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HomeMy WebLinkAboutRES 84-194 RESOLUTION N0. �I- Z 2 RESOLUTION OF THE CITY COUNCIL APPROVING THE ISSUANCE OF BONDS BY THE BEAUMONT INDUSTRIAL DEVELOPMENT CORPORATION TO FINANCE A PROJECT FOR PARIGI & MESSINA WHEREAS, by Resolution, the City Council (the "Governing Body") of the City of Beaumont, Texas (the "Unit") , authorized and approved the creation of the Beaumont Industrial Development Corporation (the "Issuer") as a non-profit industrial development corporation under the provisions of the Development Corporation Act of 1979, Article 5190.6, Vernon's Annotated Texas Civil Statutes, as amended (the "Act"); and WHEREAS, by Resolution of the Issuer adopted on June 4, 1984 (the "Bond Resolution"), the Issuer authorized and approved the sale and delivery of its revenue bonds, styled "Beaumont Industrial Development Corporation Industrial Development Revenue Bonds, Series 1984 (St. Charles Plaza Project)" (the "Series 1984 Bonds") , to finance the cost of certain facilities , (the "Project") as described within the Bond Resolution and the exhibits attached thereto, and a copy of said Bond Resolution is attached hereto and fully incorporated herein by reference; and WHEREAS, the Governing Body hereby finds and determines that the issuance of the Series 1984 Bonds to finance the Project will accomplish the specific purposes for which the Issuer was created and is in furtherance of the public purposes of the Act; and WHEREAS, in accordance with the terms of the Bond Resolution of the Issuer, a copy of which is attached hereto and fully incorporated herein by reference, the Issuer now desires to sell and provide, upon satisfaction of all conditions contained therein, for the issuance and sale of the Series 1984 Bonds; and WHEREAS, the Act provides that the Governing Body must, by written Resolution adopted no more than sixty (60) days prior to the date of the delivery of the Bonds, specifically approve the Bond Resolution of the Issuer providing for the issuance of the Series 1984 Bonds; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT, TEXAS, THAT: Section 1. The Bond Resolution of the Issuer providing for the sale and issuance of the Bonds, substantially in the form attached hereto is hereby approved; provided, however, notwithstanding any provision of the Bond Resolution to the contrary, Bonds in an amount not exceeding $1,500,000 only are approved hereby. Section 2. The Governing Body hereby finds and determines as follows: (a) That the issuance of the Bonds to finance the Project will accomplish the specific public purposes for which the Issuer was created; and (b) That a public hearing with respect to a certain written Resolution pertaining to the approval by the Governing Body of the issuance by the Beaumont Industrial Development Corporation of its certain Bonds was held following publication of notice in compliance with Section 103(k) of the Code; and (c) That after posting notice and holding a public hearing in accordance with Section 103(k) of the Code, the Project is hereby approved; and (d) That the Project will have an impact on increasing employment within the boundaries of the Unit and is in furtherance of the public purposes of the Act; and (e) That the Project will significantly contribute to the fulfillment of the overall redevelopment objectives of the Unit for the Eligible Blighted Area; and (f) That the Project conforms to the Project Approval Standards specified in Rule .002(b) (8) and (b) (9) (B) of the Texas Economic Development Commission's Rules for Issuing Industrial Development Revenue Bonds. Section 3. The Governing Body has considered evidence of the posting of notice of this meeting and officially finds, determines, recites and declares that a sufficient written notice of the date, hour and place of this meeting, and of the subject of this Resolution, was posted on a bulletin board at a place convenient to the public in the City Hall of the Unit for at least 72 hours preceding the convening of such meeting; such place of posting was readily accessible to the general public at all times from such time of posting until the convening of such meeting; and such meeting was open to the public as required by law at all times during which the Resolution and the subject matter thereof were discussed, considered and formally acted upon, all as required by the Open Meetings Law, Article 6252-17, Vernon's Annotated Texas Civil Statutes, as amended. Section 4. A copy of the caption of this Resolution shall be spread upon the minutes of the Governing Body. ,,�'ev �� PASSED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT this the day of 1984. N' )JA -Mayor- RESOLUTION AUTHORIZING BEAUMONT INDUSTRIAL DEVELOPMENT CORPORATION INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1984 (ST. CHARLES PLAZA PROJECT); A LOAN AGREEMENT; AN INDENTURE OF TRUST; AND OTHER MATTERS IN CONNECTION THEREWITH Pursuant to the Development Corporation Act of 1979, Article 5190.6, Vernon's Annotated Texas Civil Statutes, as amended (the "Act"), the Beaumont Industrial Development Corporation (the "Issuer") , on behalf of the City of Beaumont, Texas (the "Unit"), is empowered to finance the cost of projects to promote and develop commercial and other related enterprises in an Eligible Blighted Area, as defined in the Act, to promote and encourage employment and the public welfare by the issuance of obligations of the Issuer, which projects will be inside the boundaries of the Unit and within the area designated as an Eligible Blighted Area; WHEREAS, Parigi & Messina (the "User"), a Texas general partnership, acting by and through Sam C. Parigi, Jr. , Managing Agent, has requested the Issuer to finance the cost of acquiring, constructing, reconstructing, improving or expanding, as the case may be, a certain commercial project (the "Project"); and WHEREAS, on December 20, 1983, the Issuer adopted a certain "Resolution Prescribing the Form and Substance of an Agreement to Issue Bonds; Authorizing the Execution of Such Agreement; and Containing Other Provisions Relating to the Subject Bonds" (the "Inducement Resolution"), a copy of which is attached hereto and incorporated herein by reference; and WHEREAS, there have been presented to the Issuer proposed forms of each of the following: 1. Loan Agreement dated as of June 1, 1984 (the "Agreement"), between the Issuer and the User, including a promissory note from the User to the Issuer in the principal amount of the Bonds (the "Note"); 2. Indenture of Trust dated as of June 1, 1984 (the "Indenture") , by and between the Issuer and Allied Merchants Bank, Trustee (the "Trustee"); 3. Deed of Trust, Security Agreement, Assignment of Rents and Financing Statement dated as of June 1, 1984 (the "Deed of Trust"), by and between the User and the Mortgage Trustee designated therein; and 4. Guarantee Agreement dated as of June 1, 1984 (the "Guarantee Agreement"), executed by Frank G. Messina, Frank L. Messina, Joseph R. Messina, Jude T. Messina, Vincent M. Messina, Thomas L. Messina, James M. Messina- and Sam C. Parigi, Jr., as Guarantors (the "Guarantors") of all of the obligations of the User pertaining to the Note, the Indenture, the Deed of Trust and the Bonds; NOW, THEREFORE, be it resolved by the Board of Directors of the Beaumont Industrial Development Corporation (the "Board") that: Section 1. Based solely upon the representations made to the Board and to the Texas Economic Development Commission by the User, it appears and the Board hereby finds that: A. The Project is hereby approved and is required or suitable for the promotion of commercial development and expansion; and B. The Project will have an impact on increasing employment within the boundaries of the Unit and is in furtherance of the public purposes of the Act. Section 2. The Board hereby approves the Agreement in the form and substance presented to the Board and the President or any Vice President of the Issuer is hereby authorized and directed, for and on behalf of the Issuer, to take, sign and otherwise execute the Agreement, and the Secretary or any assistant secretary of the Issuer is hereby authorized and directed on behalf of the Issuer to attest the Agreement, and such officers are hereby authorized to deliver the Agreement. Upon execution by the parties thereto and delivery thereof, the Agreement shall be binding upon the Issuer in accordance with the terms and provisions thereof. Section 3. The Bonds in the aggregate principal amount of $1,500,000 are hereby authorized to be issued by the Issuer for the purpose of paying the costs of acquiring, constructing, reconstructing, improving or expanding, as the case may be, the Project. The Board hereby approves the Indenture, with the Form -of Bond attached thereto, and substantially in the form and substance presented to the Board, and the President or any Vice President of the Issuer is authorized and directed on behalf of the Issuer to date, sign and otherwise execute the Indenture, and the Secretary or any assistant secretary is hereby authorized to attest the Indenture, and such officers are hereby authorized to deliver the Indenture. The details of the Bond shall be as set forth in the Indenture. Section 4. The President and Secretary are hereby each authorized and directed to execute the Bonds, or have their facsimile signatures placed upon the Bonds, and each is hereby authorized and directed to deliver the Bonds, and the seal of the Issuer is hereby authorized and directed to be affixed or placed in facsimile on the Bonds. 2 Section 5. The initial sale of the Bonds to Allied Bank Beaumont, N.A. (the "Purchaser") , at a price equal to one hundred (100%) percent of the principal amount of $1,500,000 is hereby authorized and approved. Section 6. Allied Merchants Bank, Port Arthur, Texas, is hereby appointed as Trustee under the Indenture, thereby serving as Registrar and Paying Agent under the terms of the Indenture. Section 7. The President or any Vice President or the Secretary is hereby authorized to execute and deliver to the Trustee the written order of the Issuer of the authentication and delivery of the Bonds by the Trustee in accordance with the Indenture. Section 8. All actions heretofore taken by the Board and officers of the Issuer not inconsistent with the provisions of this Resolution, directed toward the financing of the Project and the issuance of the Bonds, be and the same hereby are ratified, approved and confirmed. The President or any Vice President of the Issuer is hereby authorized to approve such changes in the documents authorized by this Resolution and which shall be deemed necessary and appropriate and not contrary to the general tenor thereof. Section 9. After any of the Bonds are issued, this Resolution (together with any subsequent resolutions pertaining to the issuance of the Bonds) shall be and remain irrepealable until the Bonds and all interest thereon shall have been fully paid or provisions for payment made pursuant to the Indenture. Section 10. If any section, paragraph, clause or provision of this Resolution or the Inducement Resolution, attached hereto and incorporated herein by reference, shall be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this Resolution. PASSED AND APPROVED this the 4th day of June, 1984. Directors of Beaumont Industrial Development Corporation 3 RESOLUTION PRESCRIBING THE FORM AND SUBSTANCE OF AN AGREEMENT TO ISSUE BONDS; AUTHORIZING THE EXECUTION OF SUCH AGREEMENT; AND CONTAINING OTHER PROVISIONS RELATING TO THE SUBJECT BONDS WHEREAS, BEAUMONT INDUSTRIAL DEVELOPMENT CORPORATION (the "Issuer") is authorized by the Development Corporation Act of 1979, Article 5190.6, Vernon's Annotated Texas Civil Statutes (the "Act") to issue revenue bonds for the purpose of financing the costs of projects consisting of land, buildings, equipment, facilities and improvements (one or more) found by the Board of Directors (the "Board") of the Issuer to be required or suitable for the promotion of commercial development and expansion and for use by commercial enterprises and in the furtherance of the public purposes of the Act, and which are located within an "Eligible Blighted Area," within the meaning of the Act; and WHEREAS, the Issuer now desires to authorize, issue and sell its tax exempt industrial development revenue bonds, to the extent authorized by law, to provide funds to defray all or part of the cost of acquiring and constructing a certain commercial facility, to be constructed by or to be leased or sold to PARIGI & MESSINA (the "User") , a Texas general partnership, but the Issuer anticipates that the construction of such facilities may commence prior to the final sale and delivery of such bonds; and WHEREAS, the User and the Issuer desire that the Issuer adopt a bond resolution with respect to the bonds or take some other similar official action toward the issuance of such bonds prior to the commencement of construction or acquisition of such facilities; WHEREAS, the City of Beaumont, Texas (the "Unit") , has authorized and approved creation of the Issuer to act on its behalf to further certain public purposes of the Unit and has approved or will approve the attached Agreement to Issue Bonds between the Issuer and the User; WHEREAS, in order to finance the project, the Issuer proposes to issue its bonds styled, "Beaumont Industrial Development Corporation Industrial Development Revenue Bonds, Series 1984 (Parigi & Messina Project) ," (the "Bonds") ; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF BEAUMONT INDUSTRIAL DEVELOPMENT CORPORATION, THAT: Section 1 . The Issuer hereby authorizes and agrees that it will issue and sell the Bonds from time to time, in one or more series, pursuant to the provisions of Texas law in a principal amount sufficient to pay all or part of the cost of acquiring and constructing the project (the "Project") described in Exhibit A to the Agreement to Issue Bonds, attached hereto and fully incorporated into this Resolution by reference as though set forth verbatim herein, together with all costs of authorization, sale and issuance of the Bonds. Section 2. The Bonds in an aggregate principal amount not to exceed $2,000,000.00 are authorized to be issued, pursuant to this Resolution and the Agreement to Issue Bonds, attached hereto, for the purpose of paying the costs of acquiring, constructing, reconstructing, improving, expanding, equipping or furnishing the Project. Section 3. The Issuer shall enter into a loan agreement with the User providing for the financing of all or part of the cost of the Project, as more fully described in the Agreement to Issue Bonds. The Bonds shall be issued and funded pursuant to a trust indenture to be prepared by bond counsel, in the manner as set forth in the attached Agreement to Issue Bonds. Section 4. The Board hereby finds, determines and declares that (i) the Project is required and suitable for promotion of commercial development and expansion, the promotion of employment and for use by commercial enterprises within an Eligible Blighted Area, as defined within the meaning of the Act, (ii) the User has the business experience, financial resources and responsibility to provide reasonable assurance that the Bonds and the interest thereon to be paid from, or by reason of, payments made by the User under the lease, sale or loan agreement will be paid as the same become due, and (iii) the Project is in furtherance of the public purpose of the promotion and development of new and expanded commercial enterprises within an Eligible Blighted Area and to promote and encourage employment and the public welfare. Section 5. The Agreement to Issue Bonds by and between the Issuer and the User, in substance and in form substantially as shown in the attachment hereto, is hereby approved, and the President and Secretary of the Issuer are hereby authorized to execute and attest such Agreement for and on behalf of the Issuer. Section 6. This Resolution, together with the Agreement to Issue Bonds, shall be deemed and construed as a resolution authorizing the issuance of the aforesaid Bonds or some other similar official action toward the issuance of the Bonds within the meaning of 26 C.F.R., Section 1.103-8(a)(5) . Section 7. The initial sale and delivery of the Bonds by the Issuer to Allied Bank Beaumont, N.A. (the "Purchaser") , at the par value thereof, are hereby authorized and approved. Section 8. The President or any Vice President of the Issuer is hereby specifically authorized: (i) to approve, execute, change or amend the loan agreement, trust indenture, deed of trust and security agreement, collateral assignment and security agreement, bond form, and any and all other closing documents authorized by this Resolution or the Agreement attached hereto as shall be deemed necessary or appropriate for the issuance and delivery of the Bonds and not contrary to the general tenor hereof or thereof, and (ii) to take all ��j 2 necessary and reasonable actions, pursuant to the advice of bond counsel in conformity with the Act, to effectuate the issuance of the Bonds and to take all action necessary or desirable in conformity with the Act to finance the Project and for carrying out, giving effect to, and consummating the transactions contemplated by the Bonds, this Resolution, the Agreement to Issue Bonds, attached hereto, and the documents referenced herein and therein, including, without limitation, the execution and delivery of all closing documents, referred to hereinabove, in connection with the issuance of the Bonds. Section 9. Allied Merchants Bank is hereby appointed as Trustee under the trust indenture, thereby serving as Registrar and Paying Agent under said trust indenture. Section 10. After any of the Bonds are issued, this Resolution (together with any subsequent resolutions pertaining to the issuance of the Bonds) shall be and remain irrepealable until the Bonds and all interest thereon shall have been fully paid or provisions for payment made pursuant to the indenture. Section 11. If any section, paragraph, clause or provision of this Resolution or the Agreement to Issue Bonds, attached hereto and incorporated herein by reference, shall be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this Resolution. PASSED AND APPROVED this the day of December, 1983. Directors of Beaumont Industrial Development Corporation 3 AGREEMENT TO ISSUE BONDS THIS AGREEMENT TO ISSUE BONDS, entered into as of the day of December, 1983, by and between BEAUMONT INDUSTRIAL DEVELOPMENT CORPORATION (the "Issuer") , created pursuant to the authority of the Development Corporation Act of 1979, Article 5190.6, Vernon's Annotated Texas Civil Statutes (the "Act") , and PARIGI & MESSINA, a Texas general partnership (the "User") , for the purpose of carrying out the public purposes set forth in the Act, including the promotion and development of commercial enterprises within an Eligible Blighted Area, as defined within the meaning of the Act, and to promote and encourage employment and the public welfare therein; WITNESSETH: WHEREAS, the Mayor and the City Council of the City of Beaumont, Texas (the "Governing Body" and the "Unit," respectively) , have authorized and approved the creation of the Issuer to act on behalf of the Unit within the Eligible Blighted Area, located within the boundaries of the Unit, for the public purpose of furthering on behalf of the Unit the promotion of commercial development and expansion of the Eligible Blighted Area and to promote and encourage employment and the public welfare; and WHEREAS, the Issuer is authorized by the Act to acquire, construct, improve, maintain, equip, and furnish and lease to or sell projects consisting of land, buildings, equipment, facilities and improvements (one or more) , as defined in the Act, found by the Issuer to be required or suitable for the commercial development and expansion and for use by commercial enterprises and in the furtherance of the public purposes of the Act, and which are located within an Eligible Blighted Area, within the meaning of the Act, and the Issuer is further authorized to issue its bonds for the purpose of paying all or part of the costs of a project; and WHEREAS, the User desires to acquire and construct a facility, more particularly described in Exhibit A attached hereto, within the Unit (the "Project") , which Project is suitable for the promotion of commercial development and expansion of an Eligible Blighted Area, the promotion of employment in the Unit, and for the use by commercial enterprises; WHEREAS, pursuant to the Act, the Issuer is authorized to issue the bonds hereinafter described, which bonds shall never constitute an indebtedness or pledge of the faith and credit of the State of Texas (the "State") , of the Unit, or of any other political corporation, subdivision or agency of the State within the meaning of any State constitutional or statutory provision, shall never be paid in whole or in part out of any funds raised or to be raised by taxation or out of any other funds of the Unit, and shall never be paid in whole or in part out of any funds of the Issuer, except those derived from or in connection with the sale or lease of the Project or the loan of funds to finance the Project; and a WHEREAS, to promote and encourage employment and the public welfare, the Issuer is agreeable to issuing, at the request of the User, one or more series of the Issuer's industrial development revenue bonds (the "Bonds") for the purpose of paying all or part of the cost of acquiring and constructing the Project, or for the purpose of loaning the proceeds to the User in order to provide temporary or permanent financing of all or part of the cost of acquiring and constructing the Project, and the Issuer and the User deem it desirable and proper that this Agreement to Issue Bonds constitute a formal record of such agreement and understanding in order that the User may proceed with or provide for the acquisition and construction of the Project; and WHEREAS, the User has evidenced a desire to cooperate with the Issuer in the acquisition and construction of the Project and for the Issuer to authorize and issue the Bonds in the aggregate principal amount not to exceed $2,000,000.00, to provide the funds to defray all or part of the cost of the acquisition and construction of the Project; and WHEREAS, the proceeds of the Bonds shall be loaned by the Issuer, pursuant to a loan agreement, to the User in order to provide temporary and permanent financing of all or part of the costs of the Project, and that the loan payments therefor will be sufficient to pay the principal of and any premium and interest on the Bonds; and WHEREAS, it is the desire of the Issuer that the acquisition and construction of the Project occur at the earliest possible time so as to promote and encourage employment and the publc_welfare within the Unit; and WHEREAS, it is intended that this Agreement to Issue Bonds shall constitute "some other similar official action" toward the issuance of the Bonds within the meaning of Section 1.103-8(a) (5) of the Treasury Regulations issued pursuant to Section 103(b) of the Internal Revenue Code of 1954, as amended (the "Code") ; NOW, THEREFORE, in consideration of the premises and other good and valuable consideration and of the mutual benefits, covenants and agreements herein expressed, the Issuer and the User agree as follows: 1. The User shall commence with the acquisition and construction of the Project, which Project will be in furtherance of the public purposes of the Issuer and the Unit as aforesaid, and the User will provide, or cause to be provided, at its expense, the necessary interim financing to expedite the commencement of the acquisition and construction of the Project. On or prior to the issuance of the Bonds, the User will enter into a loan agreement on an installment payment basis (the "Loan Agreement") with the Issuer under which the Issuer will make a loan to the User for the purpose of providing temporary and/or permanent financing of all or part of the costs of the Project, and the User will make installment loan payments 2 sufficient to pay the principal of and any premium and interest on such series of Bonds. The -Bonds shall never constitute an indebtedness or pledge of the faith and credit of the State, the Unit, or any other political corporation, subdivision or agency of the State within the meaning of any State constitutional or statutory provision, and the Bonds shall never be paid in whole or in part out of any funds raised or to be raised by taxation or any other funds of the Unit, and shall be payable from the funds of the Issuer derived from or in connection with the sale or lease of the Project or the loan of the proceeds of the Bonds. 2. Upon receipt of a ruling from the Internal Revenue Service (or the opinion of bond counsel acceptable to the Issuer) that interest paid on the Bonds is exempt from federal income taxation, the Issuer hereby agrees to issue, pursuant to the terms of the Act, Bonds, styled "Beaumont Industrial Development Corporation Industrial Development Revenue Bonds, Series 1984 (Parigi & Messina Project) ," in the original principal amount not to exceed $2,000,000.00, maturing in such amounts and at such times, bearing interest at the rates, payable on the dates and having such optional and mandatory redemption features and prices as are approved in writing by the User. The Corporation will deliver the Bonds to Allied Bank Beaumont, N.A. (the "Purchaser") or other purchaser designated by the User and will cooperate to the fullest extent in facilitating the issuance and delivery of the Bonds. 3. The Issuer and the User agree that the Bonds may be issued either at one time or in several series from time to time as the User shall request in writing; provided, however, that the parties agree that the Bonds will be issued in an aggregate principal amount as will not exceed the amount which is the subject of a ruling or rulings or opinion or opinions as aforesaid. A request in writing for issuance of one or more series of Bonds shall not affect the obligation hereunder of the Issuer to issue the remaining Bonds as written requests therefor are received. It is further agreed that the proceeds of the Bonds or portions thereof, whether or not- issued in a series, shall not be invested so as to have the Bonds or a portion thereof constitute arbitrage bonds within the meaning of Section 103(c) of the Code and applicable regulations promulgated pursuant thereto. 4. The payment of the principal of and any premium and interest on the Bonds shall be made solely from monies realized from the sale or lease of the Project or from monies realized from the loan of the proceeds of the Bonds to finance all or part of the costs of the Project. 5. The costs of the Project (the "Project Costs") may include any cost of acquiring, constructing, reconstructing, improving or expanding the Project. Without limiting the generality of the foregoing, the Project Costs shall specifically include the cost of the acquisition of all land, right-of-way, property rights, easements 3 and interests, the cost of all machinery and equipment, financing charges, interest prior to and during construction and for one year after completion of construction whether or not capitalized, necessary reserve funds, costs of estimates and of engineering and legal services, plans, specifications, surveys, estimates of cost and revenue, other expenses necessary or incident to determining the feasibility and practicability of acquiring, constructing, reconstructing, improving and expanding the Project, administrative expenses and such other expenses as may be necessary or incident to the acquisition, construction, reconstruction, improvement and expansion of the Project, the placing of the Project in operation and all incidental expenses, costs and charges relating to the Project not enumerated above. The parties agree, upon request, to provide or to cause to be provided to each other any data or information which may be reasonably required to verify any of the Project Costs enumerated in this paragraph. The User agrees that it will be responsible for and pay any Project Costs incurred prior to issuance of the Bonds and will pay all Project Costs which are not or cannot be paid or reimbursed from the proceeds of the Bonds. 6. The User agrees that it will at all times indemnify, defend and hold harmless the Issuer, the Board of Directors of the Issuer, the Unit, the Mayor and City Council of the City of Beaumont, Texas, and any of the officers, directors, employees, agents, servants and any other party acting for or on behalf of the Issuer or the Unit (such parties being hereinafter referred to as the "Indemnified Parties") against any and all losses, costs, damages, expenses and liabilities (collectively, the "Losses") of whatsoever nature (including, but not limited to, attorneys' fees, litigation and court costs, amounts paid in settlement and amounts paid to discharge judgments) directly or indirectly resulting from, arising out of or relating to one or more Claims (as hereinafter defined) , even if such Losses or Claims, or both, directly or indirectly result from, arise out of or relate to, or are asserted to have resulted from, arisen out of or be related to, in whole or in part, one or more negligent acts or omissions of the Indemnified Parties in connection with the issuance of the Bonds or in connection with the Project. The term "Claims," as used herein, shall mean all claims, lawsuits, causes of action and other legal actions and proceedings of whatsoever nature, including, but not limited to, claims, lawsuits, causes of action and other legal actions and proceedings involving bodily or personal injury or death of any person or damage to any property (including, but not limit to, persons employed by the Issuer, the Unit, the User or any other person and all property owned or claimed by the Issuer, the Unit, the User, any affiliate of the User or any other person) or involving damages relating to the issuance, offering, sale or delivery of the bonds brought against any Indemnified Party or to which any Indemnified Party is a party, even if groundless, false or fraudulent, that directly or indirectly result from, arise out of or relate to the issuance, offering, sale or delivery of the Bonds or the design, construction, installation, operation, use, condition, 4 occupancy, maintenance or ownership of the Project or any part thereof. The obligations of the User shall apply to all Losses or Claims, or both, that result from, arise out of or are related to any event, occurrence, condition or relationship prior to termination of this Agreement to Issue Bonds, whether such Losses or Claims, or both, are asserted prior to termination of this Agreement to Issue Bonds or thereafter. None of the Indemnified Parties shall be liable to the User for, and the User hereby releases each of them from all liability to the User for, all injuries, damages or destruction of all or any part or parts of any property owned or claimed by the User that directly or indirectly result from, arise out of or relate to the design, construction, operation, use, condition, occupancy, maintenance or ownership of the Project or any part thereof, even if such injuries, damages or destruction directly or indirectly result from, arise out of or relate to, in whole or in part, one or more negligent acts or omissions of the Indemnified Parties in connection with the issuance of the Bonds or in connection with the Project. Each Indemnified Party, as appropriate, shall reimburse the User for payments made by the User to the extent of any proceeds, net of all expenses of collection, actually received by them from any insurance with respect to the Loss sustained. Each Indemnified Party, as appropriate, shall have the duty to claim any such insurance proceeds and the Indemnified Party, as appropriate, shall assign its respective rights to such proceeds, to the extent of such required reimbursement, to the User. In case any action shall be brought, or to the knowledge of any Indemnified Party threatened, against any of them in respect of which indemnity may be sought against the User, the Indemnified Party shall promptly notify the User in writing and the User shall have the right to assume the investigation and defense thereof, including the employment of counsel approved by the Indemnified Party and the payment of all expenses. The Indemnified Party shall have the right to employ separate counsel in any such action and to participate in the investigation and defense thereof, and the fees and expenses of such counsel shall be paid by the User as and when incurred by the Indemnified Party; provided that the User shall not, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for the Indemnified Party, which firm shall be designated in writing by said Indemnified Party. The Indemnified Party, as a condition of such indemnity, shall use its best efforts to cooperate with the User in the defense of any such action or claim. The User shall not be liable for any settlement of any such action without its consent, but if any such action is settled with the consent of the User, or if there shall be entered final judgment for the plaintiff in such action, the User agrees to indemnify and hold harmless the Indemnified Party from and against any Loss by reason of such settlement or judgment. The provisions of this paragraph shall survive the expiration or termination of this Agreement to Issue Bonds. 5 _ 7. The User agrees to pay as part of the Project Costs any cost of the Issuer which is payable- under' any management agreement with the Unit or is otherwise incidental to administration of the Bonds, including but not limited to any annual charges computed at rates per annum which are agreeable to the User and are not in excess of the maximum allowed by law on the principal amount of the outstanding Bonds of each series issued pursuant to this Agreement to issue Bonds, said annual charge to be due and payable on each anniversary date of the Bonds; provided, however, that the fee payable pursuant to this Section 6 may, at the option of the User, be made in a single payment from the proceeds of each series of Bonds in an amount equal to the total of all such annual charges (computed upon the assumption that Bonds of such series will mature, unless redeemed pursuant to any mandatory sinking fund redemption requirements, on the dates and in the amounts set forth in the resolutions(s) or indenture(s) of trust authorizing issuance of the series of Bonds) discounted to present value at discount rate(s) equal to the interest rate(s) on such outstanding Bonds; provided, further, that said fee shall be in addition to all other amounts payable by the Issuer for costs incurred by the Issuer incident to administration of the Bonds pursuant to such Management Agreement. 8. If within three (3) years from the date hereof (or such later date as shall be mutually satisfactory to the Issuer and the User) the Issuer and the User shall not have agreed to mutually acceptable terms for the Bonds and the sale and delivery thereof and mutually acceptable terms and conditions of the Project Agreement, the User agrees that it will pay the Issuer for all unpaid Project Costs which the Issuer shall have incurred and this Agreement to Issue Bonds shall thereupon terminate. In the event that the User elects, prior to any such termination, not to proceed with the issuance of the Bonds for any reason, it shall so notify the Issuer in writing, and shall promptly pay to the Issuer all Project Costs incurred by the Issuer prior to such notification, and if payment is so made, the User's obligations under Paragraph 5 above shall terminate from and after the date of such notification. 9. The User may, without the consent of Issuer, transfer or assign all or any part of this Agreement to Issue Bonds, or transfer or assign any or all of its rights and delegate any or all of its duties hereunder to any third person, but no such transfer, assignment or delegation shall, without the written consent and approval of the Issuer, relieve the User of its liability for payment of Project Costs under Paragraphs 5, 7 and 8 hereof or indemnification under Paragraph 6 hereof. 10. As a condition precedent to the issuance of the Bonds, the Issuer shall receive an opinion from qualified bond counsel, approved by the Issuer, that all prerequisites to the issuance of the Bonds have been fully satisfied, including, but not limited to, the execution of all appropriate agreements, trust indentures, collateral assignments, mortgages, elections, guaranty agreements and other 6 matters which, in the opinion of bond counsel, are necessary for the Issuer to legally issue the Bonds, in conformity with the requirements of the Act and the Code. 11. This Agreement to Issue Bonds and the accompanying authorizing resolution shall be deemed and construed as a resolution authorizing the issuance of the Bonds and other similar official action of the Issuer, acting by and through its Board of Directors, toward the issuance of the Bonds as herein contemplated. IN WITNESS WHEREOF, Beaumont Industrial Development Corporation, acting pursuant to a resolution of its Board of Directors, and Parigi & Messina, a Texas general partnership, have caused this Agreement to Issue Bonds to be executed and attested by their duly authorized officers or representatives as of the date and year first above written. BEAUMONT INDUSTRIAL DEVELOPMENT ATTEST: CORPORATION By Secretary President PARIGI & MESSINA, a Texas general partnership BY: Sam C. Parigi, Jr. ITS: Managing Agent 7 EXHIBIT A DESCRIPTION OF PROJECT PROPOSED BY PARIGI 6 MESSINA TO BE FINANCED BY BEAUMONT INDUSTRIAL DEVELOPMENT CORPORATION The Project to be financed consists of the construction of a retail shopping center containing in the aggregate at least 20,000 square feet. The Project is to be located on a tract of land situated at the intersection of Phelan Boulevard and Prutzman Road, which is approximately 300 feet West of the intersection of Phelan Boulevard and Dowlen Road. The legal description of the Project is attached hereto as Exhibit A-1. The Project is generally described as follows: 1. Construction of the subject 20,000 square feet of retail shopping center, and other improvements pursuant to plans and specifications provided by an architect of the User's choice, to be approved by the Issuer and the Trustee. 2. Development of the balance of the tract into parking area, landscaping, and related amenities. 3. Necessary and adequate equipment, furnishings, and fixtures to be installed within the buildings. 4. The estimated total cost of the Project will not exceed $2,000,000. 5. It is estimated that the Project will provide for the creation of 50 to 75 new jobs within the Eligible Blighted Area. 8 °EXHIB`iT A-1 LEGAL DESCRIPTION OF REAL PROPERTY OF PROJECT Part of the C. WILLIAMS LEAGUE in Jefferson County, Texas, being Tracts Numbered 2, 39 4, 5, 6, 7, 8 & 9 described in partition deed dated November 15, 1960, recorded in Vol. 1246, Page 124, of the Deed Records of Jefferson County, Texas, each of such tracts containing .32 acres of land, being a part of that tract of land recited to contain 2.67 acres, but surveyed and ascertained to contain 2.88 acres, conveyed from T. H. Langham to Lawrence Harmon Sr. , as Trustee for the sole use and benefit of his minor children dated March 4, 1920 recorded in Vol. 195, Page 35, of the Deed Records of Jefferson County, Texas, and in the aggregate described by metes and bounds as follows: Beginning at the Northwest corner of said 2.88 acre tract, which is also the Northwest corner of Lot or Tract 9 in said partition deed, in the South line of Prutzman Road; THENCE East along the South line of Prutzman Road and the North line of said numbered tracts, a total distance of 524.2 feet which is the Northeast corner of said Lot or Tract 2 and the Northwest corner of said Lot or Tract 1; THENCE South along the dividing line between said Lots or Tracts 1 and 2, 112.2 feet to the Southeast corner of Lot or Tract 2, and the Southwest corner of Lot or Tract 1, in the North boundary Line of the now abandoned 14issouri-Pacific Railroad right of way; THENCE South 68 deg West 259.6 feet to point for corner; THENCE South 71 deg West 300 feet to the Southwest corner of this tract which is also the Southwest corner of Lot or Tract 9; THENCE North along the West line of Lot or Tract 9, which is also the West line of said 2.88 acre tract, 307 feet to the place of beginning. SAVE AND EXCEPT that portion of said land heretofore conveyed by Nichols Development Company of Beaumont, Texas, to the City of Beaumont, by a deed dated September 6, 19749 recorded in Vol. 1849, Page 236, of the Deed Records of Jefferson County, Texas, to which reference is here made for description. 9