EXHIBIT 3
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BOND PURCHASE AGREEMENT
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ RIVER AUTHORITY (TEXAS)
$40,890,000
Pollution Control Revenue Refunding Bonds
(Central Power and Light Company Project)
Series 1995
BOND PURCHASE AGREEMENT (this "Purchase Agreement") dated October __,
1995 between ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ RIVER AUTHORITY, a governmental agency and body
politic and corporate of the State of Texas (the "Issuer") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& CO. INCORPORATED (the "Underwriter").
1. Background
(a) Subject to the terms and conditions herein set forth, the
Underwriter hereby agrees to purchase from the Issuer, and the Issuer hereby
agrees to sell and deliver to the Underwriter, the Pollution Control Revenue
Refunding Bonds (Central Power and Light Company Project) Series 1995 (the
"Refunding Bonds") in the principal amount of $40,890,000. The Refunding
Bonds shall be dated, shall mature and shall bear interest from time to time
at adjustable or fixed rates as set forth in Section 2 hereof and shall
otherwise have such terms and provisions as set forth in the Refunding Bonds,
the Official Statement and the Indenture (as hereinafter defined).
(b) The Refunding Bonds will be issued pursuant to resolutions
adopted by the Board of Directors of the Issuer on October 18, 1995 (the
"Resolution"), and under an Indenture of Trust dated as of October 1, 1995
(the "Indenture") between the Issuer and The Bank of New York, as trustee (the
"Trustee"). The Refunding Bonds are to be issued to provide funds for the
redemption and cancellation of all outstanding ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ River
Authority (Texas) 6% Pollution Control Revenue Bonds (Central Power and Light
Company Project) Series 1977 (the "Series 1977 Bonds") and all outstanding
Port of Corpus Christi Authority of Nueces County, Texas (formerly Nueces
County Navigation District No. 1) 7 1/8% Environmental Improvement Revenue
Bonds (Central Power and Light Company Facilities) Series 1974, Issue A (the
"Series 1974A Bonds"). The Series 1977 Bonds were originally issued to
provide funds for the acquisition, construction and improvement of certain
facilities designed to ▇▇▇▇▇ or control air and water pollution (the "Coleto
Facilities") at the Coleto Creek generating plant of Central Power and Light
Company (the "Company") located in Goliad County, Texas. The Series 1974A
Bonds were originally issued to provide funds for the acquisition,
construction and improvement of air and water pollution control facilities
(the "▇▇▇▇▇ Facilities", and together with the Coleto Facilities, the
"Facilities") at the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Power Station which is operated by the
Company and located in Nueces County, Texas. In connection with the issuance
of the Refunding Bonds, the Issuer and the Company have entered into an
Installment Payment Agreement dated as of October 1, 1995 (the "Installment
Agreement"), which obligates the Company to pay amounts designed to be
sufficient to pay the principal of, premium, if any, and interest on the
Refunding Bonds. The Issuer has assigned the right to receive such payments
from the Company to the Trustee pursuant to the Indenture.
(c) ABN AMRO Bank N.V. (the "Bank") has made a commitment to issue an
irrevocable, direct pay letter of credit (the "Letter of Credit") with respect
to the Refunding Bonds and effective as of the date of issuance of the
Refunding Bonds.
(d) Concurrently with the execution and delivery of this Purchase
Agreement, the Company is delivering to the Issuer and the Underwriter its
Letter of Representation dated of even date herewith in substantially the form
of Appendix A hereto (the "Letter of Representation") indicating its approval
of the terms and provisions of this Purchase Agreement and acknowledging that
the Issuer will sell the Refunding Bonds to the Underwriter and the
Underwriter will purchase the Refunding Bonds and make a public offering
thereof in reliance upon the representations, covenants and indemnities
contained in the Letter of Representation.
(e) The Facilities constitute solid waste disposal facilities or air
or water pollution control facilities for purposes of Section 103(b)(4)(E) or
(F) of the Internal Revenue Code of 1954, as amended. The Refunding Bonds
will be obligations described in Section 1313 of the Tax Reform Act of 1986 so
that interest on the Refunding Bonds will not be includible in gross income
for federal tax purposes (except as noted in the opinion of Bond Counsel
included as Appendix B to the Official Statement) and the Underwriter may
offer the Refunding Bonds for sale without registration under the Securities
Act of 1933, as amended (the "Securities Act"), or qualification of the
Indenture under the Trust Indenture Act of 1939, as amended (the "Trust Act").
(f) A Preliminary Official Statement dated October __, 1995,
including all Appendices thereto and all documents incorporated therein by
reference (the "Preliminary Official Statement"), has been prepared for use in
the offering of the Refunding Bonds, and a final Official Statement dated as
of the date hereof, including all Appendices thereto and all documents
incorporated therein by reference (the "Final Official Statement"), has been
delivered by the Issuer to the Underwriter. The Final Official Statement, as
it may be amended or supplemented with the consent of the Issuer, the
Underwriter and the Company, is hereinafter referred to as the "Official
Statement."
2. Purchase, Sale and Closing. Subject to the terms and conditions
herein set forth, the Underwriter agrees to purchase from the Issuer, and the
Issuer agrees to sell to the Underwriter, the Refunding Bonds at a purchase
price equal to 100% of the principal amount thereof. The Refunding Bonds
shall be dated [October 1], 1995, shall mature on ____, and shall bear
interest at the Flexible Rate, the Daily Rate, the Weekly Rate, the Monthly
Rate, the Quarterly Rate, the Semiannual Rate, the Multiannual Rate or the
Fixed Rate (all as defined and more fully described in the Indenture).
Payment for the Refunding Bonds shall be made in immediately available Federal
funds payable to the order of the Trustee for the account of the Issuer.
Closing (the "Closing") will be at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ at 10:00 a.m., Dallas
time, on [October 26], 1995 (the "Closing Date"), or at such other date, time
or place as may be agreed on by the Issuer, the Company and the Underwriter.
Refunding Bonds will be delivered to The Depository Trust Company ("DTC") at
least 24 hours before Closing; the Refunding Bond will be registered in the
name of CEDE & Co., as nominee for DTC, in the denomination of $40,890,000.
3. Issuer's Representations. The Issuer makes the following
representations and warranties, all of which shall survive Closing:
(a) The information with respect to the Issuer contained in the
Preliminary Official Statement and in the Final Official Statement is,
and, as such information may be amended or supplemented as of the Closing
Date will be, true and correct in all material respects, and such
information does not, and as it may be amended or supplemented as of the
Closing Date will not, include any untrue statement of a material fact or
omit to state a material fact necessary to make the statements in the
Preliminary Official Statement and the Official Statement relating to the
Issuer, in the light of the circumstances under which they were made, not
misleading. The copies of the Final Official Statement delivered to the
Underwriter on the date hereof have been duly signed and delivered by the
Issuer.
(b) The Issuer is a duly constituted and validly existing
governmental agency and body politic and corporate of the State of Texas,
with full legal right, power and authority under and pursuant to Chapters
30 and 383, Texas Water Code (the "Enabling Legislation"), to execute and
deliver this Purchase Agreement, the Installment Agreement and the
Indenture, to sign and deliver the Official Statement, to carry out and
consummate the transactions contemplated by each of the foregoing and all
other agreements relating thereto, and to issue, sell and deliver the
Refunding Bonds for the purpose of refunding all or any part of
outstanding Series 1977 Bonds and Series 1974A Bonds.
(c) The Issuer has full legal right, power and authority and has
taken all necessary action and has complied with all applicable
provisions of law required (i) to adopt the Resolution, (ii) to execute
and deliver this Purchase Agreement, the Installment Agreement, the
Refunding Bonds and the Indenture, (iii) to issue and sell the Refunding
Bonds to the Underwriter pursuant hereto and to the Indenture and (iv) to
carry out and consummate all other transactions contemplated by each of
such documents, and the Issuer has complied with all applicable
provisions of law in all matters relating to such transactions.
(d) The Issuer has duly authorized (i) the delivery and due
performance of the Resolution and the execution, delivery and due
performance of this Purchase Agreement, the Installment Agreement, the
Refunding Bonds and the Indenture, including, without limitation, the
issuance and sale of the Refunding Bonds to the Underwriter, (ii) the
execution and delivery of the Official Statement by the Issuer and the
distribution of the Preliminary Official Statement and the Official
Statement and (iii) the taking of any and all such action as may be
required on the part of the Issuer to carry out, give effect to and
consummate the transactions contemplated by each of the foregoing. None
of the proceedings or actions taken by the Issuer with respect to any of
the Refunding Bonds, the Indenture, the Installment Agreement, the
Preliminary Official Statement, the Official Statement or this Purchase
Agreement have been repealed, rescinded or revoked. The Official
Statement is deemed final by the Issuer for purposes of Rule 15c2-12
("Rule 15c2-12") under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(e) The Issuer has not been notified of any listing or proposed
listing by the Internal Revenue Service to the effect that the Issuer is
a bond issuer whose arbitrage certifications may not be relied upon.
(f) The Resolution has been duly adopted by the Issuer, is in full
force and effect and constitutes the legal, valid and binding act of the
Issuer. This Purchase Agreement has been duly executed and delivered by
the Issuer and constitutes the legal, valid and binding obligation of the
Issuer enforceable against the Issuer in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the enforcement
of creditors' rights generally and to the effect of general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law). The Installment Agreement and the
Indenture each will be duly executed by the Issuer and, when delivered,
each will constitute the legal, valid and binding obligation of the
Issuer enforceable against the Issuer in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the enforcement
of creditors' rights generally and to the effect of general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law).
(g) When delivered to and paid for by the Underwriter at Closing in
accordance with the provisions of this Purchase Agreement, the Refunding
Bonds initially delivered will have been duly approved by the Attorney
General of the State of Texas and registered by the Comptroller of Public
Accounts of the State of Texas, and the Refunding Bonds will be duly
authorized, executed, issued and delivered and will constitute legal,
valid, binding and enforceable special obligations of the Issuer in
accordance with their terms and in conformity with the Enabling
Legislation and will be entitled to the benefit and security of the
Installment Agreement, the Resolution and the Indenture.
(h) No approval, permit, consent or authorization of any
governmental or public agency, authority or person not already obtained
(other than the approval of the Attorney General of the State of Texas
with respect to the Refunding Bonds, the registration of the Refunding
Bonds by the Comptroller of Public Accounts of the State of Texas and the
order of the Securities and Exchange Commission (the "Commission") under
the Public Utility Holding Company Act of 1935, as amended (the "1935
Act"), authorizing the Company's obligations with respect to the
Refunding Bonds and the Installment Agreement, which approvals and orders
shall be obtained on or prior to the Closing Date, the receipt of which
are expressly made a condition to the Issuer's, the Underwriter's and the
Company's respective obligations to issue, purchase and sell the
Refunding Bonds hereunder and under the Letter of Representation; and
other than any approvals that might be required under the Blue Sky or
securities laws of any jurisdiction) is required in connection with the
issuance and sale of the Refunding Bonds, the adoption of the Resolution
or the execution and delivery by the Issuer of the Refunding Bonds, the
Installment Agreement, the Indenture or this Purchase Agreement or the
performance of its obligations under any of such instruments.
(i) The adoption of the Resolution, the issuance and sale of the
Refunding Bonds, the acceptance of the Letter of Representation, the
execution and delivery by the Issuer of this Purchase Agreement, the
Installment Agreement, the Refunding Bonds and the Indenture, the
execution and delivery by the Issuer of the Official Statement and
compliance with the provisions hereof and thereof, will not conflict
with, violate or result in a breach of any provision of, or constitute a
default (or an event which with notice or passage of time, or both, would
constitute a default) on the part of the Issuer under, any indenture,
commitment, agreement or other instrument to which the Issuer is a party
or by which it is bound, or under any provision of the Texas Constitution
or any existing law, rule, regulation, judgment, ordinance, order or
decree to which the Issuer (or any of its directors or officers in their
respective capacities as such) is subject, or result in the creation or
imposition of any lien, charge or other security interest or encumbrance
of any nature whatsoever upon any of the property, assets or revenues of
the Issuer, except as provided in the Refunding Bonds and the Indenture.
(j) The Issuer is solvent and since its creation, the Issuer has not
been in default in the payment of principal of, premium, if any, or
interest on, or otherwise been in default with respect to, any of its
bonds, notes or other securities or any legally authorized obligation
issued or guaranteed by it; and no bankruptcy or insolvency proceedings
have been taken by or against the Issuer.
(k) Payments under the Installment Agreement, the Indenture, the
Resolution and the Refunding Bonds, and the interest on the Refunding
Bonds, are not subject to taxation in the State of Texas. No
legislation, ordinance, rule or regulation has been enacted by, or is
currently pending before, any governmental body, department or agency of
the State of Texas, nor has any decision been rendered by any court of
competent jurisdiction of the State of Texas, which would adversely
affect the exemption from all taxation in the State of Texas of (i) any
payments under the Installment Agreement, the Indenture, the Resolution
or the Refunding Bonds and the interest on the Refunding Bonds or (ii)
all bonds and obligations of the general character of the Refunding
Bonds. There are no stamp, documentary, transfer or like taxes in the
State of Texas which would be applicable to the original issuance or
subsequent transfers of the Refunding Bonds.
(l) There is no action, suit, proceeding, inquiry or investigation,
at law or in equity, before or by any court, public board, governmental
agency or body or arbitrator, pending or, to the best of the knowledge of
the Issuer, threatened (nor to the best of the knowledge of the Issuer is
there any basis therefor), which in any way questions the validity of the
Enabling Legislation, the powers of the Issuer referred to in
paragraphs (b) and (c) of this Section 3 above, or the validity of any
proceedings taken by the Issuer in connection with the issuance and sale
of the Refunding Bonds, or wherein an unfavorable decision, ruling or
finding might adversely affect the transactions contemplated hereby or by
the Installment Agreement, the Indenture or the Official Statement or
which, in any way, might adversely affect the validity or enforceability
of the Refunding Bonds, the Resolution, the Installment Agreement, the
Indenture or this Purchase Agreement (or of any other instrument required
or contemplated for use in consummating the transactions contemplated
thereby or hereby) or the exclusion from gross income for federal income
tax purposes of interest on the Refunding Bonds.
4. Covenants and Agreements of the Issuer. The Issuer covenants
and agrees with the Underwriter that it will:
(a) Furnish or cause to be furnished to the Underwriter (i) on the
date of the execution of this Purchase Agreement, two copies of the Final
Official Statement and, on the date of any amendment or supplement
thereto, two copies of such amendment or supplement, prepared in a manner
consistent with (b) below, in each case signed by or on behalf of the
Issuer by its Chairman and (ii) on or prior to the Closing Date, two
specimens of the form of Refunding Bond, two certified copies of the
Resolution and two executed copies of the Indenture and of the
Installment Agreement (which documents shall be in the forms previously
delivered to the Underwriter, subject to such changes as the Underwriter
shall approve); the Issuer agrees that the Company may at its expense
furnish to the Underwriter, without charge, as many copies of the
Official Statement and any amendment or supplement thereto as the
Underwriter may reasonably request.
(b) Before amending or supplementing the Official Statement, furnish
to the Underwriter two copies and the Company two copies of each proposed
amendment or supplement. No amendment or supplement to the Official
Statement will contain material information different from that contained
in the Final Official Statement which is reasonably unsatisfactory to the
Underwriter or the Company.
(c) During such period as the Underwriter believes delivery of the
Official Statement is necessary or desirable in connection with sales of
the Refunding Bonds by the Underwriter or a dealer, if any event shall
occur as a result of which it may be necessary to amend or supplement the
Official Statement in order to make the statements therein, in the light
of the circumstances when the Official Statement is delivered to a
purchaser, not misleading, immediately notify the Underwriter and the
Company of such event and cooperate at the request of the Underwriter in
the preparation of amendments or supplements to the Official Statement
which in the judgment of the Underwriter are necessary so that the
statements in the Official Statement as so amended or supplemented will
not, in light of the circumstances when the Official Statement is
delivered to a purchaser, be misleading.
(d) Cooperate in qualifying the Refunding Bonds for offer and sale
and in determining their eligibility for investment under the laws of
such jurisdictions as the Underwriter may reasonably request, provided
that the Issuer shall not be required to qualify to do business or
consent to general service of process in any state or jurisdiction other
than the State of Texas.
(e) Apply the proceeds from the issuance and sale of the Refunding
Bonds in the manner set forth in the Official Statement, and not take any
action which will adversely affect the exclusion from gross income for
federal income tax purposes of the interest on the Refunding Bonds.
(f) Promptly make or cause to be made under the Uniform Commercial
Code of the State of Texas, or under any other applicable law, at such
times as may be required, all filings, if any, required in order to
establish, maintain, protect or preserve the interest of the Trustee in
the rights assigned to it under the Resolution, the Installment Agreement
and the Indenture.
(g) The Issuer will refrain from knowingly taking any action with
regard to which the Issuer may exercise control that would result, or
could reasonably be expected to result, in the loss of the exclusion from
gross income for federal income tax purposes of the interest on the
Refunding Bonds referred to under the caption "Tax Matters" in the
Official Statement.
5. Survival of Representations, Warranties and Agreements. The
respective covenants, agreements, representations, warranties and other
statements of each of the Issuer and the Underwriter, as set forth in this
Purchase Agreement or made by them pursuant to this Purchase Agreement, shall
remain in full force and effect, regardless of any investigation made by or on
behalf of the Issuer or the Underwriter or any officer, director or
controlling person thereof, and shall survive the termination of this Purchase
Agreement and the delivery of and payment for the Refunding Bonds.
6. Conditions of Underwriter's Obligations. The Underwriter's
obligation to purchase and pay for the Refunding Bonds at Closing is subject
to the performance by the Issuer of its obligations and agreements to be
performed hereunder and under the Installment Agreement, the Resolution and
the Indenture at or prior to Closing and the performance by the Company of the
obligations to be performed by it under the Letter of Representation, the
Installment Agreement, the Letter of Credit, the Letter of Credit Agreement
between the Company and the Bank, dated as of ___, 1995 and relating to the
Refunding Bonds (the "Letter of Credit Agreement") and the Remarketing
Agreement between the Company and the Remarketing Agent dated the Closing Date
relating to the Refunding Bonds (the "Remarketing Agreement") at or prior to
Closing and to the fulfillment of the following conditions at or prior to
Closing:
(a) The Company shall have executed and the Issuer shall have
accepted the Letter of Representation, and the representations and warranties
of the Issuer herein and of the Company in the Letter of Representation shall
be true and correct on and as of the Closing Date;
(b) Each of the Indenture, the Installment Agreement, the Letter of
Credit, the Remarketing Agreement and the Letter of Credit Agreement shall
have been duly authorized, executed and delivered by the respective parties
thereto and shall be in full force and effect, and each shall not have been
amended, modified or supplemented since the date hereof except as may have
been agreed to by the Underwriter;
(c) Neither the Issuer nor the Company shall be in default in the
performance of any of its covenants and agreements herein or in the Letter of
Representation, respectively;
(d) Subsequent to the execution of this Purchase Agreement, there
shall not have been any downgrading of any rating by ▇▇▇▇▇'▇ Investors
Service, Inc. or Standard & Poor's Ratings Group of any securities issued by
the Company or of any bonds issued by the Issuer with respect to the
Facilities or of the Refunding Bonds;
(e) The Underwriter shall have received:
(i) The Final Official Statement signed on behalf of the Issuer
by its Chairman, together with any amendments or supplements thereto to
the Closing Date;
(ii) Opinions of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., Bond Counsel
("Bond Counsel"), dated the Closing Date, substantially in the forms
attached hereto as Exhibit A-1 and Exhibit A-2;
(iii) An opinion, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ L.L.P. ("Issuer's Counsel"), counsel for the Issuer, substantially
in the form attached hereto as Exhibit B;
(iv) An opinion, dated the Closing Date, of Milbank, Tweed,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel for the Company, substantially in the
form attached hereto as Exhibit C;
(v) An opinion, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇
L.L.P., special counsel for the Company, substantially in the form
attached hereto as Exhibit D;
(vi) An opinion, dated the Closing Date, of Sidley & Austin,
counsel for the Underwriter, substantially in the form attached hereto as
Exhibit E;
(vii) A letter, dated the Closing Date, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
independent certified public accountants of the Company, in form and
substance satisfactory to the Underwriter and its counsel and covering
the matters set forth in Exhibit F hereto;
(viii) A certificate, dated the Closing Date, signed by the
Chairman of the Issuer or other appropriate official satisfactory to the
Underwriter, to the effect that each of the representations and
warranties of the Issuer set forth in this Purchase Agreement is true and
correct on and as of the Closing Date as if made on and as of the Closing
Date and that all agreements to be complied with and obligations to be
performed by the Issuer hereunder and under the Installment Agreement,
the Resolution and the Indenture on or prior to the Closing Date or as
contemplated hereby or thereby have been complied with and performed;
(ix) A certificate, dated the Closing Date, signed by a Vice
President or the Treasurer of the Company to the effect that, (A) the
representations and warranties contained in the Letter of Representation
and the Remarketing Agreement or in any certificate delivered by the
Company hereunder or thereunder are true and correct in all material
respects on and as of the Closing Date as if made on and as of the
Closing Date, (B) all agreements to be complied with and obligations to
be performed by the Company pursuant to the Letter of Representation, the
Remarketing Agreement and the Letter of Credit Agreement or as
contemplated by the Letter of Representation, the Remarketing Agreement,
the Letter of Credit Agreement, the Resolution, the Installment Agreement
or the Indenture on or prior to the Closing Date have been complied with
and performed and (C) there has been no material adverse change in the
Company's financial condition or any adverse development concerning its
business or assets which would result in a material adverse change in its
prospective financial condition or results of operations from that
described in or contemplated by the Official Statement or, if such change
has occurred, full information with respect thereto;
(x) A certificate, satisfactory in form and substance to the
Underwriter, of one or more duly authorized officers of the Trustee,
dated the Closing Date, as to the due authentication and delivery of the
Refunding Bonds by the Trustee under the Indenture;
(xi) Arbitrage certifications, satisfactory in form to the
Underwriter and Underwriter's counsel, by the Company and the Issuer
(which may be in the form of a single document);
(xii) Evidence, satisfactory to the Underwriter, of the ratings
on the Refunding Bonds;
(xiii) Such additional certificates (including appropriate no
litigation certificates), instruments or other documents as the
Underwriter or Underwriter's counsel may reasonably request to evidence
compliance with applicable law, the authority of the Trustee to act under
the Indenture, and the due performance and satisfaction by the Company at
or prior to such date of all agreements then to be performed and all
conditions then to be satisfied by it, in connection with this Purchase
Agreement, the Letter of Representation, the Remarketing Agreement, the
Letter of Credit Agreement, the Installment Agreement, the Resolution and
the Indenture, and to evidence that the interest on the Refunding Bonds
is excludable from the gross income of the owners thereof for federal
income tax purposes under the statutes, regulations, published rulings
and court decisions on the Closing Date, and the status of the offering
under the Securities Act, the 1935 Act and the Trust Act;
(xiv) An opinion, dated the Closing Date, of ____, counsel
for the Bank, with respect to the enforceability of the Letter of
Credit and certain matters contained in the Official Statement,
substantially in the form attached hereto as Exhibit G;
(xv) A copy of the Letter of Credit, duly executed by the
Bank and delivered to the Trustee, satisfactory in form and substance
to the Underwriter; and
(xvi) A certificate, satisfactory in form and substance to the
Underwriter, of one or more duly authorized officers of the Bank, to the
effect that the information with respect to the Bank (including Appendix
B) contained or incorporated by reference in the Official Statement
(including any amendments or supplements thereto) is true and correct in
all material respects and does not include, and the Preliminary Official
Statement as of its date did not include, any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein not misleading in light of the circumstances under
which they were made.
(f) At Closing there shall not have been any material adverse change
in the financial condition of the Company or any adverse development
concerning the business or assets of the Company which would result in a
material adverse change in the prospective financial condition or results of
operations of the Company from that described in the Official Statement which,
in the sole judgment of the Underwriter, makes it inadvisable to proceed with
the sale of the Refunding Bonds;
(g) The Commission shall have issued an order under the 1935 Act,
authorizing the Company's obligations with respect to the Refunding Bonds, the
Installment Agreement, the Remarketing Agreement and the Letter of Credit
Agreement; the Attorney General of the State of Texas shall have examined the
Refunding Bonds and the records relating to their issuance, shall have
certified as to their validity and shall have approved the Refunding Bonds;
and the Refunding Bonds shall have been registered by the Comptroller of
Public Accounts of the State of Texas;
(h) All matters relating to this Purchase Agreement, the Official
Statement, the Refunding Bonds and the sale thereof, the Installment
Agreement, the Remarketing Agreement, the Letter of Credit Agreement, the
Letter of Credit, the Indenture, the Resolution, the Letter of Representation,
and the consummation of the transactions contemplated hereby or thereby shall
be satisfactory to and approved by the Underwriter as of the Closing, which
approval shall not be unreasonably withheld. Any certificate signed by or on
behalf of the Issuer or the Company and delivered at the Closing shall be a
representation and warranty by the Issuer or the Company, as the case may be,
to the Underwriter as to the statements made therein;
(i) The Underwriter shall have received from the Company payment on
the Closing Date by wire transfer of the Underwriter's fees (___% of the
principal amount of the Refunding Bonds) as set forth in Section 5 of the
Letter of Representation; and
(j) Subsequent to the dates as of which information is given in the
Official Statement, there shall not have been any change or decrease specified
in the letter required by subsection (e)(vii) which is, in the judgment of the
Underwriter, so material and adverse as to make it impractical or inadvisable
to proceed with the offering or delivery of the Refunding Bonds as
contemplated in the Official Statement.
7. Events Permitting the Underwriter to Terminate. The Underwriter
may terminate its obligations to purchase the Refunding Bonds at any time
before Closing if any of the following occurs:
(a) A legislative, executive or regulatory action (including the
introduction or proposal for adoption of legislation, executive orders or
regulations) or a court decision which, in the sole judgment of the
Underwriter, casts sufficient doubt on the legality of, or the tax-free status
of interest on, obligations of the general kind and character as the Refunding
Bonds so as to materially impair the marketability or materially lower the
market price thereof or would make it impractical to market the Refunding
Bonds on the terms and in the manner contemplated in the Official Statement;
(b) Any action by the Commission, any other governmental agency, or
a court which, directly or indirectly, would require, in the reasonable
judgment of the Underwriter, (i) registration of the Refunding Bonds under the
Securities Act or (ii) qualification of an indenture in respect of the
Refunding Bonds under the Trust Act, or any such action or legislative,
executive or regulatory action with the purpose or effect of otherwise
prohibiting the issuance, offering or sale of the Refunding Bonds as
contemplated hereby or by the Official Statement or of obligations of the
general character of the Refunding Bonds;
(c) (i) Any general suspension or material limitation on trading in
securities on the New York Stock Exchange or by the Commission or by any
federal or state agency or by the decision of any court, any limitation on
prices for such trading or any restrictions on the distribution of securities,
(ii) trading in any securities of the Company shall have been suspended by the
Commission or a national securities exchange, (iii) a general banking
moratorium on commercial banking activities in New York shall have been
declared either by federal or New York State authorities, (iv) the rating
assigned by any nationally recognized securities rating agency to any
securities of the Company as of the date of this Purchase Agreement shall have
been lowered since that date or (v) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis, the effect of
which on the financial markets of the United States is such as to make it, in
the judgment of the Underwriter, impracticable to market the Refunding Bonds;
or
(d) Any event or condition not expressly contemplated in the
Official Statement which, in the sole judgment of the Underwriter, renders
untrue or incorrect, in any material adverse respect as of the time to which
the same purports to relate, the information, including the financial
statements, contained in the Official Statement, including Appendices thereto
and documents incorporated therein by reference, or which requires that
information not reflected in such Official Statement should be reflected
therein in order to make the statements and information contained therein not
misleading in any material respect at such time, which, in either event, in
the sole judgment of the Underwriter, makes it inadvisable to proceed with the
sale of the Refunding Bonds; provided, however, that the Underwriter shall not
exercise the termination right provided in this subparagraph (d) (i) until the
Underwriter shall have consulted with the Company with respect to the event or
condition at issue and (ii) so long as the Company and the Underwriter shall
reasonably believe that such event or condition can be eliminated or cured
prior to the Closing Date.
8. Execution in Counterparts. This Purchase Agreement may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument, and any of the parties hereto may
execute this Purchase Agreement by signing any such counterpart.
9. Notices and Other Actions. All notices, requests, demands and
formal actions hereunder will be in writing mailed, telegraphed or delivered
to:
The Underwriter:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Municipal Department
The Issuer:
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ River Authority
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Director of Finance
The Company:
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Director, Finance
10. GOVERNING LAW. THIS PURCHASE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
11. Successors. This Purchase Agreement will inure to the benefit
of and be binding upon the parties and their respective successors, and will
not confer any rights upon any
other person. The term "successor" shall not include any holder of any
Refunding Bonds merely by virtue of such holding.
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ RIVER AUTHORITY
By:_____________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Principal