$66,975,000
CASTLE ROCK RANCH PUBLIC IMPROVEMENTS AUTHORITY
PUBLIC FACILITIES REVENUE BONDS, SERIES 1996
PURCHASE AGREEMENT
March 26, 1996
Castle Rock Ranch Public Improvements Authority
0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
The undersigned, Xxxxxx Brothers Inc. (the "Purchaser"), hereby offers
to enter into this agreement (the "Purchase Agreement") with Castle Rock
Ranch Public Improvements Authority, a nonprofit Colorado corporation (the
"Authority"), for the purchase and sale of the Castle Rock Ranch Public
Facilities Revenue Bonds, Series 1996, as described below. This offer is
made subject to acceptance thereof by the Authority prior to 5:00 p.m.
(Eastern Standard Time) on the date hereof, and upon such acceptance, as
evidenced by the signature of the President of the Authority in the space
provided below. This Purchase Agreement shall be in full force and effect in
accordance with its terms and shall be binding upon the Authority and the
Purchaser. Terms used in this Purchase Agreement and not other-wise defined
herein shall have the meanings set forth in the Offering Memorandum (as
defined herein).
1. PURCHASE AND SALE OF THE BONDS.
(a) Upon the terms and conditions and upon the basis of the respective
representations, warranties and covenants contained herein, the Purchaser hereby
agrees to purchase from the Authority for offering to the public, and the
Authority hereby agrees to sell to the Purchaser for such purpose, on the date
of the Closing (as defined herein), all, but not less than all, of the
Authority's $66,975,000 aggregate principal amount of Public Facilities Revenue
Bonds, Series 1996 (the "Bonds"), at the purchase price of $66,488,558.55, which
represents the principal amount of the Bonds less an underwriter's discount of
$1,272,062.50 plus an aggregate premium of $785,621.05, plus accrued interest
from March 1, 1996 to the date of the Closing.
(b) The Bonds shall be as described in the Limited Offering Memorandum
dated March 26, 1996 delivered on the date hereof (which Limited Offering
Memorandum, including the cover page and all exhibits, appendices, reports and
statements included with or attached to it and any amendments and supplements
that may be authorized by the Authority and to which the Purchaser does not
reasonably object, and any amendments and supplements which may be
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reasonably required by the Purchaser, for use with respect to the Bonds, is
hereinafter called the "Offering Memorandum") and in APPENDIX A hereto and in
that certain Trust Indenture (the "Indenture") dated as of March 1, 1996 by
and between the Authority and SouthTrust Bank of Alabama, National
Association, as trustee (the "Trustee"), authorizing the issuance of, and
securing, the Bonds. The Bond proceeds will be used, after payment of cost
of issuance, along with other funds of the Authority, to acquire real
property and certain water rights as described in the Offering Memorandum.
2. LIMITED OFFERING OF THE BONDS. The Purchaser intends to make an
initial limited offering of the Bonds to institutional investors at the
prices (or yields) not in excess of the initial offering prices (or not lower
than the yields) set forth in APPENDIX A hereto, and the Purchaser may
subsequently change such initial offering prices (or yields). The Purchaser
agrees to notify the Authority of such changes, but failure to so notify the
Authority shall not invalidate such changes.
3. APPROVAL OF OFFERING MEMORANDUM. Simultaneously with the
Authority's acceptance hereof, the Authority shall deliver to the Purchaser
copies of the Offering Memorandum executed on behalf of the Authority by a
duly authorized officer.
The Authority consents to the use and distribution by the Purchaser of
the Offering Memorandum and the information contained therein in connection
with the offering and sale of the Bonds.
The Authority has previously provided the Purchaser with copies of its
Preliminary Limited Offering Memorandum dated February 19, 1996 and its
supplement thereto dated February 26, 1996 (collectively, the "Preliminary
Limited Offering Memorandum") with respect to the Bonds. The Authority
hereby confirms that, as of its date and as of the date hereof, the
Preliminary Limited Offering Memorandum was and is "deemed final' by the
Authority for purposes of Subsection (b)(1) of the Securities and Exchange
Commission Rule 15c2-12 ("Rule 15c2-12"). The Authority shall provide copies
of the Offering Memorandum in quantities specified by the Purchaser to permit
it to comply with Rule 15c2-12 and applicable rules of the Municipal
Securities Rulemaking Board.
The Purchaser agrees to make a limited offering of the Bonds to
institutional investors at the initial offering prices (or yields) set forth
on the cover page of the Offering Memorandum.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE AUTHORITY. The
Authority represents and warrants to and covenants with the Purchaser (and it
shall be a condition of the obligation of the Purchaser to purchase and
accept delivery of the Bonds that the Authority shall so represent, warrant
and covenant on the date hereof and as of the dates of the Closing) that:
(a) The Authority is a Colorado nonprofit corporation duly
organized and validly existing under the Constitution and laws of the State
of Colorado.
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(b) Pursuant to the articles of incorporation and bylaws of the
Authority, the Authority is authorized to (i) issue the Bonds for the
purposes for which they are to be issued as set forth in the Offering
Memorandum; (ii) enter into, execute and deliver this Purchase Agreement, the
Bonds, the Indenture, and all other documents to be executed by the Authority
at or before the Closing (including any supplemental indentures or related
certificates and documents which may be required in connection with the
issuance of the Bonds) (collectively, the "Authority Documents"),
substantially in the forms heretofore delivered to the Purchaser, with only
such changes therein as shall be mutually agreed upon among the parties
hereto; and (iii) to deliver to the Trustee the Deed of Trust (as defined and
described in the Offering Memorandum).
(c) Except as described herein as conditions to the issuance of the
Bonds, the Authority has full power and authority to consummate the
transactions contemplated by the Authority Documents and the Offering
Memorandum.
(d) The authorizing bond resolution dated March 1, 1996 of the
Authority approving and authorizing the execution and delivery of this
Purchase Agreement and approving the Offering Memorandum was duly adopted at
a duly convened meeting of the members of the board of the Authority which
was called and held pursuant to applicable law and at which a quorum was
present and acting throughout, or by consent of the members of the board of
the Authority. On or before the date of the Closing, the Authority shall
have adopted such supplemental authorizing bond resolutions, if any, required
to approve, authorize or ratify, as the case may be, the execution and
delivery of the Authority Documents, the Offering Memorandum and other
documents delivered pursuant thereto at a meeting of the Members of the Board
of the Authority which shall have been called and held pursuant to applicable
law and at which a quorum shall be present and acting throughout.
(e) Unless a notice is delivered pursuant to Section 4(g) hereof,
the information contained in the Offering Memorandum (except information
regarding the Credit Enhancement Provider or information provided by the
Purchaser for inclusion in the Offering Memorandum (the "Excluded
Information"), as to which information no representation is made) as of all
dates between and inclusive of its date and the final date the Purchaser is
required to provide a copy of the Offering Memorandum to any potential
customer pursuant to paragraph (b)(4) of Rule 15c2-12 (the "Bringdown Date")
will be, correct in all material respects; the Offering Memorandum (except
for the Excluded Information), subject to the giving of such notice, will
not, as of all dates between and inclusive of its date and the Bringdown
Date, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
(f) The Authority will advise the Purchaser promptly of the
institution of any action, suit, proceeding, inquiry or investigation known
to it seeking to prohibit or otherwise affect the use of the Offering
Memorandum in connection with the offering, sale or distribution of the Bonds.
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(g) If between the date hereof and the date of the Closing, or
between the date of the Closing and the Bringdown Date, any event shall occur
which is known to the Authority and which might cause the Offering Memorandum
to contain any untrue statement of a material fact or to omit to state a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, the Authority
shall notify the Purchaser, and if, in the opinion of the Purchaser, such
event requires the preparation and publication of a supplement or amendment
to the Offering Memorandum the Authority shall provide the information
necessary to supplement or amend the Offering Memorandum in a form and manner
approved by the Purchaser.
(h) The Authority has duly authorized and approved the execution
and delivery of this Purchase Agreement.
(i) Prior to the date of the Closing, the Authority shall have duly
authorized all necessary action to be taken by it for (i) the issuance and
sale of the Bonds for the purposes set forth herein and in the Offering
Memorandum and (ii) the approval, execution, delivery or receipt by the
Authority of the Authority Documents, the Bonds and any and all such other
agreements and documents as may be required to be executed, delivered or
received by the Authority in order to carry out, give effect to, and
consummate the transactions contemplated herein and in the Offering
Memorandum.
(j) The Authority shall, on or before the date of the Closing,
execute and deliver such of the Authority Documents as are required for such
Closing and the Offering Memorandum.
(k) The Bonds, when issued, delivered and paid for as provided
herein and in the Indenture, will have been duly authorized and issued and
will constitute valid and binding limited obligations of the Authority
enforceable in accordance with their respective terms and entitled to the
benefits and security of the Indenture (subject in each instance to any
applicable bankruptcy, reorganization, insolvency, moratorium or other
similar law or laws affecting the enforcement of creditors' rights generally
as from time to time in effect, and further subject to the availability of
equitable remedies and to the qualification that enforcement of the
indemnification provisions of this Purchase Agreement may be limited by
federal or state securities laws). The Bonds represent limited obligations
of the Authority and the principal of, and premium, if any, and interest on,
the Bonds are payable (except to the extent otherwise provided in the
Indenture) solely from the assets granted therefor and held by the Trustee
pursuant to the Indenture.
(l) There is no action, suit, proceeding, inquiry or investigation
at law or in equity or before or by any court, public board or body pending
or, to the knowledge of the Authority, threatened against or affecting the
Authority (and, to the knowledge of the Authority, there is no meritorious
basis therefor) wherein an unfavorable decision, ruling or finding could
adversely affect (i) the transactions contemplated herein or in the Offering
Memorandum; (ii) the validity of the proceedings taken by the Authority for
the adoption, authorization, execution, delivery
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and performance of the Authority Documents or any agreement or instrument to
which the Authority is a party and which is used or contemplated for use in
the consummation of the transactions contemplated herein or in the Offering
Memorandum; or (iii) the validity or enforceability of the Authority
Documents or any agreement or instrument to which the Authority is a party
and which is used or contemplated for use in the consummation of the
transactions contemplated herein or in the Offering Memorandum.
(m) Neither the corporate existence of the Authority nor the right
or title of the officers of the Authority to their offices are being
contested and no authority or proceeding for the issuance of the Bonds has
been repealed, revoked or rescinded.
(n) The execution and delivery by the Authority of the Offering
Memorandum, the Authority Documents and the other documents contemplated
herein or in the Offering Memorandum, and compliance with their provisions,
and the Authority's execution and delivery of the Deed of Trust for the
benefit of the Trustee and BFC Guaranty Corp. does not and will not conflict
with or constitute on the part of the Authority a breach of or a default
under any existing law, court or administrative regulation, decree or order,
agreement, indenture, mortgage or lease to which the Authority is a party or
by which the Authority or any of its properties is or may be bound.
(o) The Authority agrees to furnish such information, execute such
instruments and take such other action in cooperation with the Purchaser and
its counsel as the Purchaser and its counsel may reasonably request (i) in
any endeavor to qualify the Bonds for offering and sale under the securities
or "blue sky" laws or other securities laws or regulations of such
jurisdictions of the United States as the Purchaser may request; (ii) for the
application for exemption from such qualification- (iii) for the
determination of their eligibility for investment under the laws of such
jurisdictions as the Purchaser designates; and (iv) to provide for the
continuance of such qualifications or exemptions in effect for so long as
required for the distribution or remarketing of the Bonds; provided, however,
that the Authority shall not be required with respect to the offer or sale of
the Bonds to consent to suit or to consent to service of process in any
jurisdiction. The Authority consents to the use by the Purchaser of the
Preliminary Limited Offering Memorandum prior to the availability of the
Offering Memorandum in obtaining such qualification, exemption or
determination.
(p) The Authority authorizes and approves the use by the Purchaser
(including use prior to the date hereto of the Preliminary Limited Offering
Memorandum in connection with the offering of the Bonds.
(q) Any certificate signed by an authorized officer of the
Authority and delivered to the Purchaser shall be deemed a representation and
warranty by the Authority to the Purchaser as to the statements made therein.
(r) Neither the Authority, nor anyone acting on its behalf has,
directly or indirectly,
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offered the Bonds for sale to, or solicited any offer to buy the same from,
anyone other than the Purchaser.
(s) Except as described herein as conditions to the issuance of the
Bonds, no further authorization, approval, consent or other order of any
governmental authority or agency, or of any other entity or person(s) is
required for the valid authorization, execution and delivery of the Bonds,
the Offering Memorandum and the other Authority Documents.
(t) The Authority has not been notified of any listing or proposed
listing of the Internal Revenue Service to the effect that the Authority is
an issuer whose arbitrage certifications may not be relied on.
5. CLOSING. At 12:00 p.m. (Eastern Standard Time) on March 29, 1996
or at such other time or such other date as shall have been mutually agreed
upon by the Authority and the Purchaser, the Authority will deliver, or cause
to be delivered, to The Depository Trust Company ("DTC"), or its agent, on
behalf of the Purchaser, the Bonds in definitive form (or such temporary form
as the Purchaser shall find acceptable), duly executed by the Authority and
authenticated by the Trustee, and the Purchaser will accept such delivery and
pay the purchase price indicated in Section I hereof for the Bonds. The
Bonds will be delivered as I fully registered bond for each maturity,
registered in the name of Cede & Co. In the event the Bonds are delivered in
temporary form, the Authority shall deliver the Bonds in definitive form at
such date as the Purchaser may reasonably request. Payment of the purchase
price for the Bonds will be made by wire-transferring immediately available
funds to the Trustee. Such payment for and delivery of the Bonds is herein
called the "Closing."
It is anticipated that CUSIP identification numbers will be printed on
the Bonds, but neither the failure to print such numbers on any of the Bonds
nor any error in the printing of such numbers shall constitute cause for a
failure or refusal by the Purchaser to accept delivery of and pay for any of
the Bonds. The Purchaser and the Authority shall cooperate to obtain the
CUSIP numbers.
6. TERMINATION OF THE PURCHASE AGREEMENT. The Purchaser shall have the
fight to cancel its obligation to purchase the Bonds if, between the date
hereof and the date of the Closing:(i) legislation shall have been enacted by
the Congress of the United States or the legislature of the State of Colorado
or shall have been reported out of committee or be pending in committee, or a
decision shall have been rendered by a court of the United States or the
State of Colorado, or a ruling shall have been made or a regulation shall
have been proposed or made or any other release, announcement or inquiry
(evidence of which shall be furnished to the Authority shall have been made
by the Treasury Department of the United States or 'the Internal Revenue
Service, or other federal or state authority, with respect to federal or
state taxation upon interest on obligations of the general character of the
Bonds, that in the Purchaser's reasonable judgment, materially adversely
affects the market for the Bonds, or the market price generally of
obligations of the general character of the Bonds;
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(ii) there shall exist any event which (A) makes untrue or
incorrect statements or information contained in the Offering Memorandum or
which is not reflected in the Offering Memorandum but should be reflected
therein in order to make the statements and information therein not
misleading in any material respect and (B) in the reasonable judgment of the
Purchaser materially adversely affects the market for the Bonds, or the sale
of the Bonds, at the contemplated offering prices, by the Purchaser;
(iii) there shall have occurred any outbreak of hostilities or
other local, national or international calamity or crises, or a default with
respect to the debt obligations of, or the institution of proceedings under
the federal bankruptcy laws by or against any state of the United States or
agency thereof or any city in the United States having a population of over
one million persons, the effect of which on the financial markets of the
United States will be such as, in the Purchaser's reasonable judgment, makes
it impracticable for the Purchaser to market the Bonds or enforce contracts
for the sale of the Bonds;
(iv) there shall have occurred a general disruption in the trading
of securities on any national securities exchange or there shall be in force
a general suspension of trading on the New York Stock Exchange, or minimum or
maximum prices for trading shall have been fixed and be in force, or maximum
ranges for prices for securities shall have been required and be in force on
the New York Stock Exchange, whether by virtue of determination by the
exchange or by order of the Securities and Exchange Commission of the United
States or any other governmental authority having jurisdiction that, in the
Purchaser's reasonable judgment, makes it impracticable for the Purchaser to
market the Bonds, or enforce contracts for the sale of the Bonds;
(v) a general banking moratorium shall have been declared by any
federal or state authority having jurisdiction and be in force that, in the
Purchaser's reasonable judgment, makes it impracticable for the Purchaser to
market the Bonds or enforce contracts for the sale of the Bonds;
(vi) legislation shall be enacted or a bill shall be favorably
reported out of a committee of either house of Congress, or a decision by a
court of the United States shall be rendered, or a decision or stop order
shall be made, to the effect that obligations similar to the type
contemplated herein are not exempt from the registration, qualification or
other requirements of the Securities Act of 1933, as amended and as then in
effect, or of the Trust Indenture Act of 1939, as amended and as then in
effect, or otherwise are or would be in violation of any provision of the
federal securities laws-, or
(vii) there shall have been any material adverse change in the
affairs of the Authority which in the Purchaser's reasonable judgment will
materially adversely affect the market for the Bonds.
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7. CONDITIONS TO THE PURCHASER'S OBLIGATIONS. The obligations of the
Purchaser hereunder shall be subject to the performance by the Authority of
its obligations to be performed hereunder at and prior to the date of the
Closing, to the accuracy in all material respects, in the reasonable judgment
of the Purchaser, of the representations and warranties of the Authority
herein both as of the date hereof and as of the date of the Closing, and, in
the reasonable discretion of the Purchaser, to the following conditions,
including the delivery by the Authority of such documents, certificates and
opinions as are enumerated in Schedule I attached hereto, all in form and
substance reasonably satisfactory to the Purchaser:
(a) At the time of the Closing, the Credit Enhancement, the
Registration Rights Agreement and each of the Authority Documents shall be in
full force and effect in the respective forms heretofore approved by the
Authority and the Purchaser and none of the foregoing documents shall have
been amended, repeated, modified or supplemented from the forms thereof as of
the date hereof, except as may have been approved in writing by the Purchaser.
(b) At or prior to the Closing, the Authority, the Purchaser, the
Credit Enhancement Provider and the Trustee shall have duly executed and
delivered each of the documents listed on Schedule 1 hereto to which each,
respectively, is a party.
(c) At the time of the Closing, the net proceeds derived from the sale
of the Bonds shall be deposited with the Trustee and applied for the purposes
described in the Offering Memorandum and as provided in the Indenture.
(d) At or prior to the Closing, the Purchaser shall receive the
documents listed on Schedule I hereto in such number of counterparts as shall
be mutually agreeable to the Purchaser and the Authority and such additional
legal opinions, certificates, proceedings, instruments and other documents
listed in the closing agenda as Counsel to the Purchaser, Bond Counsel or
Counsel to the Authority may reasonably request to evidence compliance by the
Authority with legal requirements, the truth and accuracy, as of the time of
the Closing, of the respective representations and warranties of the
Authority in this Purchase Agreement, the Indenture and the other Authority
Documents and the due performance or satisfaction by the Authority at or
prior to such time of all agreements then to be performed and all conditions
then to be satisfied by the Authority.
If the Authority shall be unable to satisfy the conditions to the
obligations of the Purchaser contained in this Purchase Agreement, or if the
obligations of the Purchaser to purchase and accept delivery of the Bonds
shall be terminated for any reason permitted by ties Purchase Agreement, this
Purchase Agreement shall terminate and neither the Purchaser nor the
Authority shall be under any further obligations hereunder; except that the
obligations of the Authority to pay expenses, as provided in Section 12
hereof and the obligations of the Authority contained in Section 11 hereof
shall continue in full force and effect.
8. CONDITIONS TO THE AUTHORITY'S OBLIGATION. The obligations of the
8
Authority hereunder are subject to the performance by the Purchaser of its
obligations hereunder.
9. SURVIVAL OF REPRESENTATIONS, WARRANTIES, AGREEMENTS, AND OBLIGATIONS.
Each respective representation, warranty and agreement of any of the Authority
or the Purchaser shall remain operative and in full force and effect, regardless
of any investigations made by or on behalf of the Purchaser or the Authority and
shall survive the Closing. The obligations of the Authority under Sections 11
and 12 hereof shall survive any termination of this Purchase Agreement pursuant
to its terms.
10. CHANGES AFFECTING THE OFFERING MEMORANDUM. At any time prior to the
Closing, the Authority agrees to supplement or amend the Offering Memorandum,
whenever requested by the Purchaser when, in the reasonable judgment of the
Purchaser, such supplement or amendment is required. No amendment or supplement
to the Offering Memorandum shall be made without the approval of the Purchaser.
After the Closing, and so long as the Purchaser or any participating dealer
shall be offering Bonds which constitute the whole or a part of their unsold
participation, but for a period no longer than 6 months, if any event shall
occur as a result of which it is necessary to amend or supplement the Offering
Memorandum in order to make the statements therein, in light of the
circumstances under which they are made, not misleading, the Purchaser will so
advise the Authority. In any such case, the Authority shall cooperate as
directed by the Purchaser in the preparing and furnishing to the Purchaser
either amendments to the Offering Memorandum or supplemental information so that
the statements in the Offering Memorandum, as so amended or supplemented, will
not, in light of the circumstances under which such statements were made, be
misleading. The cost of providing such amendment or supplement prior to Closing
and during the 6 month period following the Closing shall be paid by the
Authority.
11. INDEMNIFICATION.
The Authority agrees to indemnify, defend and hold harmless the Purchaser,
each director, trustee, member, officer or employee of the Purchaser and each
person, if any, who has the power, directly or indirectly, to direct or cause
the direction of the management and policies of the Purchaser through the
ownership of voting securities, by contract or otherwise (collectively, the
"Indemnified Parties"), against any and all losses, claims, damages,
liabilities, joint or several, or any expenses, including attorneys' fees and
expenses, related thereto arising out of or in connection with or caused by an
untrue statement or misleading statement or alleged untrue statement or alleged
misleading statement of a material fact contained in the Offering Memorandum
(except with regard to the Excluded Information) or caused by an omission or
alleged omission from the Offering Memorandum (except with regard to the
Excluded Information) of any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, but only insofar as such losses, claims, damages, liabilities or
expenses arise out of or in connection with or are caused by such untrue or
misleading statement or omission or alleged untrue or misleading statement or
omission in the information contained in the Offering Memorandum, except for the
material under the
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caption "UNDERWRITING."
In case a claim shall be made or any action shall be brought against one or
more of the Indemnified Parties based upon the Offering Memorandum and in
respect of which indemnity is sought against the Authority pursuant to the
preceding paragraph, the Indemnified Parties seeking indemnity shall promptly
notify the Authority, in writing, and the Authority shall promptly assume the
defense thereof, including the employment of counsel chosen by the Authority and
approved by the Purchaser (provided, that such approval by the Purchaser shall
not be unreasonably withheld), the payment of all expenses and the right to
negotiate and consent to settlement. If any Indemnified Party is advised in a
written opinion of counsel that there may be legal defenses available to such
Indemnified Party which are adverse to or in conflict with those available to
the Authority or that the defense of such Indemnified Party should be handled by
separate counsel, the Authority shall not have the right to assume the defense
of such Indemnified Party, but the Authority shall be responsible for the fees
and expenses of counsel retained by such Indemnified Party in assuming its own
defense, and provided also that if the Authority shall have failed to assume the
defense of such action or to retain counsel reasonably satisfactory to the
Purchaser within a reasonable time after notice of the commencement of such
action, the fees and expenses of counsel retained by the Indemnified Party shall
be paid by the Authority. Notwithstanding, and in addition to, any of the
foregoing, any one or more of the Indemnified Parties shall have the right to
employ separate counsel with respect to any such claim or in any such action and
to participate in the defense thereof, but the fees and expenses of such counsel
shall be paid by such Indemnified Party or Parties unless the employment of such
counsel has been specifically authorized by the Authority. The Authority shall
not be liable for any settlement of any such action effected without its
consent, but if settled with the consent of the Authority or if there is a final
judgment for the plaintiff in any such action with or without consent, the
Authority agrees to indemnify and hold harmless the Indemnified Parties from and
against any loss or liability by reason of such settlement or judgment. The
covenants and agreements of the Authority and the Purchaser herein contained
shall survive the delivery of the Bonds.
12. EXPENSES. The Authority shall pay, or direct the Trustee under the
Indenture to pay, from the proceeds of the Bonds, any expenses incident to the
performance of its obligations hereunder including but not limited to (i) the
cost of the preparation and printing of the Indenture and the Authority
Documents, together with a reasonable number of copies thereof-, (ii) the cost
of the preparation and printing of the Offering Memorandum, together with a
reasonable number of copies thereof, (iii) the cost of the preparation and
printing, if any, of the definitive Bonds; (iv) the cost of the Credit
Enhancement; and (v) the fees and disbursements of Bond Counsel, Special Tax
Counsel, the feasibility consultant, the appraiser, the Trustee and of any other
experts or consultants retained by the Authority.
The fees and expenses of Purchaser's counsel, Wolf, Block, Xxxxxx &
SolisCohen, including those fees and expenses relating to qualification of the
Bonds pursuant to state securities laws and regulations, shall be paid by the
Purchaser. The Purchaser's out-of-pocket expenses shall
10
also be paid by the Purchaser. The Purchaser shall also pay all advertising
expenses in connection with the offering of the Bonds. All other expenses
incurred in connection with the issuance of the Bonds, including the fees and
expenses of all other counsel, shall be paid by the Authority. The
agreements contained in this Section 12 shall survive any termination of this
Purchase Agreement and the delivery of the Bonds.
13. MISCELLANEOUS.
(a) Any notice or other communication to be given to the Authority
under this Purchase Agreement shall be deemed given when delivered in person
to its address set forth above, or when mailed by first class mail, postage
prepaid, and addressed to the Authority at the address set forth above, and
any notice or other communication to be given to the Purchaser under this
Purchase Agreement shall be deemed given when delivered in person to the
address set forth below, or when mailed by first class mail, postage prepaid,
and addressed as follows: Xxxxxx Brothers Inc., 0000 Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxxxxx, XX 00000.
(b) This Purchase Agreement is made solely for the benefit of the
Authority and the Purchaser (including the successors or assigns of the
Purchaser and including the respective directors, trustees, members,
officers, employees and controlling persons thereof as provided in Section 11
hereof) and no other person, including any purchaser of the Bonds, shall
acquire or have any rights hereunder or by virtue hereof.
(c) This Purchase Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado, without regard to
principles of choice of laws.
(d) The captions in this Purchase Agreement are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof
(e) This Purchase Agreement may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
(f) This Purchase Agreement shall become effective upon your acceptance
hereof
Very truly yours,
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SCHEDULE I
1. Indenture of Trust, dated as of March 1, 1996, between the Issuer and the
Bond Trustee.
2. Bond Indenture Promissory Note, dated as of March 1, 1996, from the Issuer
to the Bond Trustee.
3. Bond Purchase Agreement, dated March 26, 1996, between the Issuer and
Underwriter.
4. Operating Agreement, dated as of March 1, 1996, between District No. 5
and the Issuer.
5. Assignment of Operating Agreement and Consent of Issuer, Credit Enhancement
Provider, Bond Trustee and District No. 5, dated as of March 1, 1996.
6. Reimbursement Agreement, dated as of March 1, 1996, between the Issuer
and Credit Enhancement Provider.
7. Reimbursement Agreement Promissory Note, dated as of March 1, 1996, from
the Issuer to the Credit Enhancement Provider.
8. Collateralized Credit Enhancement Agreement, dated as of March 1, 1996,
between Credit Enhancement Provider and Bond Trustee.
9. Bond Pledge and Security Agreement, dated as of March 1, 1996, between
Credit Enhancement Provider, Bond Trustee and RENHC Trustee.
10. Agreement for Purchase and Sale of Real Property, dated as of March 1,
1996, between Xxxxxxx County Development Corporation and the Issuer.
11. Intergovernmental Agreement, dated as of March 1, 1996, among District
Nos. 1 through 5.
12. Assignment of Intergovernmental Agreement, dated as of March 1, 1996, from
District No. 5 to the Credit Enhancement Provider and to the Trustee with
Consent of District Nos. 1 through 4.
13. Preliminary Limited Offering Memorandum, dated February 19, 1996 and
supplement thereto dated February 26, 1996.
14. Limited Offering Memorandum, dated March 26, 1996.
15. Continuing Disclosure Agreement, dated as of March 1, 1996, among the
Issuer, the
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Districts, the Credit Enhancement Provider and the Trustee.
16. Warranty Deed from Xxxxxxx County Development Corporation to Issuer.
17. Deed of Trust, Security Agreement, Financing Statement and Assignment of
Rents and Leases, dated as of March 1, 1996, from the Issuer for the
benefit of the Bond Trustee and the Credit Enhancement Provider.
18. UCC-1 Financing Statements (naming the Issuer as Debtor and the Bond
Trustee as Secured Party).
19. Registration Rights Agreement, dated as of March 1, 1996, among the Issuer,
the Credit Enhancement Provider and the Underwriter.
20. Development Agreement, dated as of March 1, 1996 between Xxxxxxx County
Development Corporation and the Issuer.
21. Warranty Deed from Xxxxxxx County Development Corporation to DCDC H, Inc.
22. Warranty Deed from Xxxxxxx County Development Corporation to Xxxxxxxx X.
Xxxxx.
23. Warranty Deed from Xxxxxxxx X. Xxxxx to DCDC II, Inc.
24. Assignment of Development Agreement from the Issuer to the Trustee.
25. Recreational Facilities Agreement, dated as of March 1, 1996 between
District No. 5 and the Issuer.
26. Assignment of Recreational Facilities Agreement to the Bond Trustee.
27. Articles of Incorporation of the Issuer, certified by the Colorado
Secretary of State and the Issuer's Secretary.
28. Certificate of Good Standing of the Issuer, certified as of a recent date
by the Colorado Secretary of State.
29. Certified Copy of Bylaws of the Issuer.
30. Issuer's Certificate.
31. Tax Certificate.
32. Title Commitment.
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33. Title Policy.
34. Specimen Bond.
35. Issuer's Bond Resolution.
36. IRS Form 8038-G.
37. Phase 1 Survey.
38. Resolution of District No. 5 approving Creation of Issuer, Issuance of
Bonds and authorization of necessary documents.
39. Resolution of District No. 5 approving Recreational Facilities Agreement.
40. Certificate of District No. 5 Officers.
41. Resolution of District No. 1 approving necessary documents.
42. Resolution of District No. 1 approving Recreational Facilities Agreement.
43. Certificate of District No. 1 Officers.
44. Resolution of District No. 2 approving necessary documents.
45. Resolution of District No. 2 approving Recreational Facilities Agreement.
46. Certificate of District No. 2 Officers.
47. Resolution of District No. 3 approving necessary documents.
48. Resolution of District No. 3 approving Recreational Facilities Agreement.
49. Certificate of District No. 3 Officers.
50. Resolution of District No. 4 approving necessary documents.
51. Resolution of District No. 4 approving Recreational Facilities Agreement.
52. Certificate of District No. 4 Officers.
53. Feasibility Study.
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54. Appraisal.
55. Property Survey.
56. Request and Authorization of Delivery.
57. Consent of Appraiser.
58. Consent of Feasibility Consultant.
59. Rating Letter of Standard & Poor's.
60. DTC Blanket Issuer Letter of Representation.
61. Notice of Claim for Exemption filed with Colorado Securities Commission.
62. Notice of Special District Authorization or Issuance of General Obligation
Indebtedness for District Nos. 1 through 5 filed with County Clerk and
State Division of Local Government.
63. Blue Sky Survey.
64. Certificate of Credit Enhancement Provider as to the Collateral.
65. Closing Receipt.
66. Opinion of Bond Counsel (including Colorado state income tax exemption).
67. Supplemental Opinion of Bond Counsel.
68. Opinion of Special Tax Counsel.
69. Supplemental Opinion of Special Tax Counsel.
70. Opinion of Counsel to Districts.
71. Opinion of Underwriter's Counsel.
72. Preference Opinion of Underwriter's Counsel.
73. Opinion of Counsel to Credit Enhancement Provider.
74. Opinion of Counsel to Trustee.
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75. Certificate and Receipt of Bond Trustee.
76. Certificate of RENEC Trustee.
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APPENDIX A
THE BONDS
1. Principal Amount: $66,975,000
2. Dated Date: March 1, 1996
3. Maturity Schedule:
Maturity Date Coupon Reoffering
(December 1) Par Amount Rate Yield
------------ ---------- ---- -----
1999 $1,980,000 5.75% 4.75%
2000 2,095,000 5.75 4.95
2001 2,215,000 5.75 5.15
2002 2,340,000 5.75 5.30
2003 2,475,000 5.90 5.40
2004 2,620,000 6.00 5.50
2005 2,780,000 6.10 5.60
2006 2,950,000 5.70 5.70
2007 3,115,000 6.30 5.80
2008 3,310,000 6.40 5.90
2009 3,525,000 6.50 6.00
$7,750,000 6.375% Term Bonds due December 1, 2011 at 6.15%
$29,820,000 6.25% Term Bonds due December 1, 2017 at 6.35%
4. Redemption Provisions:
MANDATORY SINKING FUND REDEMPTION. The Bonds maturing December 1, 2011 and
December 1, 2017 shall be subject to mandatory sinking fund redemption at a
redemption price of 100% of the principal amount thereof, plus accrued interest
to the date fixed for redemption, on December I of each of the years and in the
principal amounts set forth below:
Bonds Maturing, December 1, 2011 Bonds Maturing December 1, 2017
-------------------------------- -------------------------------
Year Amount Year Amount
2010 $3,755,000 2012 $4,250,000
2011* 3,995,000 2013 4,515,000
2014 4,795,000
2015 5,095,000
2016 5,415,000
2017* 5,750,000
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-----------------
* Stated Maturity
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The Bonds to be redeemed will be selected by the Trustee by lot.
EXTRAORDINARY MANDATORY REDEMPTION. The Bonds are subject to extraordinary
mandatory redemption in whole at a redemption price of 100% of the principal
amount thereof plus accrued interest to the date fixed for redemption from
proceeds of prepayment of the Collateral.
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