for convenience only and shall not affect the
construction hereof.
Section 6.05. Successors and Assigns.
All covenants and agreements herein by the Issuer shall bind its successors and assigns,
whether so expressed or not.
Section 6.06. Severabilitv.
In case any provision herein shall be invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 6.07. Benefits of Agreement.
Nothing hereto, express or tmplied, shall give to any Person, other than the parties hereto and
their successors hereunder, any benefit or any legal or equitable right, remedy, or claim hereunder.
Section 6.08. Entire A~,reement.
This Agreement and the Proceedings constitute the entire agreement between the parties
hereto relative to the Bank acting as Paying Agent/Registrar and ff any conflict extsts between his
Agreement and the Proceedings, the Proceedings shall govern.
Section 6.09. Counterl~arts.
Tkis Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and all of which shall constitute one and the same Agreement.
Section 6.10. Termination
Tkis Agreement will terminate (i) on the date of final payment of the principal of and interest
on the Securities to the Holders thereof or (ii) may be earlier tern'mUted by either party upon sixty
(60) days written notice; provided, however, an early termination of thks Agreement by either party
shall not be effective until (a) a successor Paying Agent/Registrar has been appointed by the Issuer
and such appointment accepted and (b) notice has been given to the Holders of the Securities of the
-9-
appointment of a successor Paying AgentiRegistrar. Furthermore, the Bank and Issuer mutually
agree that the effective date of an early termination of this Agreement shall not occur at any time
which would disrupt, delay or otherwise adversely affect the payment of the Securities.
Upon an early termination o ftkis Agreement, the Bank agrees to promptly transfer and deliver
the Security Register (or a copy thereof), together with other pertinent books and records relating
to the Securities, to the successor Paying Agent/Registrar designated and appointed by the Issuer.
The provisions o£Section 1.02 and Article Five of this Agreemem shall survive and remain
in full force and effect following the termination o1' thts Agreement.
Section 6.11. Governing Law.
This Agreement shall be construed in accordance with and governed by the laws of the State
of Texas.
[EXECUTION PAGE FOLLOWS]
-10-
iN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
year first above written.
JPMORGAN CHASE BANK
By
Title
Address:
600 Travis Street, Suite 1150
Houston, Texas 77002
Attention: Institutional Trust Services
[BANK SEAL]
NORTH PADRE ISLAND
CORPORATION
Corpus Christi, Texas
DEVELOPMENT
Attest:
By
Title:
Address:
President
1201 Leopard
Corpus Christi, Texas 78401
Secretary
[ISSUER SEAL]
-11-
SCHEDULE A
Paying Agent/Registrar Fee Schedule
PAYING AGENT/REGISTRAR SERVICES
Fees for paying agent services are incorporated as part o f the fees charged for trustee services.
I}RAFI'
NORTH PADRE ISLAND DEVELOPMENT CORPORATION
(A not-for-profit local government corporation
acting on behalf of the City of Corpus Christi, Texas)
TAX INCREMENT CONTRACT REVENUE BONDS
SERIES 2004
BOND PURCHASE AGREEMENT
[Date]
Board of Directors
North Padre Island Development Corporation
1201 Leopard
Corpus Christi, Texas 78401
Ladies and Gentlemen:
The undersigned, M. E. Allison & Co., Inc. (the "Underwriter"), offers to enter into the
following agreement with North Padre Island Development Corporation (the "Issuer") which,
upon the Issuer's written acceptance of this offer, as evidenced by the execution of this Bond
Purchase Agreement by the Chair of the board of directors of the Issuer, as the duly authorized
agent of the Issuer (the "Issuer Representative"), will be binding upon the Issuer and upon the
Underwriter. Capitalized terms used heroin and not otherwise defined in this Bond Pumhase
Agreement shall have the respective meanings given to such terms in the Limited Offenng
Memorandum (as defined heroin).
1. Background and Purpose. The Issuer is issuing its Tax Increment Contract
Revenue Bonds, Series 2004 (the "Bonds"), pursuant to a resolution adopted July 13, 2004 (the
"Bond Resolution") of the board of directors (the "Governing Body") of the Issuer for the
purpose of providing funds to pay Project Costs. Bond proceeds will also be used to pay
issuance costs associated with the Bonds.
2. Purchase and Sale of the Bonds. Subject to the terms and conditions and in
reliance upon the representations, warranties and agreements set forth heroin, the Underwriter
agrees to purchase from the Issuer, and the Issuer agrees to sell and deliver to the Underwriter at
Closing (as hereinafter defined), all, but not less than all, of the Bonds. Inasmuch as this
purchase and sale represents a negotiated transaction, the Issuer understands, and hereby
confirms, that the Underwriter is not acting as a fiduciary of the Issuer, but rather is acting
solely in its individual capacity as an Underwriter for its own accounL
The purchase price for the Bonds shall be $ (representing the par amount of
the Bonds of $ , less an underwriting discount of $
454741~3 1
The Bonds shall be issued pursuant to and in accordance with the provisions of the Bond
Resolution and an Indenture of Trust, dated as of February 1, 2003 (the "Indenture"), by and
between the Issuer and JPMorgan Chase Bank as trustee (the "Trustee").
3. Limited Offering. The Underwriter agrees to make a limited offering of all of the
Bonds at prices not to exceed the offering price set forth on Exhibit A and may subsequently
change such offering prices (or yields) without any requirement of prior notice to the Issuer. The
Underwriter may offer and sell Bonds to certain dealers (including dealers depositing Bonds into
investment trusts) and others at prices lower than the offering price stated on Exhibit A (or at
yields higher than such initial public offering yields). The Preliminary Limited Offering
Memorandum describes vahous Risk Factors that exist in connection with the sale of the Bonds,
and consistent with its duties under federal securities law the Underwriter has taken those risk
factors into account in malong a limited offering of the Bonds.
4. Offering Documents.
(a) Preliimnar7 Limited Offering Memorandum. The Issuer previously has delivered
copies of the Preliminary Limited Offenng Memorandum to the Underwriter for its use in
determining interest in the Bonds. The Issuer ratifies and approves the Preliminary Limited
Offering Memorandum and its use by the Underwriter for that purpose before the Preliminary
Limited Offering Memorandum described below becomes available. The Issuer confirms that it
has not prepared any official statement for dissemination to potential customers prior to the
availability of such Preliminary Limited Offering Memorandum, except the Preliminary Limited
Offering Memorandum. The Preliminary Limited Offering Memorandum was deemed final by
the Issuer as of its date for purposes of Rule 15c2-12 of the United States Securities and
Exchange Commission (the "Rule"), except possibly for the omission of items specified by
paragraph (b)(l) of the Rule.
(b) Delivery of Preliminary Limited Offerin~ Memorandum. Not mom than seven
business days after the time the Issuer accepts this offer, the Issuer will deliver copies of a final
Preliminary Lirmted Offering Memorandum related to the Bonds, approved by the Governing
Body or one or more duly authorized officers thereof, to the Underwriter in sufficient number to
permit the Underwriter to comply with the requirements of the Rule. Such Preliminary Limited
Offering Memorandum will be dated the date of this Bond Purchase Agreement, when delivered
to the Underwriter will be complete within the meaning of the Rule, and will be substantially in
the form of the most recent markup of the Preliminary Limited Offering Memorandum provided
to the Underwriter before the execution hereof. Such Preliminary Limited Offering
Memorandum, including the cover page thereto, all exhibits, appendices, maps, charts, pictures,
diagrams, reports, and statements included or incorporated therein or attached thereto, and all
amendments and supplements thereto that may be authorized for use with respect to the Bonds, is
herein referred to as the "Prelitninary Limited Offering Memorandum".
(c) Amendments and Suvolements to Preliminary Limited Offering Memorandum.
From the date of this Bond Purchase Agreement to the 30th day (or such other day, not later than
the 90th day, that may be specified by the Underwriter at the Closing referred to herein)
following the date of such Closing, the Issuer will notify the Underwriter whenever, in the
judgment of the Issuer, the Preliminary Limited Offering Memorandum should be amended or
454744~3.1
2
supplemented in order for the Official Statement not to contain any untrue statement of a
material fact and not to omit to state any material fact necessary to make the statements in the
Preliminary Limited Offering Memorandum, in light of the circumstances in which they are
made, not misleading. The Issuer will amend or supplement the Preliminary Limited Offenng
Memorandum at the expense of the Issuer and in a manner satisfactory to the Underwriter, when
in the reasonable judgment of the Issuer or the Underwriter such amendment or supplementation
is required.
(d) Use of Preliminary Limited Offering Memorandum. The Underwriter, all
members of any selling group which may be formed in connection with the distribution of the
Bonds, and all dealers to whom any of the Bonds may be sold by the Underwriter or by members
of any selling group may use the Prehminary Limited Offering Memorandum and the
information contained therein, including any amendments or supplements thereto, in connection
with the offering and sale of the Bonds.
(e) Continuing Disclosure. The Issuer will agree in the Bond Resolution to provide
or cause to be provided certain periodic information and notices of material events ~n accordance
with the Rule, as described in the Preliminary Limited Offering Memorandum under
"CONTINUING DISCLOSURE OF INFORMATION." The Underwriter's obligation to accept
and pay for the Bonds is conditioned upon delivery to the Underwriter or its agent of a certified
copy of the Bond Resolution containing the provisions described under such heading.
(f) Substantive Requirements for Preliminary Limited Offerim,, Memorandum. To
the best knowledge and belief of the Issuer, the Preliminary Limited Offering Memorandum
contains information, including financial information or operating data, concerning every entity,
enterprise, fund, account, or person that is material to an evaluation of the offering of the Bonds.
The continuing disclosure agreement made by the Issuer described in the Limited Offering
Memorandum is the first such undertaking made by the Issuer.
5. Representations, Warranties, and Covenants of the Issuer. The Issuer hereby
represents and warrants to and covenants with the Underwriter that:
(a) Due Organization. The Issuer is a not-for-profit local government corporation
acting on behalf of the City of Corpus Christi, Texas (the "City"), duly created, organized, and
existing under the Constitution and laws of the State of Texas, and is authorized and empowered
by the provisions of the Texas Constitution, the laws of the State of Texas, and the ordinances of
the City to issue the Bonds for the purposes of providing funds for the purposes specified in
Section 1 hereof.
(b) Due Authorization. By all necessary official action of the Issuer prior to or
concurrently with the acceptance hereof, the Issuer has duly authorized all necessary actton to be
taken by it for (i) the adoption of the Bond Resolution, the Indenture and the issuance and sale of
the Bonds, (ii) the approval, execution and delivery of, and the performance by the Issuer of the
obligations on its part, contained in the Bonds, the Bond Resolution, the Indenture, this Bond
Purchase Agreement, and the Tri-Party Agreement, (iii) the consummation by it of all other
transactions contemplated by the Limited Offering Memorandum, the Bond Resolution, the
Indenture, this Bond Purchase Agreement, and the Tn-Party Agreement, and any and all such
45474063. I
3
other agreements and documents as may be required to be executed, delivered and/or received by
the Issuer in order to carry out, give effect to, and consummate the transactions contemplated
herein and in the Limited Offering Memorandum.
(c) Lel~al, Valid, and Bindin~ Obligations. The Bond Resolution has been duly
adopted by the Governing Body of the Issuer, and the Bonds, when issued, delivered and paid
for, in accordance with the Bond Resolution and this Bond Purchase Agreement, will constitute
legal, valid and binding limited obligation of the Issuer secured solely by a valid lien on the
Pledged Revenues and entitled to the benefits of the Bond Resolution; and when delivered to and
paid for by the Underwriter at the Closing the Bonds will have been duly approved by the
Attorney General of Texas, registered by the Comptroller of Public Accounts of the State of
Texas, and duly executed and delivered by the Issuer and will constitute legal, valid, and binding
limited obligations of the Issuer enforceable against the Issuer in accordance with their terms,
subject to bankruptcy laws and similar laws affecting the rights of creditors of political
subdivisions generally, and may be limited by general principles of equity which permit the
exercise of judicial discretion.
(d) Tri-Partv Agreement and Indenture. The Tri-Party Agreement and the Indenture
constitute the legal, valid, and binding obligations of the Issuer enforceable against the Issuer in
accordance with their respective terms, subject to bankruptcy laws and similar laws affecting the
rights of creditors of political subdivisions generally, and may be limited by general principles of
equity which permit the exercise of judicial discretion.
(e) Default. To the best knowledge of the Issuer, it is not in any material respect in
breach of or default under any applicable constitutional provision, law or administrative
regulation of the City, the State or the United States or any applicable judgment or decree or any
loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the
Issuer is a party or to which the Issuer is otherwise subject, and no event has occurred and is
continuing which constitutes or with the passage of time or the giving of notice, or both, would
constitute a default or event of default by the Issuer under any such instrument.
(f) Necessary Approvals. Except for approval of the Bonds by the Attorney General
of Texas and registration of the Bonds by the Comptroller of Public Accounts of the State of
Texas, all approvals, permits, consents, licenses and authorizations of, registrations or filings
with, and notices to any government authority which are required for the Issuers's due execution,
delivery, and performance of its obligations under the Bonds, the Bond Resolution, the
Indenture, and this Bond Purchase Agreement have been made or obtained.
(g) No Litigation. No action, suit, proceeding, inquiry, or investigation, at law or in
equity, before or by any court or public board of body in which the Issuer has been served or of
which it has otherwise received official notice is pending against or to the knowledge of the
Issuer, is threatened against the Issuer (nor to the knowledge of the Issuer is them any basis
therefor) wherein an unfavorable decision, mling, or finding would impose a material financial
liability on the Issuer or in any way adversely affect (i) the creation, organization, existence, or
material authority of the Issuer or the title of its officers to their respective offices, (ii) the
collection of Contract Tax Increments or other revenues of the Issuer to any material extent, (iii)
the transactions contemplated by this Bond Purchase Agreement or the Limited Offering
45474063 I
4
Memorandum, (iv) the validity or enforceability of the Bonds, the Bond Resolution, the
Indenture, this Bond Purchase Agreement or the Tri-Party Agreement, or (v) the excludability of
the interest on the Bonds from the gross income of the owners thereof.
(h) Accuracy of Official Statement. The Bonds, the Tn-Party Agreement and the
Indenture conform to the descriptions thereof contained in the Limited Offering Memorandum
and the proceeds of the sale of the Bonds will be applied generally as described in the Limited
Offering Memorandum under the caption "SOURCES AND USES OF BOND PROCEEDS."
The information contained in the Limited Offering Memorandum with respect to the Bonds, the
Issuer, the Zone, the Project, Development within the Zone, Land Use within the Zone, and the
Issuer's other affairs is true and correct in all material respects and, as of the date of the Limited
Offering Memorandum, the Limited Offering Memorandum, with respect to such information,
did not, and as of the date of the Closing will not, contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the statements
made therein with respect to the Bonds, the Issuer, the Zone, the Project, Development within the
Zone, Land Use within the Zone, and the Issuer's affairs, in the light of the circumstances under
which they were made, not misleading. With respect to information in the Limited Offering
Memorandum, other than the information relating to the Bonds, the Issuer and the Issuer's
affairs, the Issuer has no reason to believe that such information contains any untrue statement of
a material fact or omits to state a material fact required to be stated therein or necessary to make
the statements made therein, in light of the circumstances under which they were made, not
misleading.
(i) No Material Adverse Change. Prior to the Closing, there will be no adverse
change of a material nature in the financial position, results of operations or condition, financial
or otherwise, of the Issuer. The Issuer is not a party to any litigation or other proceeding pending
or, to its knowledge, threatened which, if decided adversely to the Issuer, would have a
materially adverse effect on the financial condition of the Issuer. Between the date of this Bond
Purchase Agreement and the Closing, the Issuer will not, without the prior written consent of the
Underwriter, issue any bond or note or incur any other obligation for borrowed money which is
or may be payable from, or does or may constitute a charge on, the Pledged Revenues, and from
the respective dates as of which information is given in the Limited Offering Memorandum to
the Closing the Issuer has not incurred and will not incur any material liabilities.
(j) Officers' Certificates. Any certificate signed by any official of the Issuer
authorized to do so in connection with the transactions contemplated by this Bond Purchase
Agreement shall be deemed a representation and warranty by the Issuer to the Underwriter as to
the statements made therein.
(k) Issuer Representative. The Issuer Representative is authorized to act on behalf of
the Issuer, for the purpose of selling the Bonds to the Underwriter, fixing the terms of the Bonds
as set forth in Exhibit A and taking the other actions provided for herein and in the Bond
Resolution, and such actions by the Issuer Representative shall be deemed to be actions by the
Issuer. The Chair and any Vice Chair of the Governing Body or the Executive Director of the
Issuer each has been duly authorized to act on behalf of the Issuer, as the Issuer Representative,
for the purpose of taking the actions provided for herein.
45474~63.1
5
By delivering an executed copy of the Limited Offering Memorandum to the
Underwriter, the Issuer shall be deemed to have reaffirmed, with respect to such Limited
Offering Memorandum, the representations, warranties and covenants set forth above. The
Issuer covenants that between the date hereof and the Closing, it will take no actions that will
cause the representations and warranties made in this Section to be untrue as of the Closing.
6. Closing.
(a) The Issuer will deliver the Bonds to the Underwriter, and the Underwriter will pay
for the Bonds, at 9:00 a.m., Texas time, on [ ] (the "Closing Date"), or at such
other time and date as shall have been mutually agreed upon by the Issuer and the Underwriter.
Such actions are herein referred to as the "Closing." The Closing will occur at the offices of
McCall, Parkhurst & Horton L.L.P., Dallas, Texas, or at such other location as may be agreed to
by both the Issuer and the Underwriter, and the Bonds will be delivered t~ough the Depository
Trust Company.
(b) At the Closing, the Issuer will, subject to the terms and conditions hereof, deliver
one duly executed initial Bond for each maturity of the Bonds (the "Initial Bonds") in either
typed or printed for, payable to Cede & Co., and beanng a registration certificate manually
signed by an authorized representative of the Comptroller of Public Accounts of the State of
Texas, together with the other documents hereinafter described. The Issuer will cause the Paying
Agent/Registrar to exchange the Initial Bonds at Closing for definitive Bonds, duly authenticated
by the Paying AgenffRegistrar and bearing CUSP numbers, immediately upon payment for and
surrender for exchange of such Initial Bonds by the Underwriter, through the book-entry only
system of the Depository Trust Company.
(c) The Underwriter will pay the purchase price for the Bonds by wire transfer of
immediately available funds to the Paying Agent/Registrar to the account of the Issuer.
(d) Time is of the essence in the performance of this Bond Purchase Agreement
Tender of the Initial Bonds and definitive Bonds at the time and place specified in this Bond
Purchase Agreement is a condition to the Underwriter's obligations hereunder. If the Issuer is
unable to perform its obligations hereunder at such time and place, the Underwriter may, at its
option, either extend the time or change the place of performance or terminate its obligations
hereunder.
7. Closing Conditions. The Underwriter has entered into this Bond Purchase
Agreement in reliance upon the representations, warranties and agreements of the Issuer
contained herein, and in reliance upon the representations, warranties and agreements to be
contained in the documents and instruments to be delivered at the Closing and upon the
performance by the Issuer of its obligations hereunder, both as of the date hereof and as of the
date of the Closing. Accordingly, the Underwriter's obligations under this Bond Purchase
Agreement to purchase, to accept delivery of and to pay for the Bonds shall be conditioned upon
the performance by the Issuer of its obligations to be performed hereunder and under such
documents and instruments at or prior to the Closing, and shall also be subject to the following
additional conditions including the delivery by the Issuer of such documents as are enumerated
45474063.1
6
herein, in form and substance reasonably satisfactory to the Underwriter and counsel to the
Underwriter:
(a) The representations and warranties of the Issuer contained herein shall be tree,
complete and correct in all material respects on the date hereof and on and as of the date of the
Closing, as if made on the date of the Closing.
(b) The Issuer shall have performed and complied with all agreements and conditions
required by this Bond Purchase Agreement to be performed or complied with by it prior to or at
the Closing.
(c) At the time of the Closing, 0) the Bond Resolution, the Indenture, the Bonds, the
Tn-Party Agreement and the Interlocal Agreements shall be in full force and effect and shall not
have been amended, modified or supplemented, and the Limited Offering Memorandum shall not
have been supplemented or amended, except in any such case as may have been agreed to by the
Underwriter, (ii) the net proceeds of the sale of the Bonds and any funds to be provided by the
Issuer shall be deposited and applied as described in the Limited Offering Memorandum and in
the Bond Resolution and (iii) all actions of the Issuer required to be taken by the Issuer shall be
performed in order for Bond Counsel to deliver its opinions referred to hereafter.
(d) At or prior to the Closing, the Bond Resolution and the Indenture shall have been
duly executed and dehvered by the Issuer and the Issuer shall have duly executed and delivered
and the Pay/ng Agent/Registrar shall have duly authenticated the definitive Bonds.
(e) At the time of the Closing, the Issuer shall deliver the Bonds to the Underwriter.
(f) At the time of the Closing, there shall not have occurred any change or any
development involving a prospective change in the condition, financial or otherwise, or in the
revenues or operations of the Issuer, from that set forth in the Lirmted Offering Memorandum
that in the reasonable judgment of the Underwriter, is material and adverse and that makes it, in
the judgment of the Underwriter, impracticable to market the Bonds on the terms and in the
manner contemplated in the Limited Offering Memorandum.
(g) All steps to be taken and all instruments and other documents to be executed, and
all other legal matters in connection with the transactions contemplated by this Bond Purchase
Agreement shall be reasonably satisfactory in legal form and effect to the Underwriter and to
counsel for the Underwriter.
(h) At or prior to the Closing, the Underwriter shall have received copies of each of
the following documents:
(l) The Limited Offering Memorandum, and each supplement or amendment
thereto as may have been agreed to by the Underwriter, if any, executed on behalf of the Issuer
by the manual or facsimile signature of the Chair of its Governing Body;
(2) The Bond Resolution, having been duly adopted by the Issuer and being in
full force and effect, with such supplements or amendments as may have been agreed to by the
Underwriter;
45474063 I
7
(3) Copies of the Indenture certified to be in full force and effect;
(4) Copies of the ordinances creating and setting the current boundaries of
Reinvestment Zone Number Two, City of Corpus Christi, Texas ("Reinvestment Zone Two"),
and a copy of the resolution creating the Issuer and approving its articles of incorporation and
by-laws, all certified to be in full force and effect;
(5) A certificate of continued existence with respect to the Issuer from the
Texas Secretary of State, a copy of the Issuer's Articles of Incorporation certified by the Texas
Secretary of State and a certificate of good standing with respect to the Issuer from the Texas
Comptroller of Public Accounts, all dated within three days of the Closing Date;
(6) A copy of the Tn-Party Agreement and the Interlocal Agreements, with all
supplements or amendments enacted through the Closing Date, certified to be in full force and
effect, and a copy of the Project Cooperation Agreement between the Department of the Army
and the City of Corpus Christi, Texas, for Construction of the North Padre Island Storm Damage
Reduction and Environmental Restoration Project, as finally executed by both parties and in full
force and effect;
(7) A certificate, dated as of the Closing and signed by an Issuer
Representative, solely in his official capacity, to the effect that, (i) the representations,
warranties, and covenants of the Issuer contained herein are true and correct in ali material
respects as of the Closing, with the same effect as if made at the Closing; (ii) the Issuer has
performed all of its obligations hereunder to be performed at or before the Closing and has
satisfied all material conditions on its part to be satisfied hereunder at or before the Closing; (iii)
none of the Bond Resolution, the Indenture or the Th-Party Agreement have been amended,
modified, supplemented, or repealed since the date of this Bond Purchase Agreement, except as
agreed to by the Underwriter, and each is in full force and effect; (iv) no litigation or proceeding
against the Issuer is pending or, to the best of her knowledge, threatened in any court or
administrative body nor, to the best of knowledge, is there a basis for litigation which would (a)
contest the right of the directors or officials of the Issuer to hold and exercise their respective
positions, (b) contest the due organization and valid existence of the Issuer, (c) contest the
validity, due authorization and execution of the Bonds, the Bond Resolution, the Indenture, this
Bond Purchase Agreement or the Tri-Party Agreement, or (d) attempt to limit, enjoin or
otherwise restrict or prevent the Issuer from collecting Contract Tax Increments, (v) no event
affecting the Issuer has occurred since the date of the Limited Offering Memorandum which
should be disclosed in the Limited Offering Memorandum for the purpose for which it is to be
used or which it is necessary to disclose therein in order to make the statements and information
therein, in light of the circumstances under which made, not misleading in any respect as of the
time of Closing, (vi) the information contained in the Limited Offering Memorandum with
respect to the Bonds, the Issuer and the Issuer's affairs is true and correct in all material respects
and, as of the date of the Limited Offering Memorandum, the Limited Offering Memorandum,
with respect to such information, did not, and as of the date of the Closing does not, contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements with respect to the Issuer and the Bonds made therein, in the
light of the circumstances under which they were made, not misleading and (vii) with respect to
information in the Limited Offering Memorandum other than the information relating to the
45474063.1
8
Bonds, the Issuer and the Issuer's affairs, she has no reason to believe that such information
contains any untrue statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements made therein, in light of the circumstances
under which they were made, not misleading;
(8) A certificate of the Issuer signed by an appropriate official of the Issuer (a)
setting forth the facts, estimates and circumstances in existence on the date of the Closing, which
establish that it is not expected that the proceeds of the Bonds will be used ~n a manner that
would cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Internal
Revenue Code of 1986, as amended (the "Code"), and any applicable regulations (whether final,
temporary or proposed), issued pursuant to the Code, and (b) certifying that to the best of the
knowledge and belief of the Issuer there are no other facts, estimates or circumstances that would
materially change the conclusions, representations and expectations contained in such certificate;
(9) The approving opinion of McCall, Parkhurst & Horton, L.L.P., as bond
counsel, in substantially the form set forth in the Limited Offering Memorandum;
(10) A supplemental opinion of bond counsel addressed to the Issuer and the
Underwriter, substantially to the effect that;
(i) the Issuer has duly approved and authorized the distribution of the
Limited Offering Memorandum;
(ii) the Bonds are exempted securities under the Securities Act of
1933, as amended (the "1933 Act"), and it is not necessary, in connection with the offering and
sale of the Bonds, to register any securities under the 1933 Act and neither the Bond Resolution
nor the Indenture need be qualified under the Trust Indenture Act of 1939 (the "Trust Indenture
Act");
(iii) the information contained in the Limited Offering Memorandum
under the headings "THE SERIES 2004 BONDS," PLANS OF FINANCING," "SECURITY
AND SOURCE OF PAYMENT," "THE ISSUER," "THE ZONE," "LEGAL MATI'ERS,"
"TAX MATrERS," and "LEGAL INVESTMENT AND ELIGIBILITY TO SECURE PUBLIC
FUNDS IN TEXAS" fairly summarizes the matters of law and the information purported to be
shown therein and the documents included in Appendices A, B and D conform to the respective
documents delivered at Closing; and
(iv) stating that the Underwriter may rely on the approving Opinion of
Bond Counsel described as if it were addressed to it;
(11) An opinion of the City Attorney of the City, as general counsel to the
Issuer, substantially to the effect set forth in Exhibit B hereto;
(12) An opinion of the City Attorney of the City as general counsel to
Reinvestment Zone Two, or a certificate from the City, to the effect that Reinvestment Zone Two
is validly created and in full force and effect and the Tri-Party Agreement was duly authorized
executed and delivered and is a valid and binding obligation of Reinvestment Zone Two,
enforceable in accordance with its terms, except to the extent that its enforceability may be
45474063.1
9
limited by applicable provisions of the federal bankruptcy laws and any other similar laws
affecting the rights of creditors of political subdivisions generally, and except that such
enforceability is subject to general principles of equity and the exercise of judicial discretion
(regardless of whether such enforceability is considered in a proceeding in law or at equity);
(13) Evidence satisfactory to the Underwriter, which may take the form of a
legal opinion of counsel to the City, or a certificate from the City, to the effect that the Tri-Party
Agreement, and the City Interlocal Agreement was duly authorized, executed and delivered are
valid and binding obligations of the City enforceable in accordance with their respective terms;
(14) Evidence satisfactory to the Underwriter, which may take the form of a
legal opinion of counsel to the County, or a certificate from the City, to the effect that the County
Interlocal Agreement was duly authorized, executed and delivered and is a valid and binding
obligation of the County enforceable in accordance with its terms;
(15) Evidence satisfactory to the Underwriter, which may take the form of a
legal opinion of counsel to the College, or a certificate from the City, to the effect that the
College Interlocal Agreement was duly authorized, executed and delivered and is a valid and
binding obligation of the College, enforceable in accordance with its terms;
(16) Evidence satisfactory to the Underwriter, which may take the form of a
legal opinion of counsel to the Hospital District, or a certificate from the City, to the effect that
the Hospital District Interlocal Agreement was duly authorized, executed and delivered and is a
valid and binding obligation of the Hospital District enforceable in accordance with its terms;
(17) An opinion, dated the date of the Closing and addressed to the
Underwriter, of Fulbright & Jaworski L.L.P., Underwriter's counsel, to the effect that:
(i) the Bonds are exempted securities under the 1933 Act and it ~s not
necessary, in connection with the offering and sale of the Bonds, to register any securities under
the 1933 Act and neither the Bond Resolution nor the Indenture need be qualified under the Trust
Indenture Act; and
(ii) based upon their participation in conferences at which the Limited
Offering Memorandum was discussed, but without having undertaken to determine
independently the accuracy, completeness or fairness of the statements contained in the Limited
Offering Memorandum, such counsel has no reason to believe that the Limited Offering
Memorandum contains any untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the circumstances under which they were
made, not misleading (except for any financial, forecast, technical and statistical statements and
data included in the Limited Offering Memorandum, in each case as to which no view need be
expressed);
(18) The approving opinion of the Attomey General of the State of Texas in
respect of the Bonds;
(19) The registration certificate of the Comptroller of Public Accounts of the
State of Texas in respect of the Bonds; and
45474063.1
l0
(20) Such additional legal opinions, certificates, instruments and other
documents as the Underwriter or counsel to the underwriter may reasonably request to evidence
the truth and accuracy, as of the date hereof and as of the date of the Closing, of the Issuer's
representations and warranties contained herein and of the statements and the due performance
or satisfaction by the Issuer on or prior to the date of the Closing of all the respective agreements
then to be performed and conditions then to be satisfied by the Issuer.
All of the opinions, letters, certificates, instruments and other documents
mentioned above or elsewhere in this Bond Purchase Agreement shall be deemed to be in
compliance with the provisions hereof if, but only if, they are in form and substance satisfactory
to the Underwriter.
If the Issuer shall be unable to satisfy the conditions to the obligations of the
Underwriter to purchase, to accept delivery of and to pay for the Bonds contained in this Bond
Purchase Agreement, or if the obligations of the Underwriter to purchase, to accept delivery of
and to pay for the Bonds shall be terminated for any reason permitted by this Bond Purchase
Agreement. this Bond Purchase Agreement shall terminate and neither the Underwriter nor the
Issuer shall be under any further obligation hereunder, except that the check referred to in
Paragraph 1 shall be immediately returned to the Underwriter by the Issuer.
8. Termination. The Underwriter shall have the right to cancel its obligation to
purchase the Bonds if, between the date of this Bond Purchase Agreement and the Closing, the
market price or marketability of the Bonds shall be materially adversely affected in the sole
judgment of the Underwriter (as evidenced by a written notice to the Issuer terminating the
obligation of the Underwriter to accept delivery of and pay for the Bonds), by the occurrence of
any of the following:
(a) Adverse Affect on Income Tax Status. Legislation shall be enacted by or
introduced in the Congress or recommended to the Congress for passage by the President of the
United States, or the Treasury Department of the United States or the Internal Revenue Service
or favorably reported for passage to either House of the Congress by any comrmttee of such
House to which such legislation has been referred for consideration, a decision by a court of the
United States or of the State or the United States Tax Court shall be rendered, or an order, ruling,
regulation (final, temporary or proposed), press release, statement or other form of nottce by or
on behalf of the Treasury Department of the United States, the Internal Revenue Service or other
governmental agency shall be made or proposed, the effect of any or all of which would be to
impose, directly or indirectly, federal income taxation upon interest received on obligations of
the general character of the Bonds, of the interest on the Bond as described in the Limited
Offenng Memorandum, or other action or events shall have transpired which may have the
purpose or effect, directly or indirectly, of changing the federal income tax consequences of any
of the transactions contemplated herein, or any other action or events shall have occurred which,
in the reasonable judgment of the Underwriter, materially adversely affect the market for the
Bonds or the market price generally of obligations of the general character of the Bonds;
Co) Adverse Affect on Securities Law Exemvtions. Legislation introduced in or
enacted (or resolution passed) by the Congress or an order, decree, or injunction issued by any
court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed),
45474(163 1
11
press release or other form of notice issued or made by or on behalf of the Securities and
Exchange Commission, or any other governmental agency having jurisdiction of the subject
matter, to the effect that obligations of the general character of the Bonds, including any or all
underlying arrangements, are not exempt from registration under or other requirements of the
1933 Act, or that the Bond Resolution is not exempt from qualification under or other
requirements of the Trust Indenture Act, or that the issuance, offering, or sale of obligations of
the general character of the Bonds, including any and all underlying arrangements, as
contemplated hereby or by the Limited Offering Memorandum or otherwise, is or would be in
violation of the federal securities law as amended and then in effect;
(c) Suspension on Moratorium. A general suspension of trading in securities on the
New York Stock Exchange or the American Stock Exchange, the establishment of minimum
prices on either such exchange, the establishment of material restrictions (not in force as of the
date hereof) upon trading securities generally by any governmental authority or any national
securities exchange, a general banking moratorium declared by federal, State of New York, or
State officials authorized to do so;
(d) Cham,e of Law. Any amendment to the federal or Texas Constitution or action
by any federal or Texas court, legislative body, regulatory body, or other federal or Texas
authority materially adversely affecting the tax status of the Issuer, its property, income
securities (or interest thereon), or the validity or enforceability of the assessments or the levy of
taxes generating Contract Tax Increment, or the ability of the Issuer to receive Contract Tax
Increment from the City, the County, the Hospital District or College;
(e) Adverse Affect on Disclosure. Any event occurring, or information becoming
known which, in the judgment of the Underwriter, makes untrue in any material respect any
material statement or information contained in the Limited Offering Memorandum, or has the
effect that the Limited Offering Memorandum contains any untrue statement of material fact or
omits to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
(f) Material Chanl~e. There shall have occurred since the date of this Bond Purchase
Agreement any materially adverse change in the affairs or financial condition of the Issuer;
(g) Armed Conflict. The United States shall have become engaged in hostilities
which have resulted in a declaration of war or a national emergency, or there shall have occurred
any other outbreak or substantial escalation of existing hostilities or a national or international
calamity or crisis, financial or otherwise, the effect of such outbreak, calamity or crisis on the
financial markets of the United States being such as, in the reasonable opinion of the
Underwriter, would materially and adversely affect the ability of the Underwriter to market the
Bonds;
(h) Amendment of Suvvlement. Any fact or event shall exist or have existed that, in
the Underwriter's reasonable judgment, requires or has required an amendment of or supplement
to the Limited Offering Memorandum; and
45474063 1
12
(i) Prohibition Against Resale. The purchase of and payment for the Bonds by the
Underwriter, or the resale of the Bonds by the Underwriter, on the terms and conditions herein
provided shall be prohibited by any applicable law, governmental authority, board, agency or
commission.
9. Expenses.
(a) The Underwriter shall be under no obligation to pay, and the Issuer shall pay, the
following expenses incident to the performance of the Issuer's obligations hereunder, including,
but not limited to (i) the cost of preparation and printing of the Bonds; (ii) the fees and
disbursements of Bond Counsel; (iii) the fees and disbursements of any other engineers,
accountants, and other experts, consultants or advisors retained by the Issuer; (iv) the costs of
preparing, printing and mailing the Limited Offering Memorandum; (v) fees of the Issuer's
financial advisor; (vi) the transcript review fee of the Attorney General of Texas; (vu) the fees
and expenses of the Paying Agent/Registrar and Trustee; (viii) the out-of-pocket, miscellaneous
and closing expenses, including the cost of travel, of the officers of the Issuer; and (ix) any other
expenses mutually agreed to by the Issuer and the Underwriter to be reasonably considered
expenses of the Issuer which are incident to the transactions contemplated hereby.
(b) The Underwriter shall pay (i) the cost of preparation and printing of this Bond
Purchase Agreement; (ii) all advertising expenses in connection with the offering of the Bonds;
(iii) the fees and disbursements of counsel retained by the Underwriter; and (iv) all other
expenses incurred by it in connection with the offering of the Bonds.
10. Notices. Any notice or other communication to be given to the Issuer under this
Bond Purchase Agreement may be given by delivering the same in writing to North Padre Island
Development Corporation, 1201 Leopard, Corpus Christi, Texas 78401, Attention: Chair, and
any notice or other communication to be given to the Underwriter under this Bond Purchase
Agreement may be given by delivering the same in writing to M.E Allison & Co., Inc., 950 East
Basse Road, Second Floor, San Antonio, Texas 78209.
11. Parties in Interest. This Bond Purchase Agreement as heretofore specified shall
constitute the entire agreement between us and is made solely for the benefit of the Issuer and the
Underwriter (including successors or assigns of the Underwriter) and no other person shall
acquire or have any right hereunder or by virtue hereof. This Bond Purchase Agreement may not
be assigned by the Issuer. All of the Issuer's representations, warranties and agreements
contained in this Bond Purchase Agreement shall remain operative and in full force and effect,
regardless of (i) any investigations made by or on behalf of the Underwriter; (ii) delivery of and
payment for the Bonds pursuant to this Bond Purchase Agreement; and (iii) any terrmnation of
this Bond Purchase Agreement.
12. Effectiveness. This Bond Purchase Agreement shall become effective upon the
acceptance hereof by the Issuers and shall be valid and enforceable at the time of such
acceptance.
13. Choice of Law. This Bond Purchase Agreement shall be governed by and
construed in accordance with the law of the State of Texas.
454740631
13
14. Severability. If any provision of this Bond Purchase Agreement shall be held or
deemed to be or shall, in fact, be invalid, inoperative or unenforceable as applied in any
particular case in any jurisdiction or jurisdictions, or in all jurisdictions because it conflicts with
any provision of any Constitution, statute, role of public policy, or any other reason, such
circumstances shall not have the effect of rendering the provision in question invalid, inoperative
or unenforceable in any other case or circumstance, or of rendering any other provision or
provisions of this Bond Purchase Agreement invalid, inoperative or unenforceable to any extent
whatever.
15. Business Day. For purposes of this Bond Purchase Agreement, "business day"
means any day on which the New York Stock Exchange is open for trading.
16. Section Headings. Section headings have been inserted in this Bond Purchase
Agreement as a matter of convenience of reference only, and it is agreed that such section
headings are not a part of this Bond Purchase Agreement and will not be used in the
interpretation of any provisions of this Bond Purchase Agreement.
17. Counterparts. This Bond Purchase Agreement may be executed in several
counterparts each of which shall be regarded as an original (with the same effect as if the
signatures thereto and hereto were upon the same document) and all of which shall constitute one
and the same document.
[EXECUTION PAGE FOLLOWS]
45474063 [
14
If you agree with the foregoing, please sign the enclosed counterpart of this Bond
Pumhase Agreement and return it to the Underwriter. This Bond Purchase Agreement shall
become a binding agreement between you and the Underwriter when at least the counterpart of
this letter shall have been signed by or on behalf of each of the parties hereto.
Respectfully submitted,
M.E. ALLISON & CO., INC.
By:
Title:
Accepted this __ day of
, 2004.
NORTH PADRE ISLAND DEVELOPMENT
CORPORATION
By:
Title:
ATTEST:
By:
Title:
45474063.1
15
EXHIBIT A
BOND TERMS
Dated Date: [
Principal Amount: $[ 1
Maturity Date: September 15, 2022
Interest Rate: Coupon
[ 1
(Bonds bear interest from date of delivery).
Yield
Interest Payment Dates:
Redemption Provisions:
March 15 and September 15, commencing March 15, 2005
Optional Redemption.- The Bonds are subject to redemption prior to maturity at the
option of the Issuer, in whole or in part, from time to time on September 15, 2009, or any date
thereafter, at a price equal to the principal amount of the Bonds to be redeemed, plus a premium
on and after September 15, 2009 of 5% reducing 1% on each September 15 thereafter until
September 15, 2014, when the Bonds may be redeemed at par. plus, in each case, accrued
interest from the most recent interest payment date to the date fixed for redemption. If less than
all of the bonds are to be redeemed, the Issuer shall determine the particular Bonds or portions
thereof to be redeemed; provided, that if any Bond is selected for redemption in part it shall not
be redeemed in an amount that would, upon exchange, result in a Bond in a denomination less
than $100,000.
Mandatory Sinkin~ Fund Redemption.-The Bonds are subject to mandatory sinking fund
redemption prior to maturity in the amounts and on the dates set out tn the attached Schedule A.
The Bonds to be redeemed in any year by mandatory sinking fund redemption shall be
selected by lot from the Bonds then subject to redemption; provided, that if any Bond is selected
for redemption in part it shall not be redeemed in an amount that would, upon exchange, result in
a Bond in a denomination less than $100,000.
The principal amount of Bonds required to be redeemed on each such redemption date
pursuant to the foregoing operation of the mandatory sinking fund redemption shall be reduced,
at the option of the Issuer, by the principal amount of the bonds which, at least 45 days prior to
the mandatory sinking funds redemption date, (1) shall have been acquired by the Issuer and
delivered to IP Morgan Chase Bank, as paying agenffregistrar (the "Paying Agent/Registrar") for
cancellation or (2) shall have been acquired and canceled by the Paying Agent/Registrar at the
direction of the Issuer, in either case of (1) or (2) at a price not exceeding the par or principal
amount of such Bonds, or (3) shall have been redeemed pursuant to the optional redemption
provisions described above and not theretofore credited against a mandatory sinking fund
redemption. During any period in which ownership of the Bonds is determined by a book entry
at a securities depository for the Bonds, if fewer than all of the bonds of the same maturity and
bearing the same interest rate are to be redeemed, the particular Bonds of such maturity to be
redeemed shall be selected in accordance with the arrangements between the Issuer and the
45474063.1
Exhibit A - Page 1
securities depository; provided, that if any Bond is selected for redemption in part it shall not be
redeemed in an amount that would result, upon exchange, in a Bond in a denomination less than
$100,000.
45474063
Exhibit A - Page 2
ATTACHMENT A TO EXHIBIT A
September 15
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
Total
~cipal
Amour
* maturity
45~74063. I
Attachment A to Exhibit A - Page 1
EXHIBIT B
OPINION OF GENERAL COUNSEL TO THE ISSUER
1. The Issuer is validly existing as a not-for-profit local government corporation in
good standing under the laws of the State of Texas. It is exempt from payment of federal income
taxes on its income.
2. The Issuer has the corporate power to execute, deliver and perform its obligations
under the Bond Purchase Agreement, the Bond Resolution, the Indenture, the Bonds, and the Tri-
Party Agreement, and to pledge the Contract Tax Increments to be received by it and the other
moneys, rights and interests pledged pursuant to the Indenture.
3. The Issuer has duly authorized, executed and dehvemd the Bond Purchase
Agreement, the Bond Resolution, the Indenture, the Bonds, and the Tri-Party Agreement.
4. The Bond Resolution, the Indenture, the Purchase Agreement, and the Tri-Party
Agreement constitute the legal, valid and binding obligations of the Issuer enforceable in
accordance with their terms, except as the enforceability thereof may be subject to or limited by
applicable bankruptcy, insolvency, reorganization, arrangement, moratorium, and other similar
laws relating to or affecting creditors' rights generally, and subject as to enforceability, to
general principles of equity.
5. The execution, delivery and performance by the Issuer of the Bond Resolution,
the Indenture, the Bond Purchase Agreement, and the Th-Party Agreement do not require the
authorization, approval or consent of any governmental authority, except for such authorizations,
approvals or consents as have already been obtained.
6. The execution and delivery of the Bond Resolution, the Indenture, the Bond
Purchase Agreement, and the Th-Party Agreement, and compliance with the terms and
provisions of each thereof, will not conflict with or constitute a breach of or default under, or,
except with respect to the pledge of the Pledged Revenues (as such term is defined in the
Indenture) under the Indenture, result in the creation of any lien, charge or encumbrance under
(a) the Articles of Incorporation or Bylaws of the Issuer; (b) any material indenture, mortgage,
deed of trust, agreement or other instrument known to us to which the Issuer is a party or is
otherwise subject to or bound; or (c) any order, law, rule or regulation applicable to the Issuer of
any court or other governmental body of which we are aware.
7. There is no action, suit, proceeding or investigation at law or in equity before or
by any court, against or affecting the Issuer wherein an adverse determination would affect the
corporate power of the Issuer to make or perform its obligations under the Bond Purchase
Agreement, the Bond Resolution, the Indenture or the Tfi-Party Agreement, or which would
impair the issuance, sale or delivery of the Bonds.
8. The Issuer has pledged, and all necessary action on the part of the Issuer has been
taken as required to pledge under the Indenture, all of the Issuer's right, title and interest in the
Pledged Revenues to the Trustee on behalf of the holders of the Bonds.
45474063.1
Exhibit B - Page 1
9. The Issuer's pledge of the Pledged Revenues is valid and binding in accordance
with its terms without further action on its part and without any filing or recording with respect
thereto except in the records of the Issuer.
[0. Nothing in any statute, regulation, order or rule of law applicable to or affecting
the Issuer either grants or affords to the Issuer the benefit of any claim or defense of sovereign or
governmental immumty from, or otherwise operates to exempt the Issuer from service of,
process or suit in an appropriate court having jurisdiction over the Issuer in connection with any
contract claim which may be asserted with respect to the matters which are the subject of the
Bonds, the Bond Resolution, the Indenture, the Bond Purchase Agreement or the Th-Party
Agreement.
11. The information contained in the Limited Offering Memorandum under the
heading "THE ISSUER" and "THE ZONE" fairly summarizes the matters of law and
information purported to be shown therein.
45474063.1
Exhibit B - Page 2