Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to accept delivery of and pay for the Bonds on the Closing Date shall be subject, at the option of the Underwriter, to the accuracy in all material respects of the representations, warranties and agreements on the part of the District contained herein as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the officers and other officials of the District made in any certificates or other documents furnished pursuant to the provisions hereof, and to the performance by the District of its obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions: (a) At the Closing Date, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement shall be in full force and effect in the form heretofore submitted to the Underwriter, with only such changes as shall be agreed to in writing by the Underwriter, and there shall have been taken in connection with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, shall be necessary and appropriate; (b) At the Closing Date, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter; (c) Between the date hereof and the Closing Date, the market price or marketability, at the initial offering prices set forth in the Official Statement, of the Bonds shall not have been materially adversely affected, in the judgment of the Underwriter, by reason of any of the following: (1) legislation shall have been enacted by the Congress of the United States or the Legislature of the State of California or favorably reported thereto for passage by any Committee to which such legislation has been referred for consideration or be pending before any such Committee or shall have been recommended to the Congress of the United States for passage by the President of the United States or recommended to the Legislature of the State of California for passage by the Governor of the State of California, or a decision shall have been rendered by a court of the United States, including the Tax Court of the United States, or of the State of California, or a ruling or an official release shall have been made or a regulation shall have been proposed or made by the Treasury Department of the United States or the Internal Revenue Service or other federal or State of California authority having jurisdiction over tax matters, with respect to federal or State of California taxation upon revenues or other income of the District or upon interest on obligations of the general character of the Bonds, or other actions or events shall have transpired that would, in the reasonable judgment of the Underwriter, have the purpose or effect, directly or indirectly, of changing the federal or State of California tax consequences of any of the transactions contemplated in connection herewith and that in the reasonable judgment of the Underwriter, affects materially and adversely (i) the market price or marketability of the Bonds or (ii) the ability of the Underwriter to enforce contracts for the sale of the Bonds; (2) legislation shall have been enacted or introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court of competent jurisdiction or by the Tax Court of the United States, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying obligations, are not exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), that the Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), or that the issuance, offering or sale of the Bonds, including any or all underlying obligations, is or would be in violation of the federal securities laws as amended and then in effect or that suspends the use of the Official Statement or any supplement thereto or any proceeding for such purpose shall have been initiated or threatened in any such court or by any such authority; (3) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or the engagement in major hostilities by the United States or the occurrence of any other national emergency or calamity relating to the effective operation of the government of or the financial community in the United States; (4) the declaration of a general banking moratorium by federal, New York or California authorities, or the general suspension of trading on any national securities exchange; (5) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, Underwriter; (6) the withdrawal or downgrading of any rating of the Bonds by a national rating agency or notice having been given by a national rating agency of any intended or potential downgrading or other review or possible change in such rating that does not indicate the direction of such possible change; or (7) any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Official Statement, or has the effect that the Official Statement contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (8) an order, ruling, regulation (final, temporary or proposed), press release, statement or other form of notice by or on behalf of the Treasury Department of the United States, the Internal Revenue Service or other governmental agency relating to Circular 230 (31 C.F.R. part 10) is issued, made or proposed, that, in the judgment of the Underwriter, affects materially and adversely the market for the Bonds or the market price generally of obligations of the general character of the Bonds. (d) At or prior to the Closing Date, the Underwriter shall have received the following documents, in each case satisfactory in form and substance to the Underwriter: (1) Copies of the Indenture, the Disclosure Certificate and the Escrow Agreement, duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to in writing by the Underwriter; (2) An approving opinion, dated the Closing Date and addressed to the District, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, in substantially the form attached as Appendix D to the Official Statement, together with a letter from said Bond Counsel authorizing the Underwriter to rely on said opinion, and a supplemental opinion in form acceptable to the Underwriter and the District, dated the Closing Date and addressed to the Underwriter and the District, to the effect that: (i) the Bond Purchase Agreement has been duly executed and delivered by the District and, assuming due authorization, execution and delivery by the Underwriter, is a valid and binding obligation of the District, subject to laws relating to bankruptcy, insolvency, reorganization arrangement, fraudulent conveyance, moratorium or other laws affecting creditors’ rights generally, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against a local health care district in the State of California; (ii) the statements contained in the Official Statement in the sections thereof entitled: “THE BONDS,” “SECURITY FOR THE BONDS,” “TAX MATTERS,” “EXHIBIT C—SUMMARY OF PRINCIPAL LEGAL DOCUMENTS,” and “EXHIBIT D—FORM OF FINAL OPINION OF BOND COUNSEL,” insofar as such statements expressly summarize certain provisions of the Bonds, the Indenture, the Disclosure Certificate, the Escrow Agreement and Bond Counsel’s opinion concerning certain tax matters are accurate in all material respects; and (iii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification as an indenture pursuant to the Trust Indenture Act of 1939, as amended. (3) An opinion dated the Closing Date and addressed to the District and the Underwriter, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the District, in substantially the form attached hereto as Exhibit C. (4) A certificate of the Executive Director of the District, or such other officer as is acceptable to the Underwriter, dated the Closing Date, to the effect that the representations and agreements of the District contained herein are true and correct in all material respects as of the Closing Date, and: (i) no litigation is pending or, to the knowledge of such officer, threatened (a) to restrain or enjoin the issuance or delivery of any of the Bonds or the collection of Revenues pledged under the Indenture, (b) in any way contesting or affecting the authority for the issuance of the Bonds or the validity of the Bonds, the Indenture, the Disclosure Certificate or this Bond Purchase Agreement, or (c) in any way contesting the existence or powers of the District; (ii) no event affecting the District has occurred since the date of the Official Statement which would cause as of the Closing Date any statement or information contained in the Official Statement to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements and information therein, in the light of the circumstances under which they were made, not misleading; (iii) since June 30, 2021, no material and adverse change has occurred in the financial position or results of operations of the District other than as is set forth in the Official Statement; (iv) the District has not, since June 30, 2021, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Official Statement; and (v) no proceedings are pending or threatened (1) in any way contesting or affecting the District’s status as a local health care district or (2) to subject any income of the District to federal income taxation; (5) Satisfactory evidence that the Bonds have been rated “ ” or better by ▇▇▇▇▇’▇ Investors Service; (6) An opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Salmon, P.L.C., as disclosure counsel (“Disclosure Counsel”), addressed to the District and the Underwriter, to the effect that the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and to the effect that, based upon its participation in the preparation of the Official Statement as Disclosure Counsel and without having undertaken to determine independently the fairness, accuracy or completeness of the statements contained in the Official Statement, such counsel has no reason to believe that, as of the date of the Official Statement or as of the date of Closing, the Official Statement (excluding therefrom the reports, financial and statistical data and forecasts therein, the information with respect to DTC and the book-entry system and the information included in Appendices thereto, as to which no opinion need be expressed) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (7) A certified copy of the Resolution authorizing the execution and delivery of the Bonds, the Indenture, the Disclosure Certificate, the Bond Purchase Agreement, the Escrow Agreement and the Official Statement and ratifying the distribution of the Preliminary Official Statement and authorizing distribution of the Official Statement; (8) An opinion of counsel to the Trustee in form and substance satisfactory to the Underwriter and Bond Counsel; (9) A certificate of the Trustee, dated the Closing Date and signed by an authorized Underwriter of the Trustee, to the effect that: (i) The Trustee is a duly organized and existing national banking association in good standing under the laws of the United States of America and has all necessary power and authority to enter into and perform its duties under the Indenture; (ii) The Trustee is duly authorized to enter into the Indenture and has duly executed and delivered the Indenture; (iii) The Bonds have been duly authenticated and delivered by the Trustee; (iv) The execution and delivery of the Indenture and the authentication and delivery of the Bonds and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Trustee’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Trustee is subject or by which it is or may be bound; provided, however, the Trustee need not make any representations and warranties with respect to compliance with any federal and state securities laws; and (v) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Trustee’s knowledge, threatened against the Trustee, affecting the existence of the Trustee, or the entitlement of its officers to their respective offices or seeking to prohibit, restrain or enjoin the execution and delivery of the Bonds or the collection of revenues pledged or to be pledged to pay the principal, redemption premium, if any, and interest represented by the Bonds, or the pledge thereof, or in any way contesting or affecting the validity or enforceability of the Indenture, or the Bonds; or contesting the power or authority of the Trustee to enter into, adopt or perform its obligations under any of the foregoing, wherein an unfavorable decision, ruling or finding would materially adversely affect the validly or enforceability of the Indenture or the Bonds; (10) An opinion of counsel to the Escrow Bank in form and substance satisfactory to the Underwriter and Bond Counsel; (11) A certificate of the Escrow Bank, dated the Closing Date and signed by an authorized Underwriter of the Escrow Bank, to the effect that: (i) The Escrow Bank is a duly organized and existing national banking association in good standing under the laws of the United States of America and has all necessary power and authority to enter into and perform its duties under the Escrow Agreement; (ii) The Escrow Bank is duly authorized to enter into the Escrow Agreement and has duly executed and delivered the Escrow Agreement; (iii) The execution and delivery of the Escrow Agreement and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Escrow Bank’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Escrow Bank is subject or by which it is or may be bound; provided, however, the Escrow Bank need not make any representations and warranties with respect to compliance with any federal and state securities laws; and (iv) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Escrow Bank’s knowledge, threate
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to accept delivery of and pay for the Bonds on the Closing Date shall be subject, at the option of the Underwriter, to the accuracy in all material respects of the representations, representations and warranties and agreements on the part of the District contained herein herein, as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the officers and other officials of the District or the City, acting on behalf of the District, made in any certificates or other documents furnished pursuant to the provisions hereof, and to the performance by the District of its obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions:
(a) At the Closing Date, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate Formation Documents and the Escrow Agreement District Documents shall be in full force and effect in the form heretofore submitted to the Underwritereffect, with only such changes and shall not have been amended, modified or supplemented, except as shall be may have been agreed to in writing by the Underwriter, and there shall have been taken in connection therewith, with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, shall be necessary and appropriate;
(b) At the Closing Date, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter;
(c) Between the date hereof and the Closing Date, the market price or marketabilitymarketability of the Bonds, or the ability of the Underwriter to enforce contracts for the sale of the Bonds, at the initial offering prices set forth in the Official Statement, of the Bonds Statement shall not have been materially adversely affected, in the reasonable judgment of the UnderwriterUnderwriter following consultation with the District (evidenced by a written notice to the District terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
(1) legislation shall have been introduced in or enacted (or resolution passed) by the Congress of the United States of America or the Legislature of the State of California or favorably reported thereto for passage by any Committee to which such legislation has been referred for consideration or be pending before any such Committee or shall have been recommended to the Congress of the United States for passage by the President of the United States or recommended to the Legislature of the State of California for passage by the Governor of the State of California, or a decision shall have been rendered by a court of the United States, including the Tax Court of the United States, or of the State of California, or a ruling or an official release shall have been made or a regulation shall have been proposed or made by the Treasury Department of the United States or the Internal Revenue Service or other federal or State of California authority having jurisdiction over tax matters, with respect to federal or State of California taxation upon revenues or other income of the District or upon interest on obligations of the general character of the Bonds, or other actions or events shall have transpired that would, in the reasonable judgment of the Underwriter, have the purpose or effect, directly or indirectly, of changing the federal or State of California tax consequences of any of the transactions contemplated in connection herewith and that in the reasonable judgment of the Underwriter, affects materially and adversely (i) the market price or marketability of the Bonds or (ii) the ability of the Underwriter to enforce contracts for the sale of the Bonds;
(2) legislation shall have been enacted or introduced in the Congress or recommended for passage by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration or a decision rendered by a court established under Article III of competent jurisdiction the Constitution of the United States of America or by the Tax Court of the United StatesStates of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department or the Internal Revenue Service of the United States of America, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon the interest as would be received by the holders of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof (it being acknowledged by the parties hereto that of the date hereof no such legislation, ruling, regulation, press release or other form of notice which would result in such adverse impact on the market price or marketability of the Bonds exists);
(2) legislation introduced in or official statement enacted (or resolution passed) by the Congress of the United States of America, or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying obligationsarrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as amended (the “Securities Act”)amended, or that the Indenture is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”)amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, or of the Bonds, including any or all underlying obligationsunderwriting arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws laws, rules or regulations as amended and then in effect or that suspends the use of the Official Statement or any supplement thereto or any proceeding for such purpose shall have been initiated or threatened in any such court or by any such authorityeffect;
(3) any amendment to the outbreak federal or escalation California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of hostilities involving the United States District or the declaration by City, their property, income, securities (or interest thereon), or the United States validity or enforceability of the Special Tax;
(4) any event occurring, or information becoming known, which, in the judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Official Statement, or results in the Official Statement containing any untrue statement of a national emergency material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(5) the declaration of war or the escalation of, or engagement in major in, military hostilities by the United States or the occurrence of any other national or international emergency or calamity relating to the effective operation of the government of of, or the financial community in in, the United States;
(46) the declaration of a general banking moratorium by federal, State of New York or State of California authorities, or the general suspension of trading on any national securities exchange;
(57) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriter;
(6) the withdrawal or downgrading of any rating of the Bonds by a national rating agency or notice having been given by a national rating agency of any intended or potential downgrading or other review or possible change in such rating that does not indicate the direction of such possible change; or
(7) 8) any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material adverse respect any statement or information contained in the Official Statement, or has the effect that the Official Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(8) an order, ruling, regulation (final, temporary or proposed), press release, statement or other form of notice by or on behalf of 9) any amendment is made to the Treasury Department of the United States, the Internal Revenue Service or other governmental agency relating to Circular 230 (31 C.F.R. part 10) is issued, made or proposed, that, Official Statement that in the Underwriter’s reasonable judgment will materially adversely affect the marketability of the Underwriter, affects materially and adversely the market for the Bonds or the market price generally of obligations ability of the general character Underwriter to enforce contracts for the sale of the Bonds.
(dc) At or prior to On the Closing Date, the Underwriter shall have received counterpart originals or certified copies of the following documents, in each case reasonably satisfactory in form and substance to the Underwriter:
(1) Copies the Formation Documents and the District Documents, together with a certificate dated as of the IndentureClosing Date of the Clerk of the City Council to the effect that each Formation Document is a true, correct and complete copy of the Disclosure Certificate and the Escrow Agreement, one duly executed and delivered adopted by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to in writing by the UnderwriterCity Council;
(2) An approving opinionthe Preliminary Official Statement and the Official Statement;
(3) an opinion of Bond Counsel, dated the Closing Date and addressed to the District, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, in substantially the form attached as Appendix D to the Preliminary Official Statement, together with a letter from said Bond Counsel authorizing the Underwriter to rely on said opinionStatement as APPENDIX E, and a supplemental an unqualified opinion in form acceptable to the Underwriter and the Districtof such counsel, dated the Closing Date and addressed to the Underwriter and the DistrictUnderwriter, to the effect that:that such approving opinion addressed to the District may be relied upon by the Underwriter to the same extent as if such opinion was addressed to it;
(4) a supplemental opinion, dated the Closing Date and addressed to the Underwriter, of Bond Counsel, to the effect that (i) the this Bond Purchase Agreement has been duly authorized, executed and delivered by the District and, assuming due authorization, execution and delivery by the Underwriter, is such agreement constitutes a valid and binding obligation of the Districtother parties thereto, subject to laws relating to constitutes the legally valid and binding agreement of the District enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvencymoratorium, reorganization arrangement, fraudulent conveyance, moratorium insolvency or other laws affecting creditors’ creditor’s rights generally, or remedies and is subject to the application general principles of equitable principles, to the exercise equity (regardless of judicial discretion whether such enforceability is considered in appropriate cases and to the limitations on legal remedies against a local health care district in the State of California;
equity or at law); (ii) the statements contained in the Official Statement in the sections thereof entitled: “THE BONDS,” “SECURITY FOR THE BONDS,” “TAX MATTERS,” “EXHIBIT C—SUMMARY OF PRINCIPAL LEGAL DOCUMENTS,” and “EXHIBIT D—FORM OF FINAL OPINION OF BOND COUNSEL,” insofar as such statements expressly summarize certain provisions of the Bonds, the Indenture, the Disclosure Certificate, the Escrow Agreement and Bond Counsel’s opinion concerning certain tax matters are accurate in all material respects; and
(iii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification as an indenture pursuant to under the Trust Indenture Act of 1939, as amended.
; (3iii) An opinion dated the Closing Date and addressed to the District and the Underwriter, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the District, in substantially the form attached hereto as Exhibit C.
(4) A certificate of the Executive Director of the District, or such other officer as is acceptable to the Underwriter, dated the Closing Date, to the effect that the representations and agreements of the District contained herein are true and correct in all material respects as of the Closing Date, and:
(i) no litigation is pending or, to the knowledge of such officer, threatened
(a) to restrain or enjoin the issuance or delivery of any of the Bonds or the collection of Revenues pledged under the Indenture, (b) in any way contesting or affecting the authority for the issuance of the Bonds or the validity of the Bonds, the Indenture, the Disclosure Certificate or this Bond Purchase Agreement, or (c) in any way contesting the existence or powers of the District;
(ii) no event affecting the District has occurred since the date of the Official Statement which would cause as of the Closing Date any statement or information contained in the Official Statement on the cover and under the captions “INTRODUCTION,” “THE REFUNDING PLAN,” “THE 2015 BONDS,” “SECURITY AND SOURCES OF PAYMENT FOR THE 2015 BONDS,” “LEGAL MATTERS – Tax Exemption” and APPENDICES C, D and E thereof, insofar as it purports to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements and information therein, in the light summarize certain provisions of the circumstances under which they were madeAct, not misleading;
(iii) since June 30, 2021, no material the Bonds and adverse change has occurred in the financial position or results of operations of Indenture and such counsel’s opinion as to the District other than as is set forth in the Official Statement;
(iv) the District has not, since June 30, 2021, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Official Statement; and
(v) no proceedings are pending or threatened (1) in any way contesting or affecting the District’s status as a local health care district or (2) to subject any exclusion from gross income of the District to for federal income taxation;
(5) Satisfactory evidence that the Bonds have been rated “ ” or better by ▇▇▇▇▇’▇ Investors Service;
(6) An opinion tax purposes and exemption from State of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Salmon, P.L.C., as disclosure counsel (“Disclosure Counsel”), addressed to the District and the Underwriter, to the effect that the Bonds are not subject to the registration requirements California personal income taxes of the Securities Act of 1933, as amended, and to the effect that, based upon its participation in the preparation of the Official Statement as Disclosure Counsel and without having undertaken to determine independently the fairness, accuracy or completeness of the statements contained in the Official Statement, such counsel has no reason to believe that, as of the date of the Official Statement or as of the date of Closing, the Official Statement (excluding therefrom the reports, financial and statistical data and forecasts therein, the information with respect to DTC and the book-entry system and the information included in Appendices thereto, as to which no opinion need be expressed) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(7) A certified copy of the Resolution authorizing the execution and delivery of interest on the Bonds, the Indenture, the Disclosure Certificate, the Bond Purchase Agreement, the Escrow Agreement present a fair and the Official Statement and ratifying the distribution accurate summary of the Preliminary Official Statement and authorizing distribution of the Official Statement;
(8) An opinion of counsel to the Trustee in form and substance satisfactory to the Underwriter and Bond Counsel;
(9) A certificate of the Trustee, dated the Closing Date and signed by an authorized Underwriter of the Trustee, to the effect that:
(i) The Trustee is a duly organized and existing national banking association in good standing under the laws of the United States of America and has all necessary power and authority to enter into and perform its duties under the Indenture;
(ii) The Trustee is duly authorized to enter into the Indenture and has duly executed and delivered the Indenture;
(iii) The Bonds have been duly authenticated and delivered by the Trustee;
(iv) The execution and delivery of the Indenture and the authentication and delivery of the Bonds and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Trustee’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Trustee is subject or by which it is or may be bound; provided, however, the Trustee need not make any representations and warranties with respect to compliance with any federal and state securities lawssuch provisions; and
(v) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Trustee’s knowledge, threatened against the Trustee, affecting the existence of the Trustee, or the entitlement of its officers to their respective offices or seeking to prohibit, restrain or enjoin the execution and delivery of the Bonds or the collection of revenues pledged or to be pledged to pay the principal, redemption premium, if any, and interest represented by the Bonds, or the pledge thereof, or in any way contesting or affecting the validity or enforceability of the Indenture, or the Bonds; or contesting the power or authority of the Trustee to enter into, adopt or perform its obligations under any of the foregoing, wherein an unfavorable decision, ruling or finding would materially adversely affect the validly or enforceability of the Indenture or the Bonds;
(10) An opinion of counsel to the Escrow Bank in form and substance satisfactory to the Underwriter and Bond Counsel;
(11) A certificate of the Escrow Bank, dated the Closing Date and signed by an authorized Underwriter of the Escrow Bank, to the effect that:
(i) The Escrow Bank is a duly organized and existing national banking association in good standing under the laws of the United States of America and has all necessary power and authority to enter into and perform its duties under the Escrow Agreement;
(ii) The Escrow Bank is duly authorized to enter into the Escrow Agreement and has duly executed and delivered the Escrow Agreement;
(iii) The execution and delivery of the Escrow Agreement and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Escrow Bank’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Escrow Bank is subject or by which it is or may be bound; provided, however, the Escrow Bank need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(iv) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Escrow Bank’s knowledge, threate
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to accept delivery of and pay for the Bonds on the Closing Date shall be subject, at the option of the Underwriter, to the accuracy in all material respects of the representations, representations and warranties and agreements on the part of the District City contained herein as of the date hereof and as of the Closing Dateherein, to the accuracy in all material respects of the statements of the officers and other officials of the City and the Community Facilities District made in any certificates or other documents furnished pursuant to the provisions hereof, and to the performance by the City and the Community Facilities District of its their obligations to be performed hereunder at or prior to the Closing Date and and, to the following additional conditions:
(a) A. At the Closing Date, the Official StatementCommunity Facilities District Resolutions, the IndentureFormation Documents, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement City Documents shall be in full force and effect in the form heretofore submitted to the Underwriter, with only such changes as shall be agreed to in writing by the Underwritereffect, and there shall have been taken in connection with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, shall be necessary and appropriate;
(b) At the Closing Date, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter;, and there shall have been taken in connection therewith, with the issuance of the Bonds, and with the transactions contemplated thereby, and by this Purchase Agreement, all such actions as, in the opinion of Bond Counsel, shall be necessary and appropriate.
B. At the Closing Date, except as was described in the Preliminary Official Statement, the City shall not be, in any respect material to the Bonds, the City Documents or the transactions referred to herein or contemplated hereby, in breach of or in default under, any law or administrative rule or regulation of the State, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the City is a party or is otherwise subject or bound, and the performance by the City of its obligations under the Bonds, the City Documents, the Community Facilities District Resolutions, this Purchase Agreement and any other instruments contemplated by any of such documents, and compliance with the provisions of each thereof, will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State, the United States of America or of any department, division, agency or instrumentality of either thereof or under any applicable court or administrative decree or order or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the City is a party or is otherwise subject or bound, in any manner which would materially and adversely affect the performance by the City of its obligations under the City Documents, the Bonds or the Community Facilities District Resolutions.
C. The information contained in the Official Statement is, as of the Closing Date and as of the date of any supplement or amendment thereto pursuant hereto, true and correct in all material respects and does not, as of the Closing Date or as of the date of any supplement or amendment thereto, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
D. The Underwriter shall have the right to cancel its obligation to purchase the Bonds and to terminate this Purchase Agreement by written notice to the City if, between the date of this Purchase Agreement and the Closing Date, in the Underwriter’s sole and reasonable judgment any of the following events shall occur (c) each a “Termination Event”):
1. Between the date hereof and the Closing Date, the market price or marketability, at the initial offering prices set forth in on the cover page of the Official Statement, of the Bonds shall not have been materially adversely affected, in the judgment of the Underwriter, by reason of any of the following:
(1) legislation shall have been enacted by the Congress of the United States or the Legislature of the State of California or favorably reported thereto for passage by any Committee to which such legislation has been referred for consideration or be pending before any such Committee or shall have been recommended to the Congress of the United States for passage by the President of the United States or recommended to the Legislature of the State of California for passage by the Governor of the State of California, or a decision shall have been rendered by a court of the United States, including the Tax Court of the United States, or of the State of California, or a ruling or an official release shall have been made or a regulation shall have been proposed or made by the Treasury Department of the United States or the Internal Revenue Service or other federal or State of California authority having jurisdiction over tax matters, with respect to federal or State of California taxation upon revenues or other income of the District or upon interest on obligations of the general character of the Bonds, or other actions or events shall have transpired that would, in the reasonable judgment of the Underwriter, have the purpose or effect, directly or indirectly, of changing the federal or State of California tax consequences of any of the transactions contemplated in connection herewith and that in the reasonable judgment of the Underwriter, affects materially and adversely (i) the market price or marketability of the Bonds or (ii) the ability of the Underwriter to enforce contracts for the sale of the Bonds;
(2) legislation , shall have been enacted or materially adversely affected, in the reasonable judgment of the Underwriter (evidenced by a written notice to the City terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
a. Legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or the legislature of the State or recommended for passage to the Congress by the President of the United StatesStates of America or a member of the President’s Cabinet, the Department of the Treasury, the Internal Revenue Service or any member of Congress or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration, or a decision rendered by a court established under Article III of competent jurisdiction the Constitution of the United States of America or by the Tax Court of the United StatesStates of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department of the United States of America, the Internal Revenue Service or other federal or State authority with appropriate jurisdiction, with the purpose or effect, directly or indirectly, of imposing State income taxation upon such interest as would be received by any owners of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
b. Legislation introduced in or enacted (or resolution passed) by the Congress, or official shall have been favorably reported out of committee or be pending in committee, or shall have been recommended to the Congress for passage by the President of the United States of America or a member of the President’s Cabinet, or an order, decree, injunction or decision issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release, statement or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, the Resolution or the Bonds, including any or all underlying obligationsCity Documents, are not exempt from registration under or other requirements of the Securities Act of 1933, as amended (the “Securities Act”)amended, or that the Indenture is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”)amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, including any as contemplated hereby or all underlying obligations, by the Official Statement or otherwise is or would be in violation of the federal securities laws as amended and then in effect effect;
c. A general suspension of trading in securities on the New York Stock Exchange or that suspends the use of the Official Statement other major exchange shall be in force, or any supplement thereto minimum or any proceeding maximum prices for such purpose trading shall have been initiated fixed and be in force, or threatened maximum ranges for prices for securities shall have been required and be in force on any such court exchange, whether by virtue of determination by that exchange or by order of the Securities and Exchange Commission or any such authorityother governmental authority having jurisdiction;
d. There shall have occurred, (31) the any material outbreak or escalation of hostilities involving the United States or the declaration by the United States of America of a national emergency or war war, (2) any other calamity or crisis in the engagement in major hostilities by financial markets of the United States of America or the occurrence of any other national emergency elsewhere, or calamity relating to the effective operation of the government of or the financial community in the United States;
(43) the declaration of a general banking moratorium by federal, New York or California authorities, or the general suspension of trading on any national securities exchange;
(5) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, Underwriter;
(6) the withdrawal or downgrading of any sovereign debt rating of the Bonds United States of America is downgraded by a national any major credit rating agency or notice having been given a payment default occurs on United States Treasury obligations, ;
e. Except as disclosed in or contemplated by a national rating agency the Official Statement, any material adverse change in the affairs of the City or the Community Facilities District shall have occurred;
2. The introduction, proposal or enactment of any intended amendment to the federal or potential downgrading California Constitution or any action by any federal or State court, legislative body, regulatory body or other review authority materially adversely affecting the tax status of the City or possible change in such rating that does not indicate the direction Community Facilities District, their property, income, securities (or interest thereon), the validity or enforceability of such possible change; orSpecial Taxes;
(7) any 3. Any event occurring, occurring or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue or incorrect in any material respect any statement or information contained in the Preliminary Official Statement, Statement or in the Official Statement or has the effect that the Preliminary Official Statement contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(8) an order, ruling, regulation (final, temporary or proposed), press release, statement or other form of notice by or on behalf of the Treasury Department of the United States, the Internal Revenue Service or other governmental agency relating to Circular 230 (31 C.F.R. part 10) is issued, made or proposed, that, in the judgment of the Underwriter, affects materially and adversely the market for the Bonds or the market price generally of obligations of the general character of the Bonds.
(d) At or prior to the Closing Date, the Underwriter shall have received the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) Copies of the Indenture, the Disclosure Certificate and the Escrow Agreement, duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to in writing by the Underwriter;
(2) An approving opinion, dated the Closing Date and addressed to the District, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, in substantially the form attached as Appendix D to the Official Statement, together with a letter from said Bond Counsel authorizing the Underwriter to rely on said opinion, and a supplemental opinion in form acceptable to the Underwriter and the District, dated the Closing Date and addressed to the Underwriter and the District, to the effect that:
(i) the Bond Purchase Agreement has been duly executed and delivered by the District and, assuming due authorization, execution and delivery by the Underwriter, is a valid and binding obligation of the District, subject to laws relating to bankruptcy, insolvency, reorganization arrangement, fraudulent conveyance, moratorium or other laws affecting creditors’ rights generally, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against a local health care district in the State of California;
(ii) the statements contained in the Official Statement in the sections thereof entitled: “THE BONDS,” “SECURITY FOR THE BONDS,” “TAX MATTERS,” “EXHIBIT C—SUMMARY OF PRINCIPAL LEGAL DOCUMENTS,” and “EXHIBIT D—FORM OF FINAL OPINION OF BOND COUNSEL,” insofar as such statements expressly summarize certain provisions of the Bonds, the Indenture, the Disclosure Certificate, the Escrow Agreement and Bond Counsel’s opinion concerning certain tax matters are accurate in all material respects; and
(iii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification as an indenture pursuant to the Trust Indenture Act of 1939, as amended.
(3) An opinion dated the Closing Date and addressed to the District and the Underwriter, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the District, in substantially the form attached hereto as Exhibit C.
(4) A certificate of the Executive Director of the District, or such other officer as is acceptable to the Underwriter, dated the Closing Date, to the effect that the representations and agreements of the District contained herein are true and correct in all material respects as of the Closing Date, and:
(i) no litigation is pending or, to the knowledge of such officer, threatened
(a) to restrain or enjoin the issuance or delivery of any of the Bonds or the collection of Revenues pledged under the Indenture, (b) in any way contesting or affecting the authority for the issuance of the Bonds or the validity of the Bonds, the Indenture, the Disclosure Certificate or this Bond Purchase Agreement, or (c) in any way contesting the existence or powers of the District;
(ii) no event affecting the District has occurred since the date of the Official Statement which would cause as of the Closing Date any statement or information contained in the Official Statement to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements and information therein, in the light of the circumstances under which they were made, not misleading;
(iii) since June 30, 2021, no material and adverse change has occurred in the financial position or results of operations of the District other than as is set forth in the Official Statement;
(iv) the District has not, since June 30, 2021, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Official Statement; and
(v) no proceedings are pending or threatened (1) in any way contesting or affecting the District’s status as a local health care district or (2) to subject any income of the District to federal income taxation;
(5) Satisfactory evidence that the Bonds have been rated “ ” or better by ▇▇▇▇▇’▇ Investors Service;
(6) An opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Salmon, P.L.C., as disclosure counsel (“Disclosure Counsel”), addressed to the District and the Underwriter, to the effect that the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and to the effect that, based upon its participation in the preparation of the Official Statement as Disclosure Counsel and without having undertaken to determine independently the fairness, accuracy or completeness of the statements contained in the Official Statement, such counsel has no reason to believe that, as of the date of the Official Statement or as of the date of Closing, the Official Statement (excluding therefrom the reports, financial and statistical data and forecasts therein, the information with respect to DTC and the book-entry system and the information included in Appendices thereto, as to which no opinion need be expressed) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
4. A general banking moratorium shall have been declared by federal, State of New York or State of California officials authorized to do so or a material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred;
5. Any new restriction on transactions in securities materially affecting the market for securities (7including the imposition of any limitation in interest rates) A certified copy or the extension of credit by, or a charge to the net capital requirements of, underwriters shall have been established by the New York Stock Exchange, the Comptroller of the Resolution authorizing Currency, the execution Securities and delivery Exchange Commission or any other federal or State agency or the Congress of the BondsUnited States of America, the Indenture, the Disclosure Certificate, the Bond Purchase Agreement, the Escrow Agreement and the Official Statement and ratifying the distribution of the Preliminary Official Statement and authorizing distribution of the Official Statementor by Executive Order;
(8) An opinion of counsel to the Trustee in form and substance satisfactory to the Underwriter and Bond Counsel;
(9) 6. A certificate of the Trustee, dated the Closing Date and signed decision by an authorized Underwriter of the Trustee, to the effect that:
(i) The Trustee is a duly organized and existing national banking association in good standing under the laws court of the United States of America shall be rendered, or a stop order, release, regulation or no-action letter by or on behalf of the Securities and has all necessary power and authority to enter into and perform its duties under Exchange Commission or any other governmental agency having jurisdiction of the Indenture;
(ii) The Trustee is duly authorized to enter into the Indenture and has duly executed and delivered the Indenture;
(iii) The Bonds subject matter shall have been duly authenticated and delivered by issued or made, to the Trustee;
(iv) The execution and delivery of effect that the Indenture and the authentication and delivery issuance, offering or sale of the Bonds and compliance with as contemplated by this Purchase Agreement or by the provisions thereof, will not conflict withOfficial Statement, or constitute a breach of or default under, the Trustee’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Trustee is subject or by which it is or may be bound; provided, however, the Trustee need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(v) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, document relating to the best of the Trustee’s knowledgeissuance, threatened against the Trustee, affecting the existence of the Trustee, offering or the entitlement of its officers to their respective offices or seeking to prohibit, restrain or enjoin the execution and delivery sale of the Bonds is or would be in violation of any provision of the federal securities laws at the Closing Date, including the Securities Act of 1933, the Securities Exchange Act of 1934 and the Trust Indenture Act of 1939;
7. Any proceeding shall have been commenced or be threatened in writing by the Securities and Exchange Commission against the City or the collection Community Facilities District.
8. The commencement of revenues pledged or to be pledged to pay an Action described in Section 2(H). Upon the principaloccurrence of a Termination Event and the termination of this Purchase Agreement by the Underwriter, redemption premiumall obligations of the City, if anythe Community Facilities District, and interest represented by the BondsUnderwriter under this Agreement shall terminate, without further liability, except that the City and the Underwriter shall pay their respective expenses as set forth in Section 5 below.
E. At or prior to the pledge thereofClosing Date, the Underwriter shall have received a counterpart original or in any way contesting or affecting the validity or enforceability certified copy of the Indenturefollowing documents, or the Bonds; or contesting the power or authority of the Trustee to enter into, adopt or perform its obligations under any of the foregoing, wherein an unfavorable decision, ruling or finding would materially adversely affect the validly or enforceability of the Indenture or the Bonds;
(10) An opinion of counsel to the Escrow Bank in each case satisfactory in form and substance satisfactory to the Underwriter and Bond Counsel;
(11) A certificate of the Escrow Bank, dated the Closing Date and signed by an authorized Underwriter of the Escrow Bank, to the effect thatUnderwriter:
(i) The Escrow Bank is a duly organized and existing national banking association in good standing under the laws of the United States of America and has all necessary power and authority to enter into and perform its duties under the Escrow Agreement;
(ii) The Escrow Bank is duly authorized to enter into the Escrow Agreement and has duly executed and delivered the Escrow Agreement;
(iii) The execution and delivery of the Escrow Agreement and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Escrow Bank’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Escrow Bank is subject or by which it is or may be bound; provided, however, the Escrow Bank need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(iv) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Escrow Bank’s knowledge, threate
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to accept delivery of and pay for the Bonds on the Closing Date shall be subject, at the option of the Underwriter, to the accuracy in all material respects of the representations, representations and warranties and agreements on the part of the Community Facilities District contained herein as of the date hereof and as of the Closing Dateherein, to the accuracy in all material respects of the statements of the officers and other officials of the Community Facilities District made in any certificates or other documents furnished pursuant to the provisions hereof, and to the performance by the Community Facilities District of its their obligations to be performed hereunder at or prior to the Closing Date Date, and in reliance upon the representations and covenants of the Developer contained in the certificate(s) delivered as of the Closing Date, and to the following additional conditions:
(a) A. At the Closing Date, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate Community Facilities District Resolutions and the Escrow Agreement Community Facilities District Documents shall be in full force and effect in the form heretofore submitted to the Underwriter, with only such changes as shall be agreed to in writing by the Underwritereffect, and there shall have been taken in connection with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, shall be necessary and appropriate;
(b) At the Closing Date, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter;, and there shall have been taken in connection therewith, with the issuance of the Bonds and with the Bonds, and with the transactions contemplated thereby, and by this Purchase Agreement, all such actions as, in the opinion of Bond Counsel, shall be necessary and appropriate.
(c) Between the date hereof and B. At the Closing Date, the market price or marketability, at the initial offering prices set forth except as described in the Preliminary Official Statement, the City shall not be, in any respect material to the transactions referred to herein or contemplated hereby, in breach of or in default under, any law or administrative rule or regulation of the Bonds shall not have been materially adversely affectedState, in the judgment of the Underwriter, by reason of any of the following:
(1) legislation shall have been enacted by the Congress of the United States or the Legislature of the State of California or favorably reported thereto for passage by any Committee to which such legislation has been referred for consideration or be pending before any such Committee or shall have been recommended to the Congress of the United States for passage by the President of the United States or recommended to the Legislature of the State of California for passage by the Governor of the State of California, or a decision shall have been rendered by a court of the United States, including the Tax Court of the United States, or of the State of California, or a ruling or an official release shall have been made or a regulation shall have been proposed or made by the Treasury Department of the United States or the Internal Revenue Service or other federal or State of California authority having jurisdiction over tax matters, with respect to federal or State of California taxation upon revenues or other income of the District or upon interest on obligations of the general character of the Bonds, or other actions or events shall have transpired that would, in the reasonable judgment of the Underwriter, have the purpose or effect, directly or indirectly, of changing the federal or State of California tax consequences of any of the transactions contemplated in connection herewith and that in the reasonable judgment of the Underwriter, affects materially and adversely (i) the market price or marketability of the Bonds or (ii) the ability of the Underwriter to enforce contracts for the sale of the Bonds;
(2) legislation shall have been enacted or introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court of competent jurisdiction or by the Tax Court of the United States, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying obligations, are not exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), that the Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), or that the issuance, offering or sale of the Bonds, including any or all underlying obligations, is or would be in violation of the federal securities laws as amended and then in effect or that suspends the use of the Official Statement or any supplement thereto or any proceeding for such purpose shall have been initiated or threatened in any such court or by any such authority;
(3) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the City is a national emergency party or war is otherwise subject or bound, and the engagement in major hostilities by performance of the conditions precedent to be performed hereunder will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State, the United States of America, or the occurrence of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other national emergency instrument to which the City is a party or calamity relating is otherwise subject or bound, in any manner which would materially and adversely affect the performance of the conditions precedent to be performed by the City hereunder.
C. At the Closing Date, except as described in the Preliminary Official Statement, the Community Facilities District shall not be, in any respect material to the effective operation transactions referred to herein or contemplated hereby, in breach of or in default under, any law or administrative rule or regulation of the government of or the financial community in State, the United States;
(4) States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the declaration Community Facilities District is a party or is otherwise subject or bound, and the performance by the Community Facilities District of a general banking moratorium its obligations under the Bonds, the Community Facilities District Resolutions, the Community Facilities District Documents, and any other instruments contemplated by federalany of such documents, New York or California authoritiesand compliance with the provisions of each thereof, or the general suspension performance of trading on the conditions precedent to be performed hereunder, will not conflict with or constitute a breach of or default under any national securities exchange;
(5) applicable law or administrative rule or regulation of the imposition State, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Community Facilities District is a party or is otherwise subject or bound, in any manner which would materially and adversely affect the performance by the New York Stock Exchange Community Facilities District of its obligations under the Community Facilities District Documents or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations performance of the general character of conditions precedent to be performed by the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, Underwriter;Community Facilities District hereunder.
(6) the withdrawal or downgrading of any rating of the Bonds by a national rating agency or notice having been given by a national rating agency of any intended or potential downgrading or other review or possible change in such rating that does not indicate the direction of such possible change; or
(7) any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material respect any statement or D. The information contained in the Official StatementStatement is, as of the Closing Date and as of the date of any supplement or has amendment thereto pursuant hereto, true and correct in all material respects and does not, as of the effect that Closing Date or as of the Official Statement contains date of any supplement or amendment thereto, contain any untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
E. Between the date hereof and the Closing Date, the market price or marketability, at the initial offering prices set forth on the cover page of the Official Statement, of the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds, shall not have been materially adversely affected, in the reasonable judgment of the Underwriter (8) evidenced by a written notice to the Community Facilities District terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
1. Legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration, or a decision rendered by a court established under Article III of the Constitution of the United States of America or by the Tax Court of the United States of America, or an order, ruling, regulation (final, temporary or proposed), press release, statement release or other form of notice issued or made by or on behalf of the Treasury Department of the United States, States of America or the Internal Revenue Service Service, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon such interest as would be received by any owners of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
2. Legislation introduced in or enacted (or resolution passed) by the Congress or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission (“SEC”), or any other governmental agency relating to Circular 230 (31 C.F.R. part 10) is issued, made or proposed, that, in the judgment having jurisdiction of the Underwritersubject matter, affects materially and adversely to the market for effect that obligations of the Bonds general character of the Bonds, including any or all underlying arrangements, are not exempt from registration under or other requirements of the market price generally Securities Act of 1933, as amended, or that the Indenture is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, including any or all underlying arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws as amended and then in effect;
3. A general suspension of trading on the New York Stock Exchange or other major exchange shall be in force, 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 any such exchange, whether by virtue of determination by that exchange or by order of the SEC or any other governmental authority having jurisdiction;
4. The introduction, proposal or enactment of any amendment to the federal or California Constitution or any action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the Community Facilities District, its property, income, securities (or interest thereon), the validity or enforceability of Special Taxes, or the ability of the Community Facilities District to construct or acquire the improvements as contemplated by the Formation Documents, the Community Facilities District Documents or the Official Statement or the right of any owner of the property within the Community Facilities District to develop such property in the manner described in the Official Statement, or the ability of the Community Facilities District to issue the Bonds as contemplated by the Indenture and the Official Statement;
5. There shall have occurred (1) an outbreak or escalation of hostilities or the declaration by the United States of a national emergency or war, (2) any other calamity or crisis in the financial markets of the United States or elsewhere, or (3) the sovereign debt rating of the United States is downgraded by any major credit rating agency or a payment default occurs on United States Treasury obligations;
6. Except as disclosed in or contemplated by the Official Statement, any material adverse change in the affairs of the City or Community Facilities District shall have occurred;
7. Any event or circumstance shall exist that either makes untrue or incorrect in any material respect any statement or information in the Official Statement (other than any statement provided by the Underwriter) or is not reflected in the Official Statement but should be reflected therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and, in either such event, the City or the Community Facilities District refuses to permit the Official Statement to be supplemented to supply such statement or information, or the effect of the Official Statement as so supplemented is to materially adversely affect the market price or marketability of the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds;
8. A general banking moratorium shall have been declared by federal or State authorities having jurisdiction and be in force;
9. A material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred;
10. Any new restriction on transactions in securities materially affecting the market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a charge to the net capital requirements of, underwriters shall have been established by any national securities exchange, the Comptroller of the Currency, , the SEC, any other federal or State agency or the Congress of the United States, or by Executive Order;
11. Any proceeding shall have been commenced or be threatened in writing by the Securities and Exchange Commission against the City or the Community Facilities District; or
12. The commencement of any Action.
(d) F. At or prior to the Closing Date, the Underwriter shall have received a counterpart original or certified copy of the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) Copies . The Official Statement, executed on behalf of the IndentureCommunity Facilities District by an authorized officer;
2. The Community Facilities District Documents, the Disclosure Certificate and the Escrow Agreement, each duly executed and delivered by the respective parties thereto, with only such amendments, modifications or supplements as may have been agreed to in writing by the Underwriter;
(2) 3. The Community Facilities District Resolutions and the Formation Documents, and the Community Facilities District Documents, together with a certificate dated as of the Closing Date of the City Clerk to the effect that resolutions and documents are true, correct and complete copies of the ones duly adopted by the City Council;
4. An unqualified approving opinionopinion for the Bonds, dated the Closing Date and addressed to the Community Facilities District, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, to the effect that the Bonds are the valid, legal and binding obligations of the Community Facilities District and that the interest thereon is excluded from gross income for federal income tax purposes and exempt from personal income taxes of the State, in substantially the form attached included as Appendix D C to the Official Statement, together with a letter from said of Bond Counsel authorizing the Underwriter to rely on said opinion, and a supplemental opinion in form acceptable to the Underwriter and the DistrictCounsel, dated the Closing Date and addressed to the Underwriter and the DistrictTrustee, to the effect that such opinion addressed to the Community Facilities District may be relied upon by the Underwriter and the Trustee to the same extent as if such opinion was addressed to it;
5. A supplemental opinion or opinions of Bond Counsel dated the Closing Date and addressed to the Underwriter to the effect that:
(i) the Bond this Purchase Agreement has and the Continuing Disclosure Certificate have been duly executed and delivered by the Community Facilities District and, assuming due authorization, execution and delivery by the Underwriterother parties thereto, is a constitute the valid and binding obligation obligations of the Community Facilities District, subject except to laws relating to the extent that enforceability may be limited by moratorium, bankruptcy, insolvencyreorganization, reorganization arrangement, fraudulent conveyance, moratorium insolvency or other similar laws affecting creditors’ rights generally, to the application of equitable principles, to generally or by the exercise of judicial discretion in accordance with general principles of equity or otherwise in appropriate cases and to the by limitations on legal remedies against a local health care district public agencies in the State of CaliforniaState;
(ii) the statements contained in the Official Statement in the sections thereof entitled: “THE BONDS,” “SECURITY FOR THE BONDS,” “TAX MATTERS,” “EXHIBIT C—SUMMARY OF PRINCIPAL LEGAL DOCUMENTS,” and “EXHIBIT D—FORM OF FINAL OPINION OF BOND COUNSEL,” insofar as such statements expressly summarize certain provisions of the Bonds, the Indenture, the Disclosure Certificate, the Escrow Agreement and Bond Counsel’s opinion concerning certain tax matters are accurate in all material respects; and
(iii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification as an indenture pursuant to under the Trust Indenture Act of 1939, as amended; and
(iii) the statements contained in the Official Statement under the captions “INTRODUCTION – Source of Payment for the Bonds,” “INTRODUCTION – Description of the Bonds,” “INTRODUCTION – Tax Exemption,” “INTRODUCTION – Parity Bonds for Refunding Purposes Only,” “THE BONDS,” “SOURCES OF PAYMENT FOR THE BONDS,” (except information under the caption “– Special Taxes” as to which no opinion is expressed), “TAX EXEMPTION,” Appendix C – “FORM OF OPINION OF BOND COUNSEL” and Appendix F – “SUMMARY OF THE INDENTURE,” excluding any material that may be treated as included under such captions by cross-reference or reference to other documents or sources, insofar as such statements expressly summarize certain provisions of the Indenture and Bond Counsel’s final approving opinion, are accurate in all material respects.
(3) An opinion 6. A letter, dated the Closing Date and addressed to the District and the Underwriter, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the District, in substantially the form attached hereto as Exhibit C.
(4) A certificate of the Executive Director of the District, or such other officer as is acceptable to the Underwriter, dated the Closing DateDisclosure Counsel, to the effect that the representations such counsel is not passing upon and agreements of the District contained herein are true and correct in all material respects as of the Closing Date, and:
(i) no litigation is pending or, to the knowledge of such officer, threatened
(a) to restrain or enjoin the issuance or delivery of any of the Bonds or the collection of Revenues pledged under the Indenture, (b) in any way contesting or affecting the authority for the issuance of the Bonds or the validity of the Bonds, the Indenture, the Disclosure Certificate or this Bond Purchase Agreement, or (c) in any way contesting the existence or powers of the District;
(ii) no event affecting the District has occurred since the date of the Official Statement which would cause as of the Closing Date any statement or information contained in the Official Statement to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements and information therein, in the light of the circumstances under which they were made, not misleading;
(iii) since June 30, 2021, no material and adverse change has occurred in the financial position or results of operations of the District other than as is set forth in the Official Statement;
(iv) the District has not, since June 30, 2021, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Official Statement; and
(v) no proceedings are pending or threatened (1) in any way contesting or affecting the District’s status as a local health care district or (2) to subject any income of the District to federal income taxation;
(5) Satisfactory evidence that the Bonds have been rated “ ” or better by ▇▇▇▇▇’▇ Investors Service;
(6) An opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Salmon, P.L.C., as disclosure counsel (“Disclosure Counsel”), addressed to the District and the Underwriter, to the effect that the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and to the effect that, based upon its participation in the preparation of the Official Statement as Disclosure Counsel and without having undertaken to determine independently or to verify the fairness, accuracy or completeness of the statements contained in the Preliminary Official Statement or in the Official Statement, such counsel has no reason and is, therefore, unable to believe thatmake any representation to the Underwriter in that regard, but on the basis of its participation in conferences with representatives of the City, the City Attorney, as issuer’s counsel (“Issuer’s Counsel”), Bond Counsel, the appraisal of the taxable properties within the Community Facilities District with a date of the Official Statement or value as of February 9, 2024 (the date of Closing“Appraisal Report”), prepared by ▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. (the “Appraiser”), Empire Economics, Inc., Special District Financing & Administration, LLC (the “Special Tax Consultant”), the Official Statement (excluding therefrom the reportsMunicipal Advisor, financial and statistical data and forecasts therein, the information with respect to DTC and the book-entry system and the information included in Appendices thereto, as to which no opinion need be expressed) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light representatives of the circumstances under Underwriter and others, during which they were made, not misleading;
(7) A certified copy of conferences the Resolution authorizing the execution and delivery of the Bonds, the Indenture, the Disclosure Certificate, the Bond Purchase Agreement, the Escrow Agreement and the Official Statement and ratifying the distribution content of the Preliminary Official Statement and authorizing distribution the Official Statement and related matters were discussed, and its examination of certain documents, and, in reliance thereon and based on the information made available to it in its role as Disclosure Counsel and its understanding of applicable law, Disclosure Counsel advises the Underwriter as a matter of fact, but not opinion, that no information has come to the attention of the Official Statement;
(8) An opinion of counsel attorneys in the firm working on such matter which has led them to believe that the Trustee in form and substance satisfactory to the Underwriter and Bond Counsel;
(9) A certificate of the Trustee, dated the Closing Date and signed by an authorized Underwriter of the Trustee, to the effect that:
(i) The Trustee is a duly organized and existing national banking association in good standing under the laws of the United States of America and has all necessary power and authority to enter into and perform its duties under the Indenture;
(ii) The Trustee is duly authorized to enter into the Indenture and has duly executed and delivered the Indenture;
(iii) The Bonds have been duly authenticated and delivered by the Trustee;
(iv) The execution and delivery of the Indenture and the authentication and delivery of the Bonds and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Trustee’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Trustee is subject or by which it is or may be bound; provided, however, the Trustee need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(v) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Trustee’s knowledge, threatened against the Trustee, affecting the existence of the Trustee, or the entitlement of its officers to their respective offices or seeking to prohibit, restrain or enjoin the execution and delivery of the Bonds or the collection of revenues pledged or to be pledged to pay the principal, redemption premium, if any, and interest represented by the Bonds, or the pledge thereof, or in any way contesting or affecting the validity or enforceability of the Indenture, or the Bonds; or contesting the power or authority of the Trustee to enter into, adopt or perform its obligations under any of the foregoing, wherein an unfavorable decision, ruling or finding would materially adversely affect the validly or enforceability of the Indenture or the Bonds;
(10) An opinion of counsel to the Escrow Bank in form and substance satisfactory to the Underwriter and Bond Counsel;
(11) A certificate of the Escrow Bank, dated the Closing Date and signed by an authorized Underwriter of the Escrow Bank, to the effect that:
(i) The Escrow Bank is a duly organized and existing national banking association in good standing under the laws of the United States of America and has all necessary power and authority to enter into and perform its duties under the Escrow Agreement;
(ii) The Escrow Bank is duly authorized to enter into the Escrow Agreement and has duly executed and delivered the Escrow Agreement;
(iii) The execution and delivery of the Escrow Agreement and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Escrow Bank’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Escrow Bank is subject or by which it is or may be bound; provided, however, the Escrow Bank need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(iv) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Escrow Bank’s knowledge, threatePrelimi
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to accept delivery of and pay for the Bonds on the Closing Date shall be subject, at the option of the Underwriter, to the accuracy in all material respects of the representations, representations and warranties and agreements on the part of the District contained herein herein, as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the officers and other officials of the County and the District made in any certificates or other documents furnished pursuant to the provisions hereof, and to the performance by the District of its obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions:
(a) At the Closing Date, the Official StatementResolution, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate Formation Documents and the Escrow Agreement District Documents shall be in full force and effect in the form heretofore submitted to the Underwritereffect, with only such changes and shall not have been amended, modified or supplemented, except as shall be may have been agreed to in writing by the Underwriter, and there shall have been taken in connection therewith, with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, shall be necessary and appropriate;
(b) At the Closing Date, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter;
(c) Between the date hereof and the Closing Date, the market price or marketability, marketability of the Bonds at the initial offering prices set forth in the Official Statement, of the Bonds Statement shall not have been materially adversely affected, in the judgment of the UnderwriterUnderwriter (evidenced by a written notice to the District terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
(1) legislation shall have been introduced in or enacted (or resolution passed) by the Congress of the United States of America or the Legislature of the State of California or favorably reported thereto for passage by any Committee to which such legislation has been referred for consideration or be pending before any such Committee or shall have been recommended to the Congress of the United States for passage by the President of the United States or recommended to the Legislature of the State of California for passage by the Governor of the State of California, or a decision shall have been rendered by a court of the United States, including the Tax Court of the United States, or of the State of California, or a ruling or an official release shall have been made or a regulation shall have been proposed or made by the Treasury Department of the United States or the Internal Revenue Service or other federal or State of California authority having jurisdiction over tax matters, with respect to federal or State of California taxation upon revenues or other income of the District or upon interest on obligations of the general character of the Bonds, or other actions or events shall have transpired that would, in the reasonable judgment of the Underwriter, have the purpose or effect, directly or indirectly, of changing the federal or State of California tax consequences of any of the transactions contemplated in connection herewith and that in the reasonable judgment of the Underwriter, affects materially and adversely (i) the market price or marketability of the Bonds or (ii) the ability of the Underwriter to enforce contracts for the sale of the Bonds;
(2) legislation shall have been enacted or introduced in the Congress or recommended for passage by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration or a decision rendered by a court established under Article III of competent jurisdiction the Constitution of the United States of America or by the Tax Court of the United StatesStates of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department or the Internal Revenue Service of the United States of America, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon the interest that would be received by the holders of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
(2) legislation introduced in or official statement enacted (or resolution passed) by the Congress of the United States of America, or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying obligationsarrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as amended (the “Securities Act”)amended, or that the Indenture is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”)amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, or of the Bonds, including any or all underlying obligationsunderwriting arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws laws, rules or regulations as amended and then in effect or that suspends the use of the Official Statement or any supplement thereto or any proceeding for such purpose shall have been initiated or threatened in any such court or by any such authorityeffect;
(3) any amendment to the outbreak federal or escalation California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of hostilities involving the United States District, its property, income, securities (or interest thereon), the validity or enforceability of the Special Tax or the declaration ability of the District to construct or acquire the improvements as contemplated by the United States of a national emergency or war Resolution, the Formation Documents, the District Documents or the engagement in major hostilities by the United States Official Statement or the occurrence right of any other national emergency or calamity relating to the effective operation owner of the government of or property within the financial community District to develop such property in the United Statesmanner described in the Official Statement;
(4) the declaration of a general banking moratorium by federal, New York or California authorities, or the A general suspension of trading in securities on any national securities exchange;
(5) the imposition by the New York Stock Exchange or a general banking moratorium declared by federal of State or California officials authorized to do so or an escalation of terrorist activities in this country or in our nation’s military activities or any other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, Underwriter;
(6) the withdrawal or downgrading of any rating of the Bonds by a national rating agency or notice having been given by a national rating agency of any intended or potential downgrading or other review or possible change in such rating that does not indicate the direction of such possible changecalamity; or
(75) any event occurring, or information becoming known known, which, in the reasonable judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Official Statement, or has the effect that results in the Official Statement contains containing any untrue statement of a material fact or omits omitting to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(8) an order, ruling, regulation (final, temporary or proposed), press release, statement or other form of notice by or on behalf of the Treasury Department of the United States, the Internal Revenue Service or other governmental agency relating to Circular 230 (31 C.F.R. part 10c) is issued, made or proposed, that, in the judgment of the Underwriter, affects materially and adversely the market for the Bonds or the market price generally of obligations of the general character of the Bonds.
(d) At or prior to On the Closing Date, the Underwriter shall have received counterpart originals or certified copies of the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) Copies The Resolution, the Formation Documents and the District Documents, together with a certificate dated as of the IndentureClosing Date of the Clerk of the Board of Supervisors to the effect that each such document is a true, correct and complete copy of the Disclosure Certificate and the Escrow Agreement, one duly executed and delivered adopted by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to in writing by the UnderwriterBoard of Supervisors;
(2) The Official Statement, duly executed by the District;
(3) An unqualified approving opinionopinion for the Bonds, dated the Closing Date and addressed to the District, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond CounselCounsel for the District, in substantially the form attached to the Preliminary Official Statement as Appendix D to the Official Statement, together with a letter from said Bond Counsel authorizing the Underwriter to rely on said opinionD, and a supplemental opinion in form acceptable to the Underwriter and the Districtreliance letter from such firm, dated the Closing Date and addressed to the Underwriter and the DistrictUnderwriter, to the effect that:that such approving opinion addressed to the District may be relied upon by the Underwriter to the same extent as if such opinion was addressed to them;
(4) A supplemental opinion, dated the Closing Date and addressed to the Underwriter, of Bond Counsel, to the effect that (i) the this Bond Purchase Agreement has been duly authorized, executed and delivered by the District District, and, assuming due authorization, execution and delivery by such agreement constitutes the Underwriter, is a valid and binding obligation of the Districtother parties thereto, subject to laws relating to constitutes the legally valid and binding agreement of the District enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvencymoratorium, reorganization arrangement, fraudulent conveyance, moratorium insolvency or other laws affecting creditors’ creditor’s rights generally, or remedies and is subject to the application general principles of equitable principles, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against a local health care district in the State of California;
equity; (ii) the statements contained in the Official Statement in the sections thereof entitled: “THE BONDS,” “SECURITY FOR THE BONDS,” “TAX MATTERS,” “EXHIBIT C—SUMMARY OF PRINCIPAL LEGAL DOCUMENTS,” and “EXHIBIT D—FORM OF FINAL OPINION OF BOND COUNSEL,” insofar as such statements expressly summarize certain provisions of the Bonds, the Indenture, the Disclosure Certificate, the Escrow Agreement and Bond Counsel’s opinion concerning certain tax matters are accurate in all material respects; and
(iii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification as an indenture pursuant to the Trust Indenture Act of 1939, as amended.; and (iii) the statements on the cover and contained in the Official Statement under the captions “THE SERIES 2016 BONDS” (excluding the information under the caption “Book-Entry Only System”), “SECURITY AND SOURCES OF PAYMENT FOR THE SERIES 2016 BONDS” and “TAX MATTERS” and Appendix C, insofar as such statements expressly summarize certain provisions of the Bonds, the Indenture, and the opinion of such firm concerning the exclusion from gross income for federal income tax purposes and exemption from State of California personal income taxes of interest on the Bonds, are accurate in all material respects;
(35) An opinion A letter, dated the Closing Date and addressed to the District Underwriter and the UnderwriterDistrict, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the District, in substantially the form attached hereto as Exhibit C.
(4) A certificate of the Executive Director of the District, or such other officer as is acceptable to the Underwriter, dated the Closing Date, to the effect that the representations and agreements of the District contained herein are true and correct in all material respects as of the Closing Date, and:
(i) no litigation is pending or, to the knowledge of such officer, threatened
(a) to restrain or enjoin the issuance or delivery of any of the Bonds or the collection of Revenues pledged under the Indenture, (b) in any way contesting or affecting the authority for the issuance of the Bonds or the validity of the Bonds, the Indenture, the Disclosure Certificate or this Bond Purchase Agreement, or (c) in any way contesting the existence or powers of the District;
(ii) no event affecting the District has occurred since the date of the Official Statement which would cause as of the Closing Date any statement or information contained in the Official Statement to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements and information therein, in the light of the circumstances under which they were made, not misleading;
(iii) since June 30, 2021, no material and adverse change has occurred in the financial position or results of operations of the District other than as is set forth in the Official Statement;
(iv) the District has not, since June 30, 2021, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Official Statement; and
(v) no proceedings are pending or threatened (1) in any way contesting or affecting the District’s status as a local health care district or (2) to subject any income of the District to federal income taxation;
(5) Satisfactory evidence that the Bonds have been rated “ ” or better by ▇▇▇▇▇’▇ Investors Service;
(6) An opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Salmon, P.L.C.Professional Corporation, as disclosure counsel to the District (“Disclosure Counsel”), addressed to the District and the Underwriter, to the effect that the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and substantially to the effect that, based upon its participation in the preparation of the Official Statement as Disclosure Counsel and without having undertaken to determine independently the fairness, accuracy or completeness of the statements contained in the Official Statement, such counsel but on the basis of their participation in conferences with representatives of the County, the District, Bond Counsel, the Underwriter, and others, and their examination of certain documents, nothing has no reason come to their attention which has led them to believe that, as of the date of that the Official Statement or as of the date of Closing, the Official Statement (excluding therefrom the reports, financial and statistical data and forecasts therein, the information with respect to DTC and the book-entry system and the information included in Appendices thereto, as to which no opinion need be expressed) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading (except that no opinion or belief need be expressed as to any financial, statistical or engineering data or forecasts, numbers, charts, estimates, projections, assumptions, or expressions of opinion, any information about valuation, appraisals or environmental matters, or the Appendices, or any information about The Depository Trust Company or the book-entry system;
(76) A certified copy of the Resolution authorizing the execution and delivery of the Bonds, the Indenture, the Disclosure Certificate, the Bond Purchase Agreement, the Escrow Agreement and the Official Statement and ratifying the distribution of the Preliminary Official Statement and authorizing distribution of the Official Statement;
(8) An opinion of counsel to the Trustee in form and substance satisfactory to the Underwriter and Bond Counsel;
(9) A certificate of the Trusteecertificate, dated the Closing Date and signed by an authorized representative of the District, ratifying the use and distribution by the Underwriter of the TrusteePreliminary Official Statement and the Official Statement in connection with the offering and sale of the Bonds and certifying that (i) the representations and warranties of the District contained in Section 2 hereof are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date except that all references therein to the Preliminary Official Statement shall be deemed to be references to the Official Statement; and (ii) the District has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under the Resolution, the Formation Documents, the District Documents and the Official Statement at or prior to the Closing Date;
(7) An opinion, dated the Closing Date and addressed to the Underwriter, of the County Counsel, to the effect that:
that (i) The Trustee is a duly organized to the best of his or her knowledge and existing national banking association except as disclosed in good standing under the laws of the United States of America and has all necessary power and authority to enter into and perform its duties under the Indenture;
(ii) The Trustee is duly authorized to enter into the Indenture and has duly executed and delivered the Indenture;
(iii) The Bonds have been duly authenticated and delivered by the Trustee;
(iv) The execution and delivery of the Indenture and the authentication and delivery of the Bonds and compliance with the provisions thereofOfficial Statement, will not conflict with, or constitute a breach of or default under, the Trustee’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Trustee is subject or by which it is or may be bound; provided, however, the Trustee need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(v) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental regulatory agency, public board or body, served upon or, to body is pending or threatened which would materially adversely affect the best ability of the Trustee’s knowledgeDistrict to perform its obligations under the Resolution, threatened against the TrusteeFormation Documents, affecting the existence of the Trustee, District Documents or the entitlement of its officers to their respective offices Bonds, or seeking to prohibit, restrain or to enjoin the execution and development of property within the District, the issuance, sale, delivery or exclusion from gross income for federal income tax purposes or State of the Bonds or the collection California personal income taxes of revenues pledged or to be pledged to pay the principalinterest, redemption premium, if any, and interest represented by on the Bonds, or the pledge thereofapplication of the proceeds thereof in accordance with the Indenture, or the collection or application of the Special Tax, or in any way contesting or affecting the validity or enforceability of the IndentureResolution, the Formation Documents, the District Documents or the Bonds or the accuracy of the Official Statement, or the Bonds; or contesting the power or authority any action of the Trustee County or the District contemplated by any of said documents; (ii) the County is duly organized and validly existing as a general law county under the Constitution and laws of the State of California and the District is duly organized and validly existing as a community facilities district under the laws of the State of California, with full legal right, power and authority to enter into, adopt or issue the Bonds and to perform all of its obligations under the Resolution, the Formation Documents and the District Documents; (iii) the District has obtained all approvals, consents, authorizations, elections and orders of or filings or registrations with any State governmental authority, board, agency or commission having jurisdiction which constitute a condition precedent to the levy of the foregoingSpecial Tax, wherein an unfavorable decision, ruling or finding would materially adversely affect the validly or enforceability issuance of the Indenture Bonds or the performance by the District of its obligations thereunder or under the Indenture, except that no opinion need be expressed regarding compliance with blue sky or other securities laws or regulations; (iv) the Board of Supervisors has duly and validly adopted the Resolution, the Formation Documents and the resolution authorizing the issuance of the Bonds at meetings of the Board of Supervisors which were called, held and conducted pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout, and the Resolution and the Formation Documents are now in full force and effect and have not been amended since its adoption in the case of the Resolution and the date of recordation of the Notice of Special Tax Lien in the case of the Formation Documents; and (v) the District has duly authorized, executed and delivered the District Documents and the Bonds and has duly authorized the preparation and delivery of the Official Statement, and the District Documents and the Bonds constitute legal, valid and binding agreements of the District, enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights in general and to the application of equitable principles if equitable remedies are sought;
(8) An opinion of ▇▇▇▇▇ ▇▇▇▇, A Professional Law Corporation, counsel to the Underwriter, in form and substance acceptable to the Underwriter, addressed to the Underwriter, to the effect that:
(a) the Bonds are exempt from registration under the Securities Act of 1933, as amended, and the Indenture is exempt from qualification under the Trust Indenture Act of 1939, as amended.
(b) during the course of its work on this matter, no facts have come to its attention that have caused it to believe that the Official Statement (except for the following items, which it may expressly exclude from the scope of this sentence: any financial and statistical data, forecasts, numbers, estimates, assumptions, expressions of opinion, and information concerning the Depository Trust Company and the book-entry system for the Bonds, that is contained or incorporated by reference in the Official Statement, and the appendices to the Official Statement) as of the date of the Official Statement or the date hereof contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(9) A certificate dated the Closing Date of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Associates, Inc. (“Taussig”) in substantially the form and effect of Exhibit B;
(10) A certificate of the District dated the Closing Date, in a form acceptable to Bond Counsel, that the Bonds are not arbitrage bonds within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended;
(11) A certificate of U.S. Bank National Association dated the Closing Date in form and substance reasonably acceptable to the Underwriter and Bond Counsel, with regards to its role as Trustee under the Indenture and the Continuing Disclosure Agreement, and as Escrow Bank under the Escrow Agreement;
(12) An opinion of counsel to U.S. Bank National Association, with regards to its role as Trustee under the Indenture and the Continuing Disclosure Agreement, and as Escrow Bank under the Escrow Bank Agreement, dated the Closing Date and addressed to the Underwriter, the County and the District, in form and substance satisfactory acceptable to the Underwriter and Bond Counsel;
(1113) Evidence reasonably acceptable to the Underwriter that, except as otherwise disclosed in the Official Statement, the County and its affiliated entities have not, during the past five years, failed to comply in any material respect with a previous undertaking pursuant to Rule 15c2-12.
(14) A certificate copy of the report prepared by the Verification Agent, verifying sufficiency of the amounts held in the Escrow BankFund established under the Escrow Agreement.
(15) A defeasance opinion of Bond Counsel, dated the Closing Date and signed by an authorized addressed to the District and the Underwriter, relating to the Prior Bonds in such form as may be acceptable to the Underwriter.
(16) Such additional legal opinions, certificates, instruments and other documents as the Underwriter may reasonably request to evidence the truth and accuracy, as of the Escrow Bank, to the effect that:
(i) The Escrow Bank is a duly organized date hereof and existing national banking association in good standing under the laws as of the United States of America and has all necessary power and authority to enter into and perform its duties under the Escrow Agreement;
(ii) The Escrow Bank is duly authorized to enter into the Escrow Agreement and has duly executed and delivered the Escrow Agreement;
(iii) The execution and delivery Closing Date, of the Escrow Agreement statements and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Escrow Bank’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Escrow Bank is subject or by which it is or may be bound; provided, however, the Escrow Bank need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(iv) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Escrow Bank’s knowledge, threateinfor
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to accept delivery of and pay for the Bonds on the Closing Date shall be subject, at the option of the Underwriter, to the accuracy in all material respects of the representations, representations and warranties and agreements on the part of the Community Facilities District contained herein as of the date hereof and as of the Closing Dateherein, to the accuracy in all material respects of the statements of the officers and other officials of the Community Facilities District made in any certificates or other documents furnished pursuant to the provisions hereof, and to the performance by the Community Facilities District of its their obligations to be performed hereunder at or prior to the Closing Date Date, and in reliance upon the representations and covenants of Lennar contained in the certificate(s) delivered as of the Closing Date, and to the following additional conditions:
(a) A. At the Closing Date, the Official StatementCommunity Facilities District Resolutions, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement Community Facilities District Documents shall be in full force and effect in the form heretofore submitted to the Underwriter, with only such changes as shall be agreed to in writing by the Underwritereffect, and there shall have been taken in connection with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, shall be necessary and appropriate;
(b) At the Closing Date, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter;, and there shall have been taken in connection therewith, with the issuance of the Bonds and with the Bonds, and with the transactions contemplated thereby, and by this Purchase Agreement, all such actions as, in the opinion of Bond Counsel, shall be necessary and appropriate.
(c) Between the date hereof and B. At the Closing Date, the market price or marketability, at the initial offering prices set forth except as described in the Preliminary Official Statement, of the Bonds City shall not have been materially adversely affectedbe, in the judgment of the Underwriter, by reason of any of the following:
(1) legislation shall have been enacted by the Congress of the United States or the Legislature of the State of California or favorably reported thereto for passage by any Committee to which such legislation has been referred for consideration or be pending before any such Committee or shall have been recommended respect material to the Congress transactions referred to herein or contemplated hereby, in breach of the United States for passage by the President of the United States or recommended to the Legislature of the State of California for passage by the Governor in default under, any law or administrative rule or regulation of the State of California, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the City is a decision shall have been rendered by a court party or is otherwise subject or bound, and the performance of the United States, including the Tax Court conditions precedent to be performed hereunder will not conflict with or constitute a breach of the United States, or default under any applicable law or administrative rule or regulation of the State of California, or a ruling or an official release shall have been made or a regulation shall have been proposed or made by the Treasury Department of the United States or the Internal Revenue Service or other federal or State of California authority having jurisdiction over tax matters, with respect to federal or State of California taxation upon revenues or other income of the District or upon interest on obligations of the general character of the Bonds, or other actions or events shall have transpired that would, in the reasonable judgment of the Underwriter, have the purpose or effect, directly or indirectly, of changing the federal or State of California tax consequences of any of the transactions contemplated in connection herewith and that in the reasonable judgment of the Underwriter, affects materially and adversely (i) the market price or marketability of the Bonds or (ii) the ability of the Underwriter to enforce contracts for the sale of the Bonds;
(2) legislation shall have been enacted or introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court of competent jurisdiction or by the Tax Court of the United States, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying obligations, are not exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), that the Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), or that the issuance, offering or sale of the Bonds, including any or all underlying obligations, is or would be in violation of the federal securities laws as amended and then in effect or that suspends the use of the Official Statement or any supplement thereto or any proceeding for such purpose shall have been initiated or threatened in any such court or by any such authority;
(3) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the City is a national emergency party or war is otherwise subject or bound, in any manner which would materially and adversely affect the engagement performance of the conditions precedent to be performed by the City hereunder.
C. At the Closing Date, except as described in major hostilities by the Preliminary Official Statement, the Community Facilities District shall not be, in any respect material to the transactions referred to herein or contemplated hereby, in breach of or in default under, any law or administrative rule or regulation of the State of California, the United States of America, or the occurrence of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other national emergency instrument to which the Community Facilities District is a party or calamity relating to is otherwise subject or bound, and the effective operation performance by the Community Facilities District of its obligations under the government Bonds, the Community Facilities District Resolutions, the Indenture, and any other instruments contemplated by any of or such documents, and compliance with the financial community in the United States;
(4) the declaration provisions of a general banking moratorium by federal, New York or California authoritieseach thereof, or the general suspension performance of trading on the conditions precedent to be performed hereunder, will not conflict with or constitute a breach of or default under any national securities exchange;
(5) applicable law or administrative rule or regulation of the imposition State of California, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Community Facilities District is a party or is otherwise subject or bound, in any manner which would materially and adversely affect the performance by the New York Stock Exchange or other national securities exchangeCommunity Facilities District of its obligations under the Indenture, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations the performance of the general character of conditions precedent to be performed by the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, Underwriter;Community Facilities District hereunder.
(6) the withdrawal or downgrading of any rating of the Bonds by a national rating agency or notice having been given by a national rating agency of any intended or potential downgrading or other review or possible change in such rating that does not indicate the direction of such possible change; or
(7) any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material respect any statement or D. The information contained in the Official StatementStatement is, as of the Closing Date and as of the date of any supplement or has amendment thereto pursuant hereto, true and correct in all material respects and does not, as of the effect that Closing Date or as of the Official Statement contains date of any supplement or amendment thereto, contain any untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
E. Between the date hereof and the Closing Date, the market price or marketability, at the initial offering prices set forth on the cover page of the Official Statement, of the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds, shall not have been materially adversely affected, in the reasonable judgment of the Underwriter (8) evidenced by a written notice to the Community Facilities District terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
1. Legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration, or a decision rendered by a court established under Article III of the Constitution of the United States of America or by the Tax Court of the United States of America, or an order, ruling, regulation (final, temporary or proposed), press release, statement release or other form of notice issued or made by or on behalf of the Treasury Department of the United States, States of America or the Internal Revenue Service Service, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon such interest as would be received by any owners of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
2. Legislation introduced in or enacted (or resolution passed) by the Congress or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission (“SEC”), or any other governmental agency relating to Circular 230 (31 C.F.R. part 10) is issued, made or proposed, that, in the judgment having jurisdiction of the Underwritersubject matter, affects materially and adversely to the market for the Bonds or the market price generally of effect that obligations of the general character of the Bonds.
(d) At , including any or prior to the Closing Dateall underlying arrangements, the Underwriter shall have received the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) Copies of the Indenture, the Disclosure Certificate and the Escrow Agreement, duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to in writing by the Underwriter;
(2) An approving opinion, dated the Closing Date and addressed to the District, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, in substantially the form attached as Appendix D to the Official Statement, together with a letter are not exempt from said Bond Counsel authorizing the Underwriter to rely on said opinion, and a supplemental opinion in form acceptable to the Underwriter and the District, dated the Closing Date and addressed to the Underwriter and the District, to the effect that:
(i) the Bond Purchase Agreement has been duly executed and delivered by the District and, assuming due authorization, execution and delivery by the Underwriter, is a valid and binding obligation of the District, subject to laws relating to bankruptcy, insolvency, reorganization arrangement, fraudulent conveyance, moratorium registration under or other laws affecting creditors’ rights generally, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against a local health care district in the State of California;
(ii) the statements contained in the Official Statement in the sections thereof entitled: “THE BONDS,” “SECURITY FOR THE BONDS,” “TAX MATTERS,” “EXHIBIT C—SUMMARY OF PRINCIPAL LEGAL DOCUMENTS,” and “EXHIBIT D—FORM OF FINAL OPINION OF BOND COUNSEL,” insofar as such statements expressly summarize certain provisions of the Bonds, the Indenture, the Disclosure Certificate, the Escrow Agreement and Bond Counsel’s opinion concerning certain tax matters are accurate in all material respects; and
(iii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and or that the Indenture is not exempt from qualification as an indenture pursuant to under or other requirements of the Trust Indenture Act of 1939, as amended.
(3) An opinion dated , or that the Closing Date and addressed to the District and the Underwriterissuance, offering or sale of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the District, in substantially the form attached hereto as Exhibit C.
(4) A certificate obligations of the Executive Director of the District, or such other officer as is acceptable to the Underwriter, dated the Closing Date, to the effect that the representations and agreements of the District contained herein are true and correct in all material respects as of the Closing Date, and:
(i) no litigation is pending or, to the knowledge of such officer, threatened
(a) to restrain or enjoin the issuance or delivery of any of the Bonds or the collection of Revenues pledged under the Indenture, (b) in any way contesting or affecting the authority for the issuance of the Bonds or the validity general character of the Bonds, the Indentureincluding any or all underlying arrangements, the Disclosure Certificate as contemplated hereby or this Bond Purchase Agreement, or (c) in any way contesting the existence or powers of the District;
(ii) no event affecting the District has occurred since the date of by the Official Statement which or otherwise is or would cause as be in violation of the Closing Date federal securities laws as amended and then in effect;
3. A general suspension of trading on the New York Stock Exchange or other major exchange shall be in force, 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 any such exchange, whether by virtue of determination by that exchange or by order of the SEC or any other governmental authority having jurisdiction;
4. The introduction, proposal or enactment of any amendment to the federal or California Constitution or any action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the Community Facilities District, its property, income, securities (or interest thereon), the validity or enforceability of Special Taxes, or the ability of the Community Facilities District to construct or acquire the improvements as contemplated by the Formation Documents, the Community Facilities District Documents or the Official Statement or the right of any owner of the property within the Community Facilities District to develop such property in the manner described in the Official Statement, or the ability of the Community Facilities District to issue the Bonds as contemplated by the Indenture and the Official Statement;
5. Any event occurring, or information becoming known which, in the judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Preliminary Official Statement to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements and information therein, in the light of the circumstances under which they were made, not misleading;
(iii) since June 30, 2021, no material and adverse change has occurred in the financial position or results of operations of the District other than as is set forth in the Official Statement;
(iv) the District has not, since June 30, 2021, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Official Statement; and
(v) no proceedings are pending or threatened (1) in any way contesting or affecting the District’s status as a local health care district or (2) to subject any income of the District to federal income taxation;
(5) Satisfactory evidence that the Bonds have been rated “ ” or better by ▇▇▇▇▇’▇ Investors Service;
(6) An opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Salmon, P.L.C., as disclosure counsel (“Disclosure Counsel”), addressed to the District and the Underwriter, to the effect that the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and to the effect that, based upon its participation in the preparation of the Official Statement as Disclosure Counsel and without having undertaken to determine independently the fairness, accuracy or completeness of the statements contained in the Official Statement, such counsel or has no reason to believe that, as of the date of effect that the Preliminary Official Statement or the Official Statement or as of the date of Closing, the Official Statement (excluding therefrom the reports, financial and statistical data and forecasts therein, the information with respect to DTC and the book-entry system and the information included in Appendices thereto, as to which no opinion need be expressed) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
6. Any national securities exchange, the Comptroller of the Currency, or any other governmental authority, shall impose as to the Bonds, or obligations of the general character of the Bonds, any material restrictions not now in force, or increase materially those now in force, with respect to the extension of credit by, or the charge to the net capital requirements of, the Underwriter;
7. There shall have occurred (71) an outbreak or escalation of hostilities or the declaration by the United States of a national emergency or war, (2) any other calamity or crisis in the financial markets of the United States or elsewhere, or (3) the sovereign debt rating of the United States is downgraded by any major credit rating agency or a payment default occurs on United States Treasury obligations;
8. Except as disclosed in or contemplated by the Official Statement, any material adverse change in the affairs of the City or Community Facilities District shall have occurred;
9. Any event or circumstance shall exist that either makes untrue or incorrect in any material respect any statement or information in the Official Statement (other than any statement provided by the Underwriter) or is not reflected in the Official Statement but should be reflected therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and, in either such event, the Community Facilities District refuses to permit the Official Statement to be supplemented to supply such statement or information, or the effect of the Official Statement as so supplemented is to materially adversely affect the market price or marketability of the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds;
10. A general banking moratorium shall have been declared by federal or State authorities having jurisdiction and be in force;
11. A material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred;
12. Any new restriction on transactions in securities materially affecting the market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a charge to the net capital requirements of, underwriters shall have been established by the New York Stock Exchange, the SEC, any other federal or State agency or the Congress of the United States, or by Executive Order;
13. A decision by a court of the United States shall be rendered, or a stop order, release, regulation or no-action letter by or on behalf of the SEC or any other governmental agency having jurisdiction of the subject matter shall have been issued or made, to the effect that the issuance, offering or sale of the Securities, including the underlying obligations as contemplated by this Purchase Agreement or by the Official Statement, or any document relating to the issuance, offering or sale of the Securities, is or would be in violation of any provision of the federal securities laws at the Closing Date, including the Securities Act, the Exchange Act and the Trust Indenture Act;
14. Any proceeding shall have been commenced or be threatened in writing by the Securities and Exchange Commission against the City or the Community Facilities District; or
15. The commencement of any Action.
F. At or prior to the Closing Date, the Underwriter shall have received a counterpart original or certified copy of the Resolution authorizing the execution and delivery of the Bondsfollowing documents, the Indenture, the Disclosure Certificate, the Bond Purchase Agreement, the Escrow Agreement and the Official Statement and ratifying the distribution of the Preliminary Official Statement and authorizing distribution of the Official Statement;
(8) An opinion of counsel to the Trustee in each case satisfactory in form and substance satisfactory to the Underwriter and Bond CounselUnderwriter:
1. The Official Statement, executed on behalf of the Community Facilities District by an authorized officer;
(9) A 2. The Indenture, duly executed and delivered by the Community Facilities District and the Trustee;
3. The Community Facilities District Resolutions and the other Formation Documents, and the Community Facilities District Documents, together with a certificate dated as of the TrusteeClosing Date of the City Clerk to the effect that the Community Facilities District Resolutions and the Ordinance are true, correct and complete copies of the ones duly adopted by the City Council;
4. The Continuing Disclosure Certificate executed and delivered by the Community Facilities District and Special District Financing & Administration, LLC, as dissemination agent;
5. An unqualified approving opinion for the Bonds, dated the Closing Date and signed by addressed to the Community Facilities District, of Bond Counsel, to the effect that the Bonds are the valid, legal and binding obligations of the Community Facilities District and that the interest thereon is excluded from gross income for federal income tax purposes and exempt from personal income taxes of the State of California, in substantially the form included as an authorized appendix to the Official Statement, together with a letter of Bond Counsel, dated the Closing Date and addressed to the Underwriter of and the Trustee, to the effect that such opinion addressed to the Community Facilities District may be relied upon by the Underwriter and the Trustee to the same extent as if such opinion was addressed to it;
6. A supplemental opinion or opinions of Bond Counsel dated the Closing Date and addressed to the Underwriter to the effect that:
(i) The Trustee is a this Purchase Agreement and the Continuing Disclosure Certificate have been duly organized executed and existing national banking association in good standing under delivered by the laws Community Facilities District and, assuming due authorization, execution and delivery by the other parties thereto, constitute the valid and binding obligations of the United States Community Facilities District, except to the extent that enforceability may be limited by moratorium, bankruptcy, reorganization, insolvency or other similar laws affecting creditors’ rights generally or by the exercise of America judicial discretion in accordance with general principles of equity or otherwise in appropriate cases and has all necessary power and authority to enter into and perform its duties under by limitations on legal remedies against public agencies in the IndentureState;
(ii) The Trustee is duly authorized the Bonds are not subject to enter into the registration requirements of the Securities Act of 1933, as amended, and the Indenture and has duly executed and delivered is exempt from qualification under the IndentureTrust Indenture Act of 1939, as amended;
(iii) The Bonds have been duly authenticated and delivered by the Trustee;
(iv) The execution and delivery statements contained in the Official Statement under the captions “INTRODUCTION – Source of Payment for the Bonds,” “INTRODUCTION – Description of the Indenture and Bonds,” “INTRODUCTION – Tax Exemption,” “INTRODUCTION – Parity Bonds for Refunding Purposes Only,” “THE BONDS,” “SOURCES OF PAYMENT FOR THE BONDS,” (except information under the authentication and delivery of the Bonds and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Trustee’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement captions “– Special Taxes” as to which the Trustee no opinion is subject or by which it is or expressed), “TAX EXEMPTION,” Appendix C – “FORM OF OPINION OF BOND COUNSEL” and Appendix E - “SUMMARY OF THE INDENTURE,” excluding any material that may be bound; providedtreated as included under such captions by cross-reference or reference to other documents or sources, however, the Trustee need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(v) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Trustee’s knowledge, threatened against the Trustee, affecting the existence of the Trustee, or the entitlement of its officers to their respective offices or seeking to prohibit, restrain or enjoin the execution and delivery of the Bonds or the collection of revenues pledged or to be pledged to pay the principal, redemption premium, if any, and interest represented by the Bonds, or the pledge thereof, or in any way contesting or affecting the validity or enforceability of the Indenture, or the Bonds; or contesting the power or authority of the Trustee to enter into, adopt or perform its obligations under any of the foregoing, wherein an unfavorable decision, ruling or finding would materially adversely affect the validly or enforceability of the Indenture or the Bonds;
(10) An opinion of counsel to the Escrow Bank in form and substance satisfactory to the Underwriter and Bond Counsel;
(11) A certificate of the Escrow Bank, dated the Closing Date and signed by an authorized Underwriter of the Escrow Bank, to the effect that:
(i) The Escrow Bank is a duly organized and existing national banking association in good standing under the laws of the United States of America and has all necessary power and authority to enter into and perform its duties under the Escrow Agreement;
(ii) The Escrow Bank is duly authorized to enter into the Escrow Agreement and has duly executed and delivered the Escrow Agreement;
(iii) The execution and delivery of the Escrow Agreement and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Escrow Bank’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Escrow Bank is subject or by which it is or may be bound; provided, however, the Escrow Bank need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(iv) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Escrow Bank’s knowledge, threateins
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligation Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of the City contained herein. The obligations of the Underwriter to accept delivery of and pay for the Bonds on the date of the Closing Date shall be subject, at the option of the Underwriter, to the accuracy in all material respects of the representations, warranties and agreements on the part of the District contained herein as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the officers and other officials of the District City, as well as authorized representatives of the City Attorney, Bond Counsel, Disclosure Counsel and the Trustee made in any certificates or other documents furnished pursuant to the provisions hereof, and to the performance by the District City of its obligations to be performed hereunder at or prior to the Closing Date date of the Closing, and to the following additional conditions:
(a) The representations, warranties and covenants of the City contained herein shall be true, complete and correct at the date hereof and at the time of the Closing, as if made on the date of the Closing;
(b) At the Closing Datetime of Closing, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement Legal Documents shall be in full force and effect in as valid and binding agreements between or among the form heretofore submitted to the Underwriter, with only such changes as shall be agreed to in writing by the Underwritervarious parties thereto, and there shall have been taken in connection with the issuance of Legal Documents and the Bonds Preliminary Official Statement and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, shall be necessary and appropriate;
(b) At the Closing Date, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement Statement shall not have been amended, modified or supplemented, supplemented except as may have been agreed to in writing by the Underwriter, and all such reasonable actions as, in the opinion of Bond Counsel, shall reasonably deem necessary in connection with the transactions contemplated hereby;
(c) Between At the time of the Closing, no default shall have occurred or be existing under the Legal Documents, or any other agreement or document pursuant to which any of the City’s financial obligations were executed and delivered, and the City shall not be in default in the payment of principal or interest with respect to any of its financial obligations, which default would result in any material adverse change to the financial condition of the City or adversely impact its ability to make payment of principal or redemption price of and interest on the Bonds when due;
(d) In recognition of the desire of the City and the Underwriter to effect a successful public offering of the Bonds, and in view of the potential adverse impact of any of the following events on such a public offering, this Purchase Agreement shall be subject to termination in the absolute discretion of the Underwriter by notification, in writing, to the City prior to delivery of and payment for the Bonds, if at any time prior to such time, regardless of whether any of the following statements of fact were in existence or known of on the date hereof of this Purchase Agreement:
(i) there shall have occurred (1) an outbreak or escalation of hostilities or the declaration by the United States of a national emergency or war or (2) any other calamity or crisis in the financial markets of the United States or elsewhere or the escalation of such calamity or crisis; or
(ii) a general banking moratorium shall have been declared by federal, State or New York authorities; or
(iii) a general suspension of trading on the New York Stock Exchange or other major exchange shall be in force, 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 any such exchange, whether by virtue of determination by that exchange or by order of the Closing Date, SEC or any other governmental authority having jurisdiction; or
(iv) any event shall occur which makes untrue any statement or results in an omission to state a material fact necessary to make the market price or marketability, at statements in the initial offering prices set forth in Preliminary Official Statement and the Official Statement, in the light of the circumstances under which they were made, not misleading, which event, in the reasonable opinion of the Underwriter would materially or adversely affect the ability of the Underwriter to market the Bonds; or
(v) any legislation, ordinance, rule or regulation shall be introduced in, or be enacted by any governmental body, department or agency of the State, or a decision by any court of competent jurisdiction within the State shall be rendered which materially adversely affects the market price of the Bonds; or
(vi) the marketability of the Bonds shall not have been materially adversely affectedor the market price thereof, in the judgment reasonable opinion of the Underwriter, has been materially adversely affected by reason of any an amendment to the Constitution of the following:
(1) United States of America or by any legislation shall have been enacted in or by the Congress of the United States of America or by the State, or the Legislature amendment of legislation pending as of the State date of California this Purchase Agreement in the Congress of the United States of America, or favorably reported thereto the recommendation to Congress or endorsement for passage (by press release, other form of notice or otherwise) of legislation by the President of the United States of America, the Treasury Department of the United States of America, the Internal Revenue Service or the Chairman or ranking minority member of the Committee on Finance of the United States Senate or the Committee on Ways and Means of the United States House of Representatives, or the proposal for consideration of legislation by either such Committee or by any member thereof, or the presentment of legislation for consideration as an option by either such Committee, or by the staff of the Joint Committee on Taxation of the Congress of the United States of America, or the favorable reporting for passage of legislation to either House of the Congress of the United States of America by a Committee of such House to which such legislation has been referred for consideration consideration; or
(vii) an order, decree or be pending before any such Committee or injunction shall have been recommended to the Congress of the United States for passage issued by the President of the United States or recommended to the Legislature of the State of California for passage by the Governor of the State of California, or a decision shall have been rendered by a court of the United States, including the Tax Court of the United States, or of the State of California, or a ruling or an official release shall have been made or a regulation shall have been proposed or made by the Treasury Department of the United States or the Internal Revenue Service or other federal or State of California authority having jurisdiction over tax matters, with respect to federal or State of California taxation upon revenues or other income of the District or upon interest on obligations of the general character of the Bonds, or other actions or events shall have transpired that would, in the reasonable judgment of the Underwriter, have the purpose or effect, directly or indirectly, of changing the federal or State of California tax consequences of any of the transactions contemplated in connection herewith and that in the reasonable judgment of the Underwriter, affects materially and adversely (i) the market price or marketability of the Bonds or (ii) the ability of the Underwriter to enforce contracts for the sale of the Bonds;
(2) legislation shall have been enacted or introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court of competent jurisdiction or by the Tax Court of the United Statesjurisdiction, or an order, ruling, regulation (final, temporary or proposed) or ), official statement or other form of notice or communication issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that that: (i) obligations of the general character of the Bonds, or the Bonds, including any or all underlying obligationsarrangements, are not exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”)amended, or that the Indenture Trust Agreement is not exempt from qualification under the Trust Indenture Act of 1939; or (ii) the issuance, as amended (offering or sale of obligations of the “Trust Indenture Act”)general character of the Bonds, or that the issuance, offering or sale of the Bonds, including any or all underlying obligations, as contemplated hereby or by the Preliminary Official Statement and the Official Statement, is or would be in violation of the federal securities laws as amended and then in effect effect; or
(viii) legislation shall be introduced, by amendment or that suspends otherwise, or be enacted by the use House of Representatives or the Senate of the Official Statement or any supplement thereto or any proceeding for such purpose shall have been initiated or threatened in any such court or by any such authority;
(3) the outbreak or escalation Congress of hostilities involving the United States or the declaration by the United States of America, or a national emergency or war or the engagement in major hostilities decision by a court of the United States of America shall be rendered, or a stop order, ruling, regulation or official statement by or on behalf of the occurrence Securities and Exchange Commission or other governmental agency having jurisdiction of the subject matter shall be made or proposed, to the effect that the issuance, offering or sale of obligations of the general character of the Bonds, as contemplated hereby or by the Preliminary Official Statement and the Official Statement, is or would be in violation of any other national emergency or calamity relating to the effective operation provision of the government Securities Act of or the financial community 1933, as amended and as then in the United States;
(4) the declaration of a general banking moratorium by federal, New York or California authoritieseffect, or the general suspension Securities Exchange Act of trading on any national securities exchange;
(5) the imposition by the New York Stock Exchange or other national securities exchange1934, as amended and as then in effect, or any governmental authoritythe Trust Indenture Act of 1939, as amended and as then in effect, or with the purpose or effect of any material restrictions not now in force with respect to otherwise prohibiting the issuance, offering or sale of the Bonds or obligations of the general character of the Bonds, as contemplated hereby or by the Preliminary Official Statement and the Official Statement; or
(ix) additional material restrictions not in force as of the date hereof shall have been imposed upon trading in securities generally by any governmental authority or by any national securities exchange, which, in the Underwriter’s reasonable opinion, materially adversely affects the marketability or market price of the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds; or
(x) A material disruption in securities generallysettlement, payment or clearance services affecting the Bonds shall have occurred; or
(xi) the New York Stock Exchange, or other national securities exchange or association or any governmental authority, shall impose as to the Bonds, or obligations of the general character of the Bonds, any material increase of any such restrictions not now in force, including or increase materially those relating now in force, with respect to the extension of credit by, by or the charge to the net capital requirements of, Underwriter;of broker dealers; or
(6xii) any proceeding shall be pending or threatened by the withdrawal Securities and Exchange Commission against the City; or
(xiii) trading in securities on the New York Stock Exchange or downgrading the American Stock Exchange shall have been suspended or limited or minimum prices have been established on either such exchange which, in the Underwriter’s reasonable opinion, materially adversely affects the marketability or market price of the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds; or
(xiv) any rating of the Bonds or the rating of any general fund obligations of the City shall have been downgraded, suspended or withdrawn or placed on negative outlook or negative watch by a national rating agency or notice having been given by a national rating agency of any intended or potential downgrading or other review or possible change in such rating that does not indicate the direction of such possible change; or
(7) any event occurringservice, or information becoming known which, in the reasonable judgment opinion of the Underwriter, makes untrue in any material respect any statement or information contained in materially adversely affects the Official Statement, or has the effect that the Official Statement contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light market price of the circumstances under which they were made, not misleading.Bonds; or
(8) an order, ruling, regulation (final, temporary or proposed), press release, statement or other form xv) the marketability of notice by or on behalf of the Treasury Department of the United States, the Internal Revenue Service or other governmental agency relating to Circular 230 (31 C.F.R. part 10) is issued, made or proposed, that, in the judgment of the Underwriter, affects materially and adversely the market for the Bonds or the market price generally of obligations thereof, in the reasonable opinion of the general character Underwriter, has been materially and adversely affected by disruptive events, occurrences or conditions in the securities or debt markets; or
(xvi) any action shall have been taken by any government in respect of its monetary affairs which, in the reasonable opinion of the Underwriter, has a material adverse effect on the United States securities market, rendering the marketing and sale of the Bonds, or enforcement of sale contracts with respect thereto impracticable; or
(xvii) the commencement of any action, suit or proceeding described in Section 6(m).
(de) At at or prior to the Closing DateClosing, the Underwriter shall receive or have received the following documents, in each case satisfactory to the reasonable satisfaction, in form and substance to the Underwriter:
(1) Copies substance, of the Indenture, the Disclosure Certificate Underwriter and the Escrow Agreement, duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to in writing by the Underwriter;
(2) An approving opinion, dated the Closing Date and addressed to the District, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Irvine, California (“Underwriter’s Counsel, in substantially the form attached as Appendix D to the Official Statement, together with a letter from said Bond Counsel authorizing the Underwriter to rely on said opinion, and a supplemental opinion in form acceptable to the Underwriter and the District, dated the Closing Date and addressed to the Underwriter and the District, to the effect that:”):
(i) the Bond Purchase Agreement has been duly executed and delivered by the District and, assuming due authorization, execution and delivery by the Underwriter, is a valid and binding obligation of the District, subject to laws relating to bankruptcy, insolvency, reorganization arrangement, fraudulent conveyance, moratorium or other laws affecting creditors’ rights generally, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against a local health care district in the State of California;
(ii) the statements contained in the Official Statement in the sections thereof entitled: “THE BONDS,” “SECURITY FOR THE BONDS,” “TAX MATTERS,” “EXHIBIT C—SUMMARY OF PRINCIPAL LEGAL DOCUMENTS,” and “EXHIBIT D—FORM OF FINAL OPINION OF BOND COUNSEL,” insofar as such statements expressly summarize certain provisions of the Bonds, the Indenture, the Disclosure Certificate, the Escrow Agreement and Bond Counsel’s opinion concerning certain tax matters are accurate in all material respects; and
(iii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification as an indenture pursuant to the Trust Indenture Act of 1939, as amended.
(3) An opinion dated the Closing Date and addressed to the District and the Underwriter, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the District, in substantially the form attached hereto as Exhibit C.
(4) A certificate of the Executive Director of the District, or such other officer as is acceptable to the Underwriter, dated the Closing Date, to the effect that the representations and agreements of the District contained herein are true and correct in all material respects as of the Closing Date, and:
(i) no litigation is pending or, to the knowledge of such officer, threatened
(a) to restrain or enjoin the issuance or delivery of any of the Bonds or the collection of Revenues pledged under the Indenture, (b) in any way contesting or affecting the authority for the issuance of the Bonds or the validity of the Bonds, the Indenture, the Disclosure Certificate or this Bond Purchase Agreement, or (c) in any way contesting the existence or powers of the District;
(ii) no event affecting the District has occurred since the date of the Official Statement which would cause as of the Closing Date any statement or information contained in the Official Statement to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements and information therein, in the light of the circumstances under which they were made, not misleading;
(iii) since June 30, 2021, no material and adverse change has occurred in the financial position or results of operations of the District other than as is set forth in the Official Statement;
(iv) the District has not, since June 30, 2021, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Official Statement; and
(v) no proceedings are pending or threatened (1) in any way contesting or affecting the District’s status as a local health care district or (2) to subject any income of the District to federal income taxation;
(5) Satisfactory evidence that the Bonds have been rated “ ” or better by ▇▇▇▇▇’▇ Investors Service;
(6) An opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Salmon, P.L.C., as disclosure counsel (“Disclosure Counsel”), addressed to the District and the Underwriter, to the effect that the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and to the effect that, based upon its participation in the preparation of the Official Statement as Disclosure Counsel and without having undertaken to determine independently the fairness, accuracy or completeness of the statements contained in the Official Statement, such counsel has no reason to believe that, as of the date of the Official Statement or as of the date of Closing, the Official Statement (excluding therefrom the reports, financial and statistical data and forecasts therein, the information with respect to DTC and the book-entry system and the information included in Appendices thereto, as to which no opinion need be expressed) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(7) A certified copy of the Resolution authorizing the execution and delivery default judgment, dated , 20 , entered in favor of the Bonds, the Indenture, the Disclosure Certificate, the Bond Purchase Agreement, the Escrow Agreement and the Official Statement and ratifying the distribution City in connection with City of the Preliminary Official Statement and authorizing distribution of the Official Statement;
(8) An opinion of counsel to the Trustee in form and substance satisfactory to the Underwriter and Bond Counsel;
(9) A certificate of the Trustee, dated the Closing Date and signed by an authorized Underwriter of the Trustee, to the effect that:
(i) The Trustee is a duly organized and existing national banking association in good standing under the laws of the United States of America and has all necessary power and authority to enter into and perform its duties under the Indenture;
(ii) The Trustee is duly authorized to enter into the Indenture and has duly executed and delivered the Indenture;
(iii) The Bonds have been duly authenticated and delivered by the Trustee;
(iv) The execution and delivery of the Indenture and the authentication and delivery of the Bonds and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Trustee’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Trustee is subject or by which it is or may be bound; provided, however, the Trustee need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(v) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Trustee’s knowledge, threatened against the Trustee, affecting the existence of the Trustee, or the entitlement of its officers to their respective offices or seeking to prohibit, restrain or enjoin the execution and delivery of the Bonds or the collection of revenues pledged or to be pledged to pay the principal, redemption premium, if any, and interest represented by the Bonds, or the pledge thereof, or in any way contesting or affecting the validity or enforceability of the Indenture, or the Bonds; or contesting the power or authority of the Trustee to enter into, adopt or perform its obligations under any of the foregoing, wherein an unfavorable decision, ruling or finding would materially adversely affect the validly or enforceability of the Indenture or the Bonds;
(10) An opinion of counsel to the Escrow Bank in form and substance satisfactory to the Underwriter and Bond Counsel;
(11) A certificate of the Escrow Bank, dated the Closing Date and signed by an authorized Underwriter of the Escrow Bank, to the effect that:
(i) The Escrow Bank is a duly organized and existing national banking association in good standing under the laws of the United States of America and has all necessary power and authority to enter into and perform its duties under the Escrow Agreement;
(ii) The Escrow Bank is duly authorized to enter into the Escrow Agreement and has duly executed and delivered the Escrow Agreement;
(iii) The execution and delivery of the Escrow Agreement and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Escrow Bank’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Escrow Bank is subject or by which it is or may be bound; provided, however, the Escrow Bank need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(iv) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Escrow Bank’s knowledge, threateChula Vista v.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to accept delivery of and pay for the Bonds on the Closing Date shall be subject, at the option of the Underwriter, to the accuracy in all material respects of the representations, representations and warranties and agreements on the part of the District Authority contained herein as of the date hereof and as of the Closing Dateherein, to the accuracy in all material respects of the statements of the officers and other officials of the District City, the Authority and the Agency made in any certificates or other documents furnished pursuant to the provisions hereof, and to the performance by the District Authority, the City and the Agency of its obligations to be performed hereunder at or prior to the Closing Date and and, to the following additional conditions:
(a) At the Closing Date, the Official StatementJPA Formation Agreement, the Bond Resolution, the Indenture, this Bond Purchase the Escrow Agreement, the Continuing Disclosure Certificate and the Escrow this Purchase Agreement shall be in full force and effect in the form heretofore submitted to the Underwriter, with only such changes as shall be agreed to in writing by the Underwritereffect, and there shall have been taken in connection with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, shall be necessary and appropriate;
(b) At the Closing Date, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter;, and there shall have been taken in connection therewith, with the issuance of the Bonds, and with the transactions contemplated thereby, and by this Purchase Agreement, all such actions as, in the opinion of Bond Counsel, shall be necessary and appropriate.
(b) At the Closing Date, except as was described in the Preliminary Official Statement, the Authority shall not be, in any respect material to the transactions referred to herein or contemplated hereby, in breach of or in default under, any law or administrative rule or regulation of the State of California, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Authority is a party or is otherwise subject or bound, and the performance by the Authority of its obligations under the Bonds, the Indenture, the Escrow Agreement, this Purchase Agreement and any other instruments contemplated by any of such documents, and compliance with the provisions of each thereof, will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State of California, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Authority is a party or is otherwise subject or bound, in any manner which would materially and adversely affect the performance by the Authority of its obligations under this Purchase Agreement, the Bonds, the Escrow Agreement or the Indenture.
(c) Except as set forth in Appendix thereto, theThe information contained in the Official Statement is, as of the Closing Date and as of the date of any supplement or amendment thereto pursuant hereto, true and correct in all material respects and does not, as of the Closing Date or as of the date of any supplement or amendment thereto pursuant hereto, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(d) Between the date hereof and the Closing Date, the market price or marketability, at the initial offering prices set forth in on the inside cover page of the Official Statement, of the Bonds shall not have been materially adversely affected, in affected (evidenced by a written notice to the judgment Authority terminating the obligation of the UnderwriterUnderwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
(1) legislation shall have been Legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or the Legislature of the State of California or favorably reported thereto for passage by any Committee to which such legislation has been referred for consideration or be pending before any such Committee or shall have been recommended to the Congress of the United States for passage by the President of the United States or recommended to the Legislature of the State of California for passage by the Governor of the State of California, or a decision shall have been rendered by a court of the United States, including the Tax Court of the United States, or of the State of California, or a ruling or an official release shall have been made or a regulation shall have been proposed or made by the Treasury Department of the United States or the Internal Revenue Service or other federal or State of California authority having jurisdiction over tax matters, with respect to federal or State of California taxation upon revenues or other income of the District or upon interest on obligations of the general character of the Bonds, or other actions or events shall have transpired that would, in the reasonable judgment of the Underwriter, have the purpose or effect, directly or indirectly, of changing the federal or State of California tax consequences of any of the transactions contemplated in connection herewith and that in the reasonable judgment of the Underwriter, affects materially and adversely (i) the market price or marketability of the Bonds or (ii) the ability of the Underwriter to enforce contracts for the sale of the Bonds;
(2) legislation shall have been enacted or introduced in the Congress or recommended for passage by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration, or a decision rendered by a court established under Article III of competent jurisdiction the Constitution of the United States of America or by the Tax Court of the United StatesStates of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department of the United States of America or the Internal Revenue Service, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon such interest as would be received by any owners of the Bonds;
(2) Legislation introduced in or official statement enacted (or resolution passed) by the Congress or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the BondsLocal Obligations, including any or all underlying obligationsarrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as amended (the “Securities Act”)amended, or that the Indenture is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”)amended, or that the issuance, offering or sale of obligations of the Bondsgeneral character of the Bonds or the Local Obligations, including any or all underlying obligationsarrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws as amended and then in effect or that suspends the use of the Official Statement or any supplement thereto or any proceeding for such purpose shall have been initiated or threatened in any such court or by any such authorityeffect;
(3) A general suspension of trading in securities on the outbreak New York Stock Exchange, or escalation a general banking moratorium declared by Federal, State of hostilities involving the United States New York or the declaration by the United States State of a national emergency or war or the engagement in major hostilities by the United States or the occurrence of any other national emergency or calamity relating California officials authorized to the effective operation of the government of or the financial community in the United Statesdo so;
(4) The introduction, proposal or enactment of any amendment to the declaration of a general banking moratorium by federal, New York Federal or California authoritiesConstitution or any action by any Federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the Authority, their property, income, securities (or interest thereon), or the general suspension ability of trading on any national securities exchangethe Authority to refund and defease the Refunded Bonds as contemplated by the Official Statement;
(5) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, Underwriter;
(6) the withdrawal or downgrading of any rating of the Bonds by a national rating agency or notice having been given by a national rating agency of any intended or potential downgrading or other review or possible change in such rating that does not indicate the direction of such possible change; or
(7) any Any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Preliminary Official Statement or in the Official Statement, or has the effect that the Preliminary Official Statement contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(8) an order, ruling, regulation (final, temporary or proposed), press release, statement or other form of notice by or on behalf of the Treasury Department of the United States, the Internal Revenue Service or other governmental agency relating to Circular 230 (31 C.F.R. part 10) is issued, made or proposed, that, in the judgment of the Underwriter, affects materially and adversely the market for the Bonds or the market price generally of obligations of the general character of the Bonds.
(d) At or prior to the Closing Date, the Underwriter shall have received the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) Copies of the Indenture, the Disclosure Certificate and the Escrow Agreement, duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to in writing by the Underwriter;
(2) An approving opinion, dated the Closing Date and addressed to the District, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, in substantially the form attached as Appendix D to the Official Statement, together with a letter from said Bond Counsel authorizing the Underwriter to rely on said opinion, and a supplemental opinion in form acceptable to the Underwriter and the District, dated the Closing Date and addressed to the Underwriter and the District, to the effect that:
(i) the Bond Purchase Agreement has been duly executed and delivered by the District and, assuming due authorization, execution and delivery by the Underwriter, is a valid and binding obligation of the District, subject to laws relating to bankruptcy, insolvency, reorganization arrangement, fraudulent conveyance, moratorium or other laws affecting creditors’ rights generally, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against a local health care district in the State of California;
(ii) the statements contained in the Official Statement in the sections thereof entitled: “THE BONDS,” “SECURITY FOR THE BONDS,” “TAX MATTERS,” “EXHIBIT C—SUMMARY OF PRINCIPAL LEGAL DOCUMENTS,” and “EXHIBIT D—FORM OF FINAL OPINION OF BOND COUNSEL,” insofar as such statements expressly summarize certain provisions of the Bonds, the Indenture, the Disclosure Certificate, the Escrow Agreement and Bond Counsel’s opinion concerning certain tax matters are accurate in all material respects; and
(iii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification as an indenture pursuant to the Trust Indenture Act of 1939, as amended.
(3) An opinion dated the Closing Date and addressed to the District and the Underwriter, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the District, in substantially the form attached hereto as Exhibit C.
(4) A certificate of the Executive Director of the District, or such other officer as is acceptable to the Underwriter, dated the Closing Date, to the effect that the representations and agreements of the District contained herein are true and correct in all material respects as of the Closing Date, and:
(i) no litigation is pending or, to the knowledge of such officer, threatened
(a) to restrain or enjoin the issuance or delivery of any of the Bonds or the collection of Revenues pledged under the Indenture, (b) in any way contesting or affecting the authority for the issuance of the Bonds or the validity of the Bonds, the Indenture, the Disclosure Certificate or this Bond Purchase Agreement, or (c) in any way contesting the existence or powers of the District;
(ii) no event affecting the District has occurred since the date of the Official Statement which would cause as of the Closing Date any statement or information contained in the Official Statement to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements and information therein, in the light of the circumstances under which they were made, not misleading;
(iii) since June 30, 2021, no material and adverse change has occurred in the financial position or results of operations of the District other than as is set forth in the Official Statement;
(iv) the District has not, since June 30, 2021, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Official Statement; and
(v) no proceedings are pending or threatened (1) in any way contesting or affecting the District’s status as a local health care district or (2) to subject any income of the District to federal income taxation;
(5) Satisfactory evidence that the Bonds have been rated “ ” or better by ▇▇▇▇▇’▇ Investors Service;
(6) An opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Salmon, P.L.C., as disclosure counsel (“Disclosure Counsel”), addressed to the District and the Underwriter, to the effect that the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and to the effect that, based upon its participation in the preparation of the Official Statement as Disclosure Counsel and without having undertaken to determine independently the fairness, accuracy or completeness of the statements contained in the Official Statement, such counsel has no reason to believe that, as of the date of the Official Statement or as of the date of Closing, the Official Statement (excluding therefrom the reports, financial and statistical data and forecasts therein, the information with respect to DTC and the book-entry system and the information included in Appendices thereto, as to which no opinion need be expressed) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(6) There shall have occurred any outbreak of hostilities or other local, national or international calamity or crisis, the effect of which on the financial markets of the United States of America, in the reasonable judgment of the Underwriter, is such as to materially and adversely affect (A) the market price or the marketability of the Bonds, or (B) the ability of the Underwriter to enforce contracts for the sale of the Bonds; or
(7) A Any rating of the Bonds shall have been downgraded, suspended or withdrawn by a national rating service, which, in the Underwriter’s reasonable opinion materially adversely affects the marketability or market price of the Bonds.
(e) At or prior to the Closing Date, the Underwriter shall have received two counterpart originals or certified copies of the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) The Official Statement, executed on behalf of the Authority by its Executive Director or another duly authorized official;
(2) The Indenture duly executed, and delivered by the Authority and the Trustee;
(3) The Bond Resolution, together with a certificate of a duly appointed officer, to the effect that such resolution is a true, correct and complete copy of the resolution duly adopted by the legislative body of the Authority;
(4) Resolution authorizing No. of the City Council (the “City Resolution”), together with a certificate of the Clerk of the City Council to the effect that such resolution is a true, correct and complete copy of the resolution duly adopted by the City Council of the City;
(5) The Escrow Agreement duly executed by the Authority and the Escrow Agent; Authority;
(6) Continuing Disclosure Certificate executed and delivered by the
(7) An opinion, dated the Closing Date and addressed to the Authority, of Bond Counsel, in substantially the form included as Appendix C to the Official Statement, together with a letter of Bond Counsel, dated the Closing Date and addressed to the Underwriter, to the effect that such opinion addressed to the Authority may be relied upon by the Underwriter to the same extent as if such opinion was addressed to it;
(8) A supplemental opinion or opinions, dated the Closing Date and addressed to the Underwriter, of Bond Counsel, to the effect that (i) this Purchase Agreement and the Escrow Agreement have been duly authorized, executed and delivered by the Authority, and assuming due authorization, execution and delivery by the other parties thereto, constitute the valid and binding agreements of the Authority, except to the extent that enforceability may be limited by moratorium, bankruptcy, reorganization, insolvency or other similar laws affecting creditors’ rights generally or by the exercise of judicial discretion in accordance with general principles of equity or otherwise in appropriate cases; (ii) the Bonds are not subject to registration requirements of the Securities Act of 1933, as amended, the Indenture is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended; and (iii) the statements contained in the Official Statement and under the captions [INTRODUCTORY STATEMENT, “THE FINANCING PLAN“INTRODUCTION – Security and Sources of Repayment for the Bonds,” “ − The Local Obligations,” “THE BONDS,” (except under the caption “Book- Entry Only System”), “THE RESERVE FUND,” “THE LOCAL OBLIGATIONS,” “FLOW OF FUNDS,” “THE AUTHORITY,” and “TAX EXEMPTION “SOURCES OF PAYMENT FOR THE BONDS” and “LEGAL MATTERS – Tax Matters” and in Appendices A and C to the Official Statement,] insofar as such statements purport to summarize certain provisions of the Bonds, the Local Obligations, the Indenture, the Disclosure Certificate, the and Bond Purchase Agreement, the Escrow Agreement and the Official Statement and ratifying the distribution of the Preliminary Official Statement and authorizing distribution of the Official Statement;Counsel’s final opinion are accurate in all material respects.
(8) An 9) A defeasance opinion of counsel with respect to the Refunded Bonds, dated the Closing Date and addressed to the Trustee of Bond Counsel, in form and substance satisfactory to the Underwriter and Bond CounselUnderwriter;
(910) A certificate of the TrusteeAn opinion, dated the Closing Date and signed by an authorized Underwriter addressed to the Underwriter, of Stradling, Yocca, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, a Professional Corporation, Newport Beach, California, as Disclosure Counsel, to the effect that (i) the Bonds are not subject to the registration requirements of the TrusteeSecurities Act of 1933, as amended, and the Indenture is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended; and (ii) based upon the information made available to them in the course of their participation in the preparation of the Official Statement as counsel to the Underwriter and without having undertaken to determine independently or assuming any responsibility for the accuracy, completeness or fairness of the statements contained in the Official Statement, such counsel does not believe that the Official Statement, as of its date and as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that no opinion or belief need be expressed as to any information about the book-entry system or DTC or any financial and statistical data contained in the Official Statement);
(11) An opinion, dated the Closing Date and addressed to the Authority and the Underwriter, of counsel to the City, to the effect that:
: (i) The Trustee the City is a municipal corporation and general law City duly organized and validly existing national banking association in good standing as a body corporate and politic under and by virtue of the Constitution and laws of the United States State of America and California; (ii) the City has all necessary power and authority to enter into and perform its duties under the Indenture;
(ii) The Trustee is duly authorized to enter into the Indenture and has duly executed and delivered the Indenture;
City Resolution; (iii) The Bonds the City Resolution has been duly adopted at a meeting of the City Council of the City that was called and held in accordance with law and with all public notice required by law and at which a quorum was present and acting throughout, and such resolution is in full force and effect and has not been amended, modified or rescinded; (iv) the District is duly organized and validly existing under the ▇▇▇▇▇-▇▇▇▇ Act and the Formation Documents have been duly authenticated and delivered authorized by the Trustee;
(iv) The execution City and delivery of the Indenture remain in full force and the authentication and delivery of the Bonds and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Trustee’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Trustee is subject or by which it is or may be boundeffect; provided, however, the Trustee need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(v) There is other than as disclosed in the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental regulatory agency, public board or body, served upon body to which the City or the District is a party is pending or, to the best of the Trusteesuch counsel’s knowledge, threatened against the Trusteethreatened, in any way affecting the existence of the Trustee, City or the entitlement District or the titles of its their officers to their respective offices offices, or seeking to prohibit, restrain or to enjoin the execution and delivery collection or application of the Bonds or the collection of revenues pledged or to be pledged Special Taxes to pay the principal, redemption premium, if anyprincipal of, and interest represented by on, the Bonds, or the pledge thereofLocal Obligations, or in any way contesting or affecting the validity or enforceability of the IndentureCity Resolution, the Local Obligations or the Formation Documents, or any action of the City or the District contemplated by any of such documents or in any way contesting the completeness or accuracy of the Official Statement or the powers of the City or the District with respect to the Local Obligations, the Formation Documents, or the BondsCity Resolution, or which challenges the exclusion from gross income for federal income tax purposes of interest paid on the Local Obligations or the exemption of interest paid on the Local Obligations from State of California personal income taxation; or contesting (vi) the power or authority Special Tax has been duly and validly authorized in accordance with the provisions of the Trustee ▇▇▇▇▇-▇▇▇▇ Act, and, except as the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other laws relating to enter intoor affecting generally the enforcement of creditors’ rights, adopt or perform its obligations under any by equitable principles and by the exercise of judicial discretion in appropriate cases, a lien to secure payment of the foregoingSpecial Taxes has been imposed on all nonexempt property in the District and (vii) to the best of such counsel’s knowledge, wherein without conducting an unfavorable decisionindependent investigation, ruling the information contained in the Official Statement, with respect only to the City, the District and the Local Obligations, is correct in all material respects and does not contain any untrue or finding would materially adversely affect misleading statement of a material fact or omit a material fact required to be stated therein or necessary to make the validly or enforceability statements therein, in light of the Indenture or the Bonds;circumstances under which they were made, not misleading.
(10) An opinion of counsel to the Escrow Bank in form and substance satisfactory to the Underwriter and Bond Counsel;
(1112) A certificate of the Escrow Bankcertificate, dated the Closing Date and signed by an the Executive Director, or another duly authorized Underwriter official, of the Escrow BankAuthority or authorized designee, to the effect that:
that (i) The Escrow Bank is a duly organized the representations and existing national banking association in good standing under the laws warranties of the United States Authority contained herein are true and correct in all material respects on and as of America and has the Closing Date with the same effect as if made on the Closing Date, except that all necessary power and authority references herein to enter into and perform its duties under the Escrow Agreement;
Preliminary Official Statement shall be deemed to be references to the Official Statement; (ii) The Escrow Bank is duly authorized to enter into the Escrow Agreement and best knowledge of such officer, no event has duly executed and delivered occurred since the Escrow Agreement;
(iii) The execution and delivery date of the Escrow Agreement and compliance with Official Statement which should be disclosed in the provisions thereof, will not conflict with, or constitute a breach of or default under, Official Statement for the Escrow Bank’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Escrow Bank is subject or by purpose for which it is to be used or may be bound; provided, however, the Escrow Bank need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(iv) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Escrow Bank’s knowledge, threatewhich
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligation Underwriter hereby enters into this Purchase Contract in reliance upon the representations and warranties of the Underwriter Authority and the City contained herein and the representations and warranties of the Authority and the City to be contained in the documents and instruments to be delivered on or prior to the Closing Date and upon the performance by the Authority and the City of their obligations both on and as of the date hereof and as of the Closing Date. Accordingly, the Underwriter’s obligations under this Purchase Contract to purchase, to accept delivery of and to pay for the 2024-A Bonds on the Closing Date shall be subject, at the option of the Underwriter, to the accuracy in all material respects of the representations, representations and warranties and agreements on the part of the District Authority and the City contained herein as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the officers and other officials of the District Authority and the City made in any certificates certificate or other documents document furnished pursuant to the provisions hereof, and to the performance by the District Authority and the City of its their obligations to be performed hereunder and under such documents and instruments at or prior to the Closing Date Date, and also shall be subject to the following additional conditions:
(a) At The Underwriter shall receive, within seven (7) business days of the date hereof and at least in sufficient time to accompany any orders or confirmations that request payment from any customer, copies of the Official Statement (including all information previously permitted to have been omitted by Rule 15c2-12 and any amendments or supplements as have been approved by the Underwriter), in such quantity as the Underwriter shall have requested pursuant to Section 3 hereof;
(b) The representations and warranties of the Authority and the City contained herein shall be true and correct on the date hereof and on the Closing Date, as if made on and at the Closing Date;
(c) As of the Closing Date, the Official StatementFinancing Documents shall have been duly authorized, executed and delivered by the Indenturerespective parties thereto, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement Official Statement shall be have been duly authorized, executed and delivered by the Authority, all in full force and effect in substantially the form forms heretofore submitted to the Underwriter, with only such changes as shall be have been agreed to in writing by the Underwriter, and there shall have been taken in connection with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, Financing Documents shall be necessary in full force and appropriate;
(b) At the Closing Date, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate effect and the Escrow Agreement shall not have been amended, modified or supplementedsupplemented and the Official Statement shall not have been supplemented or amended, except in any such case as may have been agreed to in writing by the Underwriter; and there shall be in full force and effect such resolution or resolutions of the Board of Directors of the Authority and the City Council of the City as, in the opinion of Bond Counsel, shall be necessary or appropriate in connection with the transactions contemplated hereby;
(cd) Between the date hereof and the Closing Date, the market price or marketability, at the initial public offering prices set forth in the Official Statement, of the 2024-A Bonds shall not have been materially adversely affected, in the reasonable judgment of the UnderwriterUnderwriter (evidenced by a written notice to the Authority terminating the obligation of the Underwriter to accept delivery of and make any payment for the 2024-A Bonds), by reason of any of the following:
(1) an amendment to the Constitution of the United States or the State of California shall have been passed or legislation shall have been introduced in or enacted by the Congress of the United States or the Legislature legislature of any state having jurisdiction of the State subject matter or legislation pending in the Congress of California the United States shall have been amended or favorably reported thereto for passage by any Committee to which such legislation has been referred for consideration or be pending before any such Committee or shall have been recommended to the Congress of the United States or to any state having jurisdiction of the subject matter or otherwise endorsed for passage (by press release, other form of notice or otherwise) by the President of the United States or recommended to States, the Legislature Treasury Department of the State United States, the Internal Revenue Service or the Chairman or ranking minority member of California the Committee on Finance of the United States Senate or the Committee on Ways and Means of the United States House of Representatives, or legislation shall have been proposed for consideration by either such Committee by any member thereof or presented as an option for consideration by either such Committee by the staff of such Committee or by the staff of the Joint Committee on Taxation of the Congress of the United States, or legislation shall have been favorably reported for passage by the Governor to either House of the State Congress of Californiathe United States by a Committee of such House to which such legislation has been referred for consideration, or a decision shall have been rendered by a court of the United States, including States or of the State of California or the Tax Court of the United States, or of the State of California, or a ruling or an official release shall have been made or a regulation or temporary regulation shall have been proposed or made or any other release or announcement shall have been made by the Treasury Department of the United States or States, the Internal Revenue Service or other federal or State of California authority having jurisdiction over tax mattersauthority, with respect to federal or State of California taxation upon revenues or other income of the District general character to be derived by the Authority or upon interest received on obligations of the general character of the Bonds, or other actions or events shall have transpired that would, in the reasonable judgment of the Underwriter, 2024-A Bonds which may have the purpose or effect, directly or indirectly, of changing affecting the federal tax status of the Authority, its property or income, its securities (including the 2024-A Bonds) or the interest thereon, or (with respect to the 2024-A Bonds) any tax exemption granted or authorized by State of California tax consequences of any of the transactions contemplated in connection herewith and that in the reasonable judgment of the Underwriter, affects legislation or materially and adversely (i) affecting the market for the 2024-A Bonds or the market price or marketability generally of obligations of the Bonds or (ii) the ability general character of the Underwriter to enforce contracts for the sale of the 2024-A Bonds;
(2) legislation shall have been enacted or enacted, introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court established under Article III of competent jurisdiction the Constitution of the United States or by the Tax Court of the United States, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, matter shall have been made or issued to the effect that obligations of the general character of the 2024-A Bonds, or the 2024-A Bonds, including any or all underlying obligationsarrangements, are not exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”)amended, or that the Trust Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), or that the issuance, offering or sale of the Bonds, including any or all underlying obligations, is or would be in violation of the federal securities laws as amended and then in effect or that suspends the use of the Official Statement or any supplement thereto or any proceeding for such purpose shall have been initiated or threatened in any such court or by any such authorityamended;
(3) the outbreak or escalation of in military hostilities involving the United States or the declaration by the United States of a national or international emergency or war or other calamity or crisis, or escalation thereof, the engagement in major hostilities effect of which on the financial markets is such as to make it impracticable or inadvisable to proceed with the offering or delivery of the 2024-A Bonds as contemplated hereby or by the United States or the occurrence of any other national emergency or calamity relating to the effective operation of the government of or the financial community in the United StatesOfficial Statement;
(4) the declaration of a general banking moratorium by federal, New York or California authorities, or the general suspension of trading on any national securities exchange, or a major financial crisis or a material disruption in commercial banking or securities settlement or clearances services shall have occurred;
(5) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the 2024-A Bonds or obligations of the general character of the 2024-A Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriter;
(6) an order, decree or injunction of any court of competent jurisdiction, or order, ruling, regulation or official statement by the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, issued or made to the effect that the issuance, offering or sale of obligations of the general character of the 2024-A Bonds, or the issuance, offering or sale of the 2024-A Bonds, including any or all underlying obligations, as contemplated hereby or by the Official Statement, is or would be in violation of the federal securities laws as amended and then in effect;
(7) the withdrawal or downgrading of any rating of the 2024-A Bonds or any other outstanding debt of the City’s Electric System by S&P Global Ratings or Fitch, Inc. or ratings on the 2024-A Bonds shall have been placed on credit watch with a national rating agency “Negative Outlook” by S&P Global Ratings Services or notice having been given by a national rating agency of any intended or potential downgrading or other review or possible change in such rating that does not indicate the direction of such possible change; orFitch, Inc.;
(7) any 8) an event occurring, shall occur or information becoming known which, in the reasonable judgment of the Underwriter, be discovered which makes untrue or incorrect in any material respect respect, as of the time of such event, any statement or information contained in the Official Statement, Statement or has the effect that which is not reflected in the Official Statement contains any untrue statement of material fact or omits to state a material fact required to but should be stated reflected therein or necessary in order to make the statements therein, contained therein not misleading in any material respect and requires an amendment of or supplement to the light of Official Statement; or
(9) the circumstances under which they were made, not misleadingDealer Manager Agreement is terminated.
(8) an order, ruling, regulation (final, temporary or proposed), press release, statement or other form of notice by or on behalf of the Treasury Department of the United States, the Internal Revenue Service or other governmental agency relating to Circular 230 (31 C.F.R. part 10) is issued, made or proposed, that, in the judgment of the Underwriter, affects materially and adversely the market for the Bonds or the market price generally of obligations of the general character of the Bonds.
(de) At or prior to the Closing Date, the Underwriter shall have received the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) The Official Statement and each supplement or amendment, if any, thereto, executed by the Authority and approved by the City.
(2) Copies of each of the IndentureFinancing Documents, the Disclosure Certificate and the Escrow Agreement, each duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to in writing by the Underwriter;.
(23) An The unqualified approving opinionopinion of Bond Counsel, dated the Closing Date and addressed to the DistrictAuthority, in substantially the form attached to the Official Statement as Appendix F thereto.
(4) The supplemental opinion of Bond Counsel dated the Closing Date and addressed to the Underwriter in substantially the form attached hereto as Exhibit A.
(5) The opinion of ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP as disclosure counsel dated the Closing Date and addressed to the City, the Authority and the Underwriter in substantially the form attached hereto as Exhibit B.
(6) The opinion of the City Attorney of the City, as counsel for the Authority, dated the Closing Date and addressed to the Underwriter, in substantially the form attached hereto as Exhibit C.
(7) The opinion of the City Attorney of the City, dated the Closing Date and addressed to the Underwriter, in substantially the form attached hereto as Exhibit D.
(8) The opinion of counsel to the Trustee, dated the Closing Date and addressed to the Authority, the City and the Underwriter, to the effect that (i) the Trustee has duly authorized, executed and delivered the Trust Indenture and the Continuing Disclosure Agreement and duly authenticated and delivered the 2024-A Bonds on the Closing Date; and (ii) the Trust Indenture and the Continuing Disclosure Agreement constitute the legally valid and binding obligations of the Trustee, enforceable against the Trustee in accordance with their terms, except that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws in effect from time to time affecting the rights of creditors generally and except to the extent that the enforceability thereof may be limited by the application of general principles of equity.
(9) The opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond LLP (“Underwriter’s Counsel, in substantially the form attached as Appendix D to the Official Statement, together with a letter from said Bond Counsel authorizing the Underwriter to rely on said opinion, and a supplemental opinion in form acceptable to the Underwriter and the District”), dated the Closing Date and addressed to the Underwriter and the DistrictUnderwriter, to the effect that:
that (i) the Bond Purchase Agreement has been duly executed and delivered by the District and, assuming due authorization, execution and delivery by the Underwriter, is a valid and binding obligation of the District, subject to laws relating to bankruptcy, insolvency, reorganization arrangement, fraudulent conveyance, moratorium or other laws affecting creditors’ rights generally, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against a local health care district in the State of California;
(ii) the statements contained in the Official Statement in the sections thereof entitled: “THE BONDS,” “SECURITY FOR THE BONDS,” “TAX MATTERS,” “EXHIBIT C—SUMMARY OF PRINCIPAL LEGAL DOCUMENTS,” and “EXHIBIT D—FORM OF FINAL OPINION OF BOND COUNSEL,” insofar as such statements expressly summarize certain provisions of the Bonds, the Indenture, the Disclosure Certificate, the Escrow Agreement and Bond Counsel’s opinion concerning certain tax matters are accurate in all material respects; and
(iii) the 2024-A Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Trust Indenture is exempt from qualification as an indenture pursuant to the Trust Indenture Act of 1939, as amended.
, (3ii) An opinion dated without passing upon and without assuming any responsibility for the Closing Date accuracy, completeness or fairness of any of the statements contained in the Preliminary Official Statement or the Official Statement and addressed making no representation that they have independently verified the accuracy, completeness or fairness of any such statements; in their capacity as counsel to the District Underwriter during the course of the preparation of the Preliminary Official Statement and the UnderwriterOfficial Statement, they participated in conferences with representatives of ▇▇▇▇▇ & ▇the Authority, the City, the City Attorney, as counsel to the Authority and the City, ▇▇▇▇▇▇ LLP, counsel to the District, in substantially the form attached hereto as Exhibit C.
(4) A certificate of the Executive Director of the District, or such other officer as is acceptable to the Underwriter, dated the Closing Date, to the effect that the representations and agreements of the District contained herein are true and correct in all material respects as of the Closing Date, and:
(i) no litigation is pending or, to the knowledge of such officer, threatened
(a) to restrain or enjoin the issuance or delivery of any of the Bonds or the collection of Revenues pledged under the Indenture, (b) in any way contesting or affecting the authority for the issuance of the Bonds or the validity of the Bonds, the Indenture, the Disclosure Certificate or this Bond Purchase Agreement, or (c) in any way contesting the existence or powers of the District;
(ii) no event affecting the District has occurred since the date of the Official Statement which would cause as of the Closing Date any statement or information contained in the Official Statement to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements and information therein, in the light of the circumstances under which they were made, not misleading;
(iii) since June 30, 2021, no material and adverse change has occurred in the financial position or results of operations of the District other than as is set forth in the Official Statement;
(iv) the District has not, since June 30, 2021, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Official Statement; and
(v) no proceedings are pending or threatened (1) in any way contesting or affecting the District’s status as a local health care district or (2) to subject any income of the District to federal income taxation;
(5) Satisfactory evidence that the Bonds have been rated “ ” or better by ▇▇▇▇▇’▇ Investors Service;
(6) An opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Salmon, P.L.C.US LLP, as bond counsel and disclosure counsel (“Disclosure Counsel”)counsel, addressed to the District PFM Financial Advisors LLC as municipal advisor and the Underwriter, to during which the effect that the Bonds are not subject to the registration requirements contents of the Securities Act of 1933, as amended, Preliminary Official Statement and to the effect that, based upon its participation in the preparation of the Official Statement as Disclosure Counsel and without having undertaken related matters were discussed and based on their participation in such conferences, and in reliance thereon and on the certificates, opinions and other documents they have reviewed, no information has come to determine independently the fairness, accuracy or completeness attention of the statements contained lawyers of such firm rendering professional legal services in the Official Statement, connection with such counsel representation that has no reason caused them to believe that, that the Preliminary Official Statement as of the date of execution of the Purchase Contract, or the Official Statement or as of its date and as of the date of Closing, the Official Statement Closing Date (excluding therefrom the reports, except for any financial and statements or other financial or statistical data and forecasts thereinor forecasts, the information with respect to DTC concerning DTC, Cede & Co., and the book-entry system included therein, and the information included in Appendices thereto, and, with respect to the Preliminary Official Statement, information permitted to be omitted therefrom pursuant to Rule 15c2-12, as to all of which they express no opinion need be expressedor view) contains any untrue statement of a material fact or omits to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
; and (7iii) A certified copy of assuming the Resolution authorizing the due authorization, execution and delivery of the BondsContinuing Disclosure Agreement by the parties thereto and the enforceability thereof, the Indenture, the Continuing Disclosure Certificate, the Bond Purchase Agreement, the Escrow Agreement and the Official Statement and ratifying the distribution satisfies (b)(5)(i) of Rule 15c2-12 of the Preliminary Official Statement and authorizing distribution Securities Exchange Act.
(10) A certificate or certificates, dated the Closing Date, signed by a duly authorized official of the Official Statement;
(8) An opinion of counsel Authority satisfactory to the Trustee Underwriter, in form and substance satisfactory to the Underwriter and Bond Counsel;
(9) A certificate of the Trustee, dated the Closing Date and signed by an authorized Underwriter of the TrusteeUnderwriter, to the effect that:
that (i) The Trustee is a duly organized the representations and existing national banking association in good standing under the laws warranties of the United States Authority contained in this Purchase Contract and the other Authority Documents are true and correct in all material respects on and as of America and has all necessary power and authority to enter into and perform its duties under the Indenture;
Closing Date with the same effect as if made on the Closing Date; (ii) The Trustee is duly authorized to enter into the Indenture and has duly executed and delivered the Indenture;
(iii) The Bonds have been duly authenticated and delivered by the Trustee;
(iv) The execution and delivery of the Indenture and the authentication and delivery of the Bonds and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Trustee’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Trustee is subject or by which it is or may be bound; provided, however, the Trustee need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(v) There there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon investigation pending or, to the best knowledge of the Trustee’s knowledgesuch official after reasonable investigation, threatened against the Trustee, affecting the existence of the Trustee, or the entitlement of its officers (a) to their respective offices or seeking to prohibit, restrain or enjoin the execution and execution, sale or delivery of any of the 2024-A Bonds, (b) in any way affecting the validity of the 2024-A Bonds or the collection of revenues pledged Authority Documents or to be pledged to pay the principal, redemption premium, if any, and interest represented by the Bonds, or the pledge thereof, or (c) in any way contesting the existence or powers of the Authority; and (iii) no event affecting the validity or enforceability Authority has occurred since the date of the Indenture, Official Statement which either makes untrue or the Bonds; or contesting the power or authority incorrect in any material respect as of the Trustee Closing Date any statement or information contained in the Official Statement relating to enter intothe Authority or is not reflected in the Official Statement but should be reflected therein in order to make the statements and information therein relating to the Authority not misleading in any material respect.
(11) A certificate or certificates, adopt or perform its obligations under any dated the Closing Date, signed by a duly authorized official of the foregoing, wherein an unfavorable decision, ruling or finding would materially adversely affect the validly or enforceability of the Indenture or the Bonds;
(10) An opinion of counsel City satisfactory to the Escrow Bank Underwriter, in form and substance satisfactory to the Underwriter and Bond Counsel;
(11) A certificate of the Escrow Bank, dated the Closing Date and signed by an authorized Underwriter of the Escrow BankUnderwriter, to the effect that:
that (i) The Escrow Bank is a duly organized the representations and existing national banking association in good standing under the laws warranties of the United States City contained in this Purchase Contract and the other City Documents are true and correct in all material respects on and as of America and has all necessary power and authority to enter into and perform its duties under the Escrow Agreement;
Closing Date with the same effect as if made on the Closing Date; (ii) The Escrow Bank is duly authorized to enter into the Escrow Agreement and has duly executed and delivered the Escrow Agreement;
(iii) The execution and delivery of the Escrow Agreement and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Escrow Bank’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Escrow Bank is subject or by which it is or may be bound; provided, however, the Escrow Bank need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(iv) There there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon investigation pending or, to the best knowledge of such official, threatened (a) to restrain or enjoin the payment of the Escrow Bank’s knowledge2024 Purchase Payments (as defined in the Official Statement) or the execution and delivery of the City Documents, threate(b) in any way contesting or affecting the validity of the City Documents or (c) in any way contesting the e
Appears in 1 contract
Sources: Purchase Contract
Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to accept delivery of and pay for the Bonds Certificates on the Closing Date shall be subject, at the option of the Underwriter, to the accuracy in all material respects of the representations, warranties and agreements on the part of the District County contained herein as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the officers and other officials of the District County, the Corporation and the Trustee made in any certificates or other documents furnished pursuant to the provisions hereofhereof or the Certificate Documents, and to the performance by the District County, the Corporation and the Trustee of its their respective obligations to be performed hereunder and under the Certificate Documents at or prior to the Closing Date Date, and to the following additional conditions:
(a) At the Closing Date, the Official StatementCertificates, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate Documents and the Escrow Agreement Official Statement shall be have been duly authorized, executed and delivered by the respective parties thereto, in full force and effect in substantially the form forms heretofore submitted to the Underwriter, Underwriter with only such changes as shall be have been agreed to in writing by the Underwriter, and there shall have been taken in connection with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, shall be necessary and appropriate;
(b) At the Closing Date, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement said documents shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter, and there shall have been taken in connection therewith, with the execution and delivery of the Certificates and with the transactions contemplated thereby and by this Purchase Agreement, all such actions as ▇▇▇▇▇ ▇▇▇▇, A Professional Law Corporation, Special Counsel, shall deem to be necessary and appropriate;
(b) The representations and warranties of the County contained in this Purchase Agreement shall be true, correct and complete in all material respects on the date hereof and on the Closing Date, as if made again on the Closing Date, and the Official Statement (as the same may be supplemented or amended with the written approval of the Underwriter) shall be true, correct and complete in all material respects and such information shall not contain any untrue statement of fact or omit to state any fact required to be stated therein or necessary to make the statements therein relating to the County, in light of the circumstances under which such statements were made, not misleading;
(c) Between the date hereof and the Closing Date, neither the market price or nor marketability, at the initial offering prices set forth in the Official Statement, of the Bonds Certificates shall not have been materially adversely affected, in the judgment of the Underwriter, by reason of any of the following:
(1) legislation shall have been enacted by the Congress of the United States or the Legislature of the State of California or favorably reported thereto for passage by any Committee to which such legislation has been referred for consideration or be pending before any such Committee or shall have been recommended to the Congress of the United States for passage by the President of the United States or recommended to the Legislature of the State of California for passage by the Governor of the State of California, or a decision shall have been rendered by a court of the United States, including the Tax Court of the United States, or of the State of California, or a ruling or an official release shall have been made or a regulation shall have been proposed or made by the Treasury Department of the United States or the Internal Revenue Service or other federal or State of California authority having jurisdiction over tax matters, with respect to federal or State of California taxation upon revenues or other income of the District or upon interest on obligations of the general character of the Bonds, or other actions or events shall have transpired that would, in the reasonable judgment of the Underwriter, have the purpose or effect, directly or indirectly, of changing the federal or State of California tax consequences of any of the transactions contemplated in connection herewith and that in the reasonable judgment of the Underwriter, affects materially and adversely (i) the market price or marketability of the Bonds or (ii) the ability of the Underwriter to enforce contracts for the sale of the Bonds;
(2) legislation shall have been enacted or introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court established under Article III of competent jurisdiction the Constitution of the United States or by the Tax Court of the United States, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made made:
(i) by or on behalf of the Treasury Department of the United States or the Internal Revenue Service with the purpose or effect, directly or indirectly (except as described in the Official Statement), of imposing federal income taxation upon such interest as would be received by the owners of the Certificates, or
(ii) by or on behalf of the Securities and Exchange Commission, or any other governmental agency entity having jurisdiction of the subject matter, to the effect that obligations of the general character of the BondsCertificates, or the BondsCertificates, including any or all underlying obligationsarrangements, are not exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”)amended, or that the Indenture Trust Agreement is not exempt from qualification under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), or that the issuance, offering or sale of the Bonds, including any or all underlying obligations, is or would be in violation of the federal securities laws as amended and then in effect or that suspends the use of the Official Statement or any supplement thereto or any proceeding for such purpose shall have been initiated or threatened in any such court or by any such authorityamended;
(32) the outbreak or escalation declaration of hostilities involving the United States or the declaration by the United States of a national emergency or war or the engagement in major military hostilities by the United States or the occurrence of any other national emergency or calamity relating to the effective operation of the government or of or the financial community in the United States;
(43) the declaration of a general banking moratorium by federal, New York or California authorities, or the general suspension of trading on any national securities exchange;
(54) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authorityentity, of any material restrictions not now in force with respect to the Bonds Certificates or obligations of the general character of the Bonds Certificates or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriter;
(5) an order, decree or injunction of any court of competent jurisdiction, or order, filing, regulation or official statement by the Securities and Exchange Commission, or any other governmental entity having jurisdiction of the subject matter, issued or made to the effect that the issuance, offering or sale of obligations of the general character of the Certificates, or the execution, delivery, offering or sale of the Certificates, including any or all underlying obligations, as contemplated hereby or by the Official Statement, is or would be in violation of the federal securities laws as then in effect;
(6) the occurrence of any adverse change of a material nature of the financial condition, results of operation or properties of the County;
(7) the withdrawal or downgrading of any rating or credit outlook of the Bonds Certificates or other obligations of the County by a national rating agency or notice having been given by a national rating agency of any intended or potential downgrading or other review or possible change in such rating that does not indicate the direction of such possible changeagency; or
(7) 8) any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material adverse respect any statement or information contained in the Official Statement, or has the effect that the Official Statement contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(8) an order, ruling, regulation (final, temporary or proposed), press release, statement or other form of notice by or on behalf of the Treasury Department of the United States, the Internal Revenue Service or other governmental agency relating to Circular 230 (31 C.F.R. part 10) is issued, made or proposed, that, in the judgment of the Underwriter, affects materially and adversely the market for the Bonds or the market price generally of obligations of the general character of the Bonds.
(d) At or prior to the Closing Date, the Underwriter shall have received the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) Copies of the Indenture, the Disclosure Official Statement and each Certificate and the Escrow AgreementDocument, duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to in writing by the Underwriter;
(2) An an unqualified approving opinion, dated the Closing Date and addressed to the DistrictCounty, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond A Professional Law Corporation, Special Counsel, in substantially the form attached as Appendix D to the Official Statement, together with a letter from said Bond Counsel authorizing the Underwriter to rely on said opinionStatement as Appendix , and a supplemental opinion in form acceptable to the Underwriter and the Districtletter of such counsel, dated the Closing Date and addressed to the Underwriter and the DistrictUnderwriter, to the effect that:that such opinion may be relied upon by the Underwriter to the same extent as of such opinion were addressed to it;
(3) the supplemental opinion, dated the Closing Date and addressed to the Underwriter, of Special Counsel, substantially to the effect that (i) the Bond this Purchase Agreement has and the Certificate Documents to which the County is a party have been duly authorized, executed and delivered by the District and, assuming due authorization, execution County and delivery by the Underwriter, is a are valid and binding obligation agreements of the DistrictCounty enforceable in accordance with their respective terms, subject to laws relating to except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization arrangement, fraudulent conveyance, moratorium or and other laws affecting the enforcement of creditors’ rights generallyrights, to by the application of equitable principlesprinciples if equitable remedies are sought, to by the exercise of judicial discretion in appropriate cases and to by the limitations on legal remedies against a local health care district public agencies in the State of California;
California (ii) the statements contained in the Official Statement in the sections thereof entitled: “THE BONDS,” “SECURITY FOR THE BONDS,” “TAX MATTERS,” “EXHIBIT C—SUMMARY OF PRINCIPAL LEGAL DOCUMENTS,” and “EXHIBIT D—FORM OF FINAL OPINION OF BOND COUNSEL,” insofar as such statements expressly summarize certain provisions of the Bonds, the Indenture, the Disclosure Certificate, the Escrow Agreement and Bond Counsel’s opinion concerning certain tax matters are accurate in all material respects; and
(iii) the Bonds Certificates are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture Trust Agreement is exempt from qualification as an indenture pursuant to under the Trust Indenture Act of 1939, as amended., (iii) the statements contained in the Official Statement under the captions “INTRODUCTION,” “THE CERTIFICATES,” “SECURITY AND SOURCES OF PAYMENT FOR THE CERTIFICATES” and “TAX MATTERS”, insofar as such statements purport to summarize certain provisions of the Certificates, the Certificate Documents and Special Counsel’s opinion concerning certain federal tax matters relating to the Certificates, are accurate in all material respects, and (iv) the Certificate Documents to which the County is a party have been duly authorized, executed and delivered by the County, and, assuming due authorization, execution and delivery by the other parties thereto, constitute legal, valid and binding agreements of the County enforceable against the County in accordance with their respective terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other laws affecting the enforcement of creditors’ rights generally and by the application of equitable principles if sought and by the limitations on legal remedies imposed on actions against cities in the State of California;;
(34) An opinion dated the Closing Date and addressed to the District and the Underwriter, a letter of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the District, in substantially the form attached hereto as Exhibit C.
(4) A certificate of the Executive Director of the District, or such other officer as is acceptable to the Underwriter, dated the Closing Date, to the effect that the representations and agreements of the District contained herein are true and correct in all material respects as of the Closing Date, and:
(i) no litigation is pending or, to the knowledge of such officer, threatened
(a) to restrain or enjoin the issuance or delivery of any of the Bonds or the collection of Revenues pledged under the Indenture, (b) in any way contesting or affecting the authority for the issuance of the Bonds or the validity of the Bonds, the Indenture, the Disclosure Certificate or this Bond Purchase Agreement, or (c) in any way contesting the existence or powers of the District;
(ii) no event affecting the District has occurred since the date of the Official Statement which would cause as of the Closing Date any statement or information contained in the Official Statement to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements and information therein, in the light of the circumstances under which they were made, not misleading;
(iii) since June 30, 2021, no material and adverse change has occurred in the financial position or results of operations of the District other than as is set forth in the Official Statement;
(iv) the District has not, since June 30, 2021, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Official Statement; and
(v) no proceedings are pending or threatened (1) in any way contesting or affecting the District’s status as a local health care district or (2) to subject any income of the District to federal income taxation;
(5) Satisfactory evidence that the Bonds have been rated “ ” or better by ▇▇▇▇▇’▇ Investors Service;
(6) An opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Salmon, P.L.C.A Professional Law Corporation, as disclosure counsel to the County (“Disclosure Counsel”), addressed to the District Underwriter and the UnderwriterCounty, to the effect that without passing upon or assuming any responsibility for the Bonds are not subject to the registration requirements accuracy, completeness or fairness of the Securities Act statements contained in the Official Statement and making no representation that they have independently verified the accuracy, completeness or fairness of 1933, as amended, and to the effect thatany such statements, based upon its the information made available to them in the course of their participation in the preparation of the Official Statement as Disclosure Counsel and without having undertaken Statement, nothing has come to determine independently the fairness, accuracy or completeness of the statements contained in such counsel's attention which would lead them to believe that the Official Statement, such counsel has no reason to believe that, as of including the date of the Official Statement or as of the date of Closing, the Official Statement cover page (but excluding therefrom the reportsappendices thereto, financial statements and statistical data data, and forecasts therein, the information with respect to DTC regarding The Depository Trust Company and the book-its book entry system and the information included in Appendices theretosystem, as to which no opinion need be expressed) contains any an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;.
(75) A certified copy of the Resolution authorizing the execution and delivery of the Bonds, the Indenture, the Disclosure Certificate, the Bond Purchase Agreement, the Escrow Agreement and the Official Statement and ratifying the distribution of the Preliminary Official Statement and authorizing distribution of the Official Statement;
(8) An opinion of counsel to the Trustee in form and substance satisfactory to the Underwriter and Bond Counsel;
(9) A a certificate of the Trustee, Trustee dated the Closing Date and Date, signed by an a duly authorized Underwriter officer of the Trustee, to the effect that:
that (i) The the Trustee is a duly national banking association organized and existing national banking association in good standing under and by virtue of the laws of the United States of America and has all necessary America, having the full power and authority being qualified to enter into and perform its duties under the Indenture;
Trust Agreement and the Assignment Agreement and to execute and deliver the Certificates to the Underwriter pursuant to the Trust Agreement, (ii) The Trustee is duly authorized when delivered to enter into and paid for by the Indenture and has duly executed and delivered Underwriter on the Indenture;
(iii) The Bonds Closing Date, the Certificates will have been duly authenticated executed and delivered by the Trustee;
, (iviii) The the execution and delivery of the Indenture Trust Agreement and the authentication and delivery of the Bonds Assignment Agreement and compliance with the provisions thereofon the Trustee’s part contained therein, will not conflict with, with or constitute a breach of or default under, the Trustee’s duties under any law, administrative regulation, court judgment, decree, loan agreement, indenture, bond, note, resolution, articles of association, bylaws agreement or other agreement instrument to which the Trustee is a party or is otherwise subject (except that no representation, warranty or by which it agreement is or may be bound; provided, however, the Trustee need not make any representations and warranties made with respect to compliance with any federal and or state securities laws; and
or blue sky laws or regulations), nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties or assets held by the Trustee pursuant to the lien created by the Trust Agreement under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as provided by the Trust Agreement, and (viv) There there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, or public board or body, served upon entity pending or, to the best knowledge of the Trustee’s knowledge, threatened against the Trustee, affecting the existence of the Trustee, or the entitlement titles of its officers to their respective offices or seeking to prohibit, restrain or enjoin the execution and delivery of the Bonds or the collection of revenues pledged or to be pledged to pay the principal, redemption premium, if any, and interest represented by the Bonds, or the pledge thereofCertificates, or in any way contesting or affecting the validity or enforceability of the Indenture, or Trust Agreement and the Bonds; Assignment Agreement or contesting the power or authority powers of the Trustee to enter into, adopt or perform its obligations under any of the foregoingforegoing to which it is a party, wherein an unfavorable decision, ruling or finding would materially adversely affect the validly validity or enforceability of the Indenture Trust Agreement or the BondsAssignment Agreement or the ability of the Trustee to perform its obligations thereunder;
(106) An opinion of counsel to the Escrow Bank in form and substance satisfactory to the Underwriter and Bond Counsel;
(11) A a certificate of the Escrow BankCounty, dated the Closing Date and Date, signed by an authorized Underwriter of the Escrow Bankofficer thereof, to the effect that:
that (i) The Escrow Bank is the County Resolution (defined below) was duly adopted at a duly organized and existing national banking association in good standing under the laws meeting of the United States Board of America Supervisors of the County which was called and has held pursuant to law and with all necessary power public notice required by law and authority to enter into at which a quorum was present and perform its duties under the Escrow Agreement;
acting throughout; (ii) The Escrow Bank is duly authorized to enter into the Escrow representations and warranties of the County contained in this Purchase Agreement and has duly executed in the Certificate Documents to which it is a party are true and delivered correct in all material respects as of the Escrow Agreement;
Closing Date as if made on the Closing Date, (iii) The execution and delivery to the best of the Escrow Agreement County’s knowledge, no event affecting the County has occurred since the date of the Official Statement which either makes untrue or incorrect in any material respect as of the Closing Date the statements or information (except for statements and compliance with information regarding DTC) contained in the provisions thereofOfficial Statement or is not reflected in the Official Statement but should be reflected therein in order to make the statements and information (except for statements and information regarding DTC) therein not misleading in any material respect, will not conflict with, or constitute a breach of or default under, the Escrow Bank’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Escrow Bank is subject or by which it is or may be bound; provided, however, the Escrow Bank need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(iv) There no further consent is required for the inclusion of the audited financials of the County for fiscal year 2012-13 in the Official Statement, and (v) there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, court or governmental agency, or public board or body, served upon entity pending or, to the best knowledge of the Escrow BankCounty, after investigation, threatened against the County which affects or seeks to prohibit, restrain or enjoin the execution or delivery of the Certificates or the Certificate Documents, or contesting the validity of the Certificates or any of the Certificate Documents to which the County is party or the powers of the County to enter into or perform its obligations under the Certificate Documents to which it is a party or the existence or powers of the County, or which, if determined adversely to the County, would materially impair the County’s knowledgeability to meet its obligations under the Lease Agreement or materially and adversely affect the County’s financial condition;
(7) a certificate of the Corporation, threatedated the Closing Date, signed by an authorized officer thereof, to the effect that (i) the Corporation is a nonprofit public benefit corporation duly organized and validly existing under the laws of the State of California, (ii) the Corporation has all necessary power and has taken all official actions necessary to execute, deliver and perform its duties under each of the Certificate Documents to which it is a party, and each of the Certificate Documents to which the Corporation is a party has been duly authorized, executed and delivered by the Corporation and, assuming the due authorization, execution and delivery by the other respective parties thereto, will constitute legally valid and binding obligations of the Corporation enforceable against the Corporation in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or limiting creditors’ rights generally or principles of equity involving judicial discretion, (iii) the Corporation is not in material breach of, or default under, any applicable constitutional provision, law or administrative rule or regulation of the State of California or the United States of America material to the conduct of its functions or any applicable judg
Appears in 1 contract
Sources: Certificate Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to accept delivery of and pay for the Bonds on the Closing Date shall be subject, at the option of the Underwriter, to the accuracy in all material respects of the representations, representations and warranties and agreements on the part of the Community Facilities District contained herein as of the date hereof and as of the Closing Dateherein, to the accuracy in all material respects of the statements of the officers and other officials of the Community Facilities District made in any certificates or other documents furnished pursuant to the provisions hereof, and to the performance by the Community Facilities District of its obligations to be performed hereunder at or prior to the Closing Date Date, and to the following additional conditions:
(a) A. At the Closing Date, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate Community Facilities District Resolutions and the Escrow Agreement Community Facilities District Documents shall be in full force and effect in the form heretofore submitted to the Underwriter, with only such changes as shall be agreed to in writing by the Underwritereffect, and there shall have been taken in connection with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, shall be necessary and appropriate;
(b) At the Closing Date, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter;, and there shall have been taken in connection therewith, with the issuance of the Bonds and with the Bonds, and with the transactions contemplated thereby, and by this Purchase Agreement, all such actions as, in the opinion of Bond Counsel, shall be necessary and appropriate.
(c) B. At the Closing Date, except as described in the Official Statement, the Community Facilities District shall not be, in any respect material to the transactions referred to herein or contemplated hereby, in breach of or in default under, any law or administrative rule or regulation of the State of California, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Community Facilities District is a party or is otherwise subject or bound, and the performance of the conditions precedent to be performed hereunder will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State of California, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Community Facilities District is a party or is otherwise subject or bound, in any manner which would materially and adversely affect the performance of the conditions precedent to be performed by the Community Facilities District hereunder.
C. At the Closing Date, except as described in the Official Statement, the Community Facilities District shall not be, in any respect material to the transactions referred to herein or contemplated hereby, in breach of or in default under, any law or administrative rule or regulation of the State of California, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Community Facilities District is a party or is otherwise subject or bound, and the performance by the Community Facilities District of its obligations under the Bonds, the Community Facilities District Resolutions, the Indenture, and any other instruments contemplated by any of such documents, and compliance with the provisions of each thereof, or the performance of the conditions precedent to be performed hereunder, will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State of California, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Community Facilities District is a party or is otherwise subject or bound, in any manner which would materially and adversely affect the performance by the Community Facilities District of its obligations under the Indenture, the Bonds or the performance of the conditions precedent to be performed by the Community Facilities District hereunder.
D. The information contained in the Official Statement is, as of the Closing Date and as of the date of any supplement or amendment thereto pursuant hereto, will be true and correct in all material respects and will not, as of the Closing Date or as of the date of any supplement or amendment thereto, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
E. Between the date hereof and the Closing Date, the market price or marketability, at the initial offering prices set forth in on the inside cover page of the Official Statement, of the Bonds shall not have been materially adversely affected, in the judgment of the Underwriter, by reason of any of the following:
(1) legislation shall have been enacted by the Congress of the United States or the Legislature of the State of California or favorably reported thereto for passage by any Committee to which such legislation has been referred for consideration or be pending before any such Committee or shall have been recommended to the Congress of the United States for passage by the President of the United States or recommended to the Legislature of the State of California for passage by the Governor of the State of California, or a decision shall have been rendered by a court of the United States, including the Tax Court of the United States, or of the State of California, or a ruling or an official release shall have been made or a regulation shall have been proposed or made by the Treasury Department of the United States or the Internal Revenue Service or other federal or State of California authority having jurisdiction over tax matters, with respect to federal or State of California taxation upon revenues or other income of the District or upon interest on obligations of the general character of the Bonds, or other actions or events shall have transpired that would, in the reasonable judgment of the Underwriter, have the purpose or effect, directly or indirectly, of changing the federal or State of California tax consequences of any of the transactions contemplated in connection herewith and that in the reasonable judgment of the Underwriter, affects materially and adversely (i) the market price or marketability of the Bonds or (ii) the ability of the Underwriter to enforce contracts for the sale of the Bonds;
(2) legislation , shall not have been enacted or materially adversely affected, in the judgment of the Underwriter (evidenced by a written notice to the Community Facilities District terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
1. Legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended for passage to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration, or a decision rendered by a court established under Article III of competent jurisdiction the Constitution of the United States of America or by the Tax Court of the United StatesStates of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department of the United States of America or the Internal Revenue Service, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon such interest as would be received by any owners of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof; or
2. Legislation introduced in or enacted (or resolution passed) by the Congress or official statement an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying obligationsarrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as amended (the “Securities Act”)amended, or that the Indenture is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”)amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, including any or all underlying obligationsarrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws as amended and then in effect or that suspends the use of the Official Statement or any supplement thereto or any proceeding for such purpose shall have been initiated or threatened in any such court or by any such authority;effect; or
(3) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or the engagement in major hostilities by the United States or the occurrence of any other national emergency or calamity relating to the effective operation of the government of or the financial community in the United States;
(4) the declaration of a general banking moratorium by federal, New York or California authorities, or the . A general suspension of trading on any national securities exchange;
(5) the imposition by the New York Stock Exchange or other national major exchange shall be in force, 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 any such exchange, whether by virtue of determination by that exchange or by order of the SEC or any other governmental authorityauthority having jurisdiction; or
4. The introduction, proposal or enactment of any material restrictions not now in force with respect amendment to the Bonds Federal or obligations California Constitution or any action by any Federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the general character Community Facilities District, its property, income, securities (or interest thereon), the validity or enforceability of the Bonds or securities generallySpecial Taxes, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, Underwriter;
(6) the withdrawal or downgrading of any rating ability of the Community Facilities District to issue the Bonds as contemplated by a national rating agency or notice having been given by a national rating agency of any intended or potential downgrading or other review or possible change in such rating that does not indicate the direction of such possible changeIndenture and the Official Statement; or
(7) any 5. Any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Preliminary Official Statement or in the Official Statement, or has the effect that the Preliminary Official Statement contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(8) an order, ruling, regulation (final, temporary or proposed), press release, statement or other form of notice by or on behalf of the Treasury Department of the United States, the Internal Revenue Service or other governmental agency relating to Circular 230 (31 C.F.R. part 10) is issued, made or proposed, that, in the judgment of the Underwriter, affects materially and adversely the market for the Bonds or the market price generally of obligations of the general character of the Bonds.
(d) At or prior to the Closing Date, the Underwriter shall have received the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) Copies of the Indenture, the Disclosure Certificate and the Escrow Agreement, duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to in writing by the Underwriter;
(2) An approving opinion, dated the Closing Date and addressed to the District, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, in substantially the form attached as Appendix D to the Official Statement, together with a letter from said Bond Counsel authorizing the Underwriter to rely on said opinion, and a supplemental opinion in form acceptable to the Underwriter and the District, dated the Closing Date and addressed to the Underwriter and the District, to the effect that:
(i) the Bond Purchase Agreement has been duly executed and delivered by the District and, assuming due authorization, execution and delivery by the Underwriter, is a valid and binding obligation of the District, subject to laws relating to bankruptcy, insolvency, reorganization arrangement, fraudulent conveyance, moratorium or other laws affecting creditors’ rights generally, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against a local health care district in the State of California;
(ii) the statements contained in the Official Statement in the sections thereof entitled: “THE BONDS,” “SECURITY FOR THE BONDS,” “TAX MATTERS,” “EXHIBIT C—SUMMARY OF PRINCIPAL LEGAL DOCUMENTS,” and “EXHIBIT D—FORM OF FINAL OPINION OF BOND COUNSEL,” insofar as such statements expressly summarize certain provisions of the Bonds, the Indenture, the Disclosure Certificate, the Escrow Agreement and Bond Counsel’s opinion concerning certain tax matters are accurate in all material respects; and
(iii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification as an indenture pursuant to the Trust Indenture Act of 1939, as amended.
(3) An opinion dated the Closing Date and addressed to the District and the Underwriter, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the District, in substantially the form attached hereto as Exhibit C.
(4) A certificate of the Executive Director of the District, or such other officer as is acceptable to the Underwriter, dated the Closing Date, to the effect that the representations and agreements of the District contained herein are true and correct in all material respects as of the Closing Date, and:
(i) no litigation is pending or, to the knowledge of such officer, threatened
(a) to restrain or enjoin the issuance or delivery of any of the Bonds or the collection of Revenues pledged under the Indenture, (b) in any way contesting or affecting the authority for the issuance of the Bonds or the validity of the Bonds, the Indenture, the Disclosure Certificate or this Bond Purchase Agreement, or (c) in any way contesting the existence or powers of the District;
(ii) no event affecting the District has occurred since the date of the Official Statement which would cause as of the Closing Date any statement or information contained in the Official Statement to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements and information therein, in the light of the circumstances under which they were made, not misleading;
(iii) since June 30, 2021, no material and adverse change has occurred in the financial position or results of operations of the District other than as is set forth in the Official Statement;
(iv) the District has not, since June 30, 2021, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Official Statement; and
(v) no proceedings are pending or threatened (1) in any way contesting or affecting the District’s status as a local health care district or (2) to subject any income of the District to federal income taxation;
(5) Satisfactory evidence that the Bonds have been rated “ ” or better by ▇▇▇▇▇’▇ Investors Service;
(6) An opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Salmon, P.L.C., as disclosure counsel (“Disclosure Counsel”), addressed to the District and the Underwriter, to the effect that the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and to the effect that, based upon its participation in the preparation of the Official Statement as Disclosure Counsel and without having undertaken to determine independently the fairness, accuracy or completeness of the statements contained in the Official Statement, such counsel has no reason to believe that, as of the date of the Official Statement or as of the date of Closing, the Official Statement (excluding therefrom the reports, financial and statistical data and forecasts therein, the information with respect to DTC and the book-entry system and the information included in Appendices thereto, as to which no opinion need be expressed) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;; or
6. Any national securities exchange, the Comptroller of the Currency, or any other governmental authority, shall impose as to the Bonds, or obligations of the general character of the Bonds, any material restrictions not now in force, or increase materially those now in force, with respect to the extension of credit by, or the charge to the net capital requirements of, the Underwriter; or
7. There shall have occurred (71) an outbreak or escalation of hostilities or the declaration by the United States of a national emergency or war or (2) any other calamity or crisis in the financial markets of the United States or elsewhere or the escalation of such calamity or crisis; or
8. Except as disclosed in or contemplated by the Official Statement, any material adverse change in the affairs of the County or Community Facilities District shall have occurred; or
9. Any event or circumstance shall exist that either makes untrue or incorrect in any material respect any statement or information in the Official Statement (other than any statement provided by the Underwriter) or is not reflected in the Official Statement but should be reflected therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and, in either such event, the Community Facilities District refuses to permit the Official Statement to be supplemented to supply such statement or information, or the effect of the Official Statement as so supplemented is to materially adversely affect the market price or marketability of the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds; or
10. A general banking moratorium shall have been declared by federal or State authorities having jurisdiction and be in force; or
11. A material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred; or
12. Any new restriction on transactions in securities materially affecting the market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a charge to the net capital requirements of, underwriters shall have been established by the New York Stock Exchange, the SEC, any other federal or State agency or the Congress of the United States, or by Executive Order; or
13. A decision by a court of the United States shall be rendered, or a stop order, release, regulation or no-action letter by or on behalf of the SEC or any other governmental agency having jurisdiction of the subject matter shall have been issued or made, to the effect that the issuance, offering or sale of the Bonds, including the underlying obligations as contemplated by this Purchase Agreement or by the Official Statement, or any document relating to the issuance, offering or sale of the Bonds, is or would be in violation of any provision of the federal securities laws at the Closing Date, including the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and the Trust Indenture Act of 1939, as amended; or
14. The withdrawal or downgrading or the placing on credit watch with negative outlook of any rating on the Bonds by a national rating agency; or
15. Any rating of the Insurer is reduced or withdrawn or placed on credit watch with negative outlook by any major credit rating agency; or
16. Any proceeding shall have been commenced or be threatened in writing by the Securities and Exchange Commission against the County or the Community Facilities District; or
17. The commencement of any Action.
F. At or prior to the Closing Date, the Underwriter shall have received a counterpart original or certified copy of the Resolution authorizing the execution and delivery of the Bondsfollowing documents, the Indenture, the Disclosure Certificate, the Bond Purchase Agreement, the Escrow Agreement and the Official Statement and ratifying the distribution of the Preliminary Official Statement and authorizing distribution of the Official Statement;
(8) An opinion of counsel to the Trustee in each case satisfactory in form and substance satisfactory to the Underwriter and Bond CounselUnderwriter:
1. The Official Statement, executed on behalf of the Community Facilities District by an authorized officer;
(9) A 2. The Indenture, duly executed and delivered by the Community Facilities District and the Trustee;
3. The Community Facilities District Resolution, the Community Facilities District Documents and the Formation Documents, together with a certificate dated as of the TrusteeClosing Date of the County Clerk to the effect that the Community Facilities District Resolutions are true, correct and complete copies of the ones duly adopted by the Board of Supervisors;
4. The Continuing Disclosure Agreement executed and delivered by an authorized officer the Community Facilities District;
5. An unqualified approving opinion for the Bonds, dated the Closing Date and signed by an authorized Underwriter addressed to the Community Facilities District, of Bond Counsel, to the effect that the Bonds are the valid, legal and binding obligations of the TrusteeCommunity Facilities District and that the interest thereon is excluded from gross income for federal income tax purposes and exempt from personal income taxes of the State of California, in substantially the form included as Appendix E to the Official Statement, together with a letter of Bond Counsel, dated the Closing Date and addressed to the Underwriter, to the effect that such opinion addressed to the Community Facilities District may be relied upon by the Underwriter to the same extent as if such opinion was addressed to it;
6. A supplemental opinion or opinions, dated the Closing Date and addressed to the Underwriter, of Bond Counsel, to the effect that:
(i) The Trustee is a this Purchase Agreement, the Escrow Agreement and the Continuing Disclosure Agreement have been duly organized authorized, executed and existing national banking association in good standing under delivered by the laws Community Facilities District and, assuming due authorization, execution and delivery by the other parties thereto, as applicable, constitutes the legal, valid and binding obligations of the United States Community Facilities District and are enforceable in accordance with their terms, except to the extent that enforceability may be limited by moratorium, bankruptcy, reorganization, insolvency or other similar laws affecting creditors’ rights generally or by the exercise of America judicial discretion in accordance with general principles of equity or otherwise in appropriate cases and has all necessary power and authority to enter into and perform its duties under by limitations on legal remedies against public agencies in the IndentureState;
(ii) The Trustee is duly authorized the Bonds are not subject to enter into the registration requirements of the Securities Act of 1933, as amended, and the Indenture and has duly executed and delivered is exempt from qualification under the IndentureTrust Indenture Act of 1939, as amended;
(iii) The Bonds have been duly authenticated the information contained in the Official Statement on the cover and delivered by under the Trustee;
captions “THE SERIES 2024 BONDS” (iv) The execution other than the caption “Debt Service Schedule”), “SOURCES OF PAYMENT FOR THE SERIES 2024 BONDS,” “LEGAL MATTERS – Tax Exemption” and delivery of the Indenture “LEGAL MATTERS – Legal Opinion” and the authentication in Appendices C and delivery of the Bonds and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Trustee’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Trustee is subject or by which it is or may be bound; provided, however, the Trustee need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(v) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, E to the best Official Statement, are accurate insofar as such statements purport to summarize certain provisions of the Trustee’s knowledge, threatened against the Trustee, affecting the existence of the Trustee, or the entitlement of its officers to their respective offices or seeking to prohibit, restrain or enjoin the execution and delivery of the Bonds or the collection of revenues pledged or to be pledged to pay the principal, redemption premium, if any, and interest represented by the Bonds, or the pledge thereof, or in any way contesting or affecting the validity or enforceability of the Indenture, or the Bonds; or contesting the power or authority of the Trustee to enter into, adopt or perform its obligations under any of the foregoing, wherein an unfavorable decision, ruling or finding would materially adversely affect the validly or enforceability of the Indenture or the Bonds;
(10) An opinion of counsel to the Escrow Bank in form and substance satisfactory to the Underwriter and Bond Counsel;’s final approving opinion, and the Community Facilities District Act.
(11) A certificate 7. The letter of the Escrow BankDisclosure Counsel, dated the Closing Date and signed by an authorized Underwriter of addressed to the Escrow BankCommunity Facilities District and to the Underwriter, to the effect that:
(i) The Escrow Bank is a duly organized and existing national banking association in good standing under , without having undertaken to determine independently the laws accuracy or completeness of the United States of America and has all necessary power and authority to enter into and perform its duties under statements contained in the Escrow Agreement;
(ii) The Escrow Bank is duly authorized to enter into the Escrow Agreement and has duly executed and delivered the Escrow Agreement;
(iii) The execution and delivery of the Escrow Agreement and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Escrow Bank’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Escrow Bank is subject or by which it is or may be bound; provided, however, the Escrow Bank need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(iv) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Escrow Bank’s knowledge, threateOfficial
Appears in 1 contract
Sources: Indenture
Conditions to the Obligations of the Underwriter. The obligation Underwriter hereby enters into this Note Purchase Agreement in reliance upon the representations and warranties of the Underwriter District contained herein and the representations and warranties to be contained in the documents and instruments to be delivered on the Closing Date and upon the performance by the District and the Trustee of their respective obligations both on and as of the date hereof. Accordingly, the Underwriter’s obligations under this Note Purchase Agreement to purchase, to accept delivery of and to pay for the Bonds Notes on the Closing Date shall be subject, at the option of the Underwriter, to the accuracy in all material respects of the representations, representations and warranties and agreements on the part of the District contained herein as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the officers and other officials of the District made in any certificates or other documents furnished pursuant to the provisions hereof, and to the performance by the District of its obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions:of
(a) At on the Closing Date, the Official StatementLegal Documents shall have been duly authorized, executed and delivered by the IndentureDistrict, this Bond Purchase Agreement, all in substantially the Disclosure Certificate and the Escrow Agreement shall be in full force and effect in the form forms heretofore submitted to the Underwriter, with only such changes as shall be have been reasonably agreed to in writing by the UnderwriterUnderwriter or accepted by the Underwriter as evidenced by its acceptance of delivery of the Notes, and shall be in full force and effect; and there shall have been taken be in connection with the issuance full force and effect such resolutions and ordinances of the Bonds and with City Council, as the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions legislative body of the District as, in the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, shall be necessary and appropriateor appropriate in connection with the transactions contemplated hereby;
(b) At on the Closing Date, all necessary actions of City Council, as the Official Statement, legislative body of the Indenture, this Bond Purchase Agreement, the Disclosure Certificate District and the Escrow Agreement shall District relating to the issuance and sale of the Notes will have been taken and will be in full force and effect and will not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter;
(c) Between the date hereof and on or prior to the Closing Date, the market price or marketabilityUnderwriter shall have received the following documents, at in each case reasonably satisfactory in form and substance to the initial offering prices set forth Underwriter:
(i) one copy of each of the Legal Documents, each duly executed and delivered by the respective parties thereto;
(ii) the approving opinion, dated the date hereof and addressed to the District, of Bond Counsel in substantially the form of Appendix [ ] to the Official Statement, and a letter of such counsel, dated the Bonds shall not have been materially adversely affectedClosing Date, in the judgment of the Underwriter, by reason of any of the following:
(1) legislation shall have been enacted by the Congress of the United States or the Legislature of the State of California or favorably reported thereto for passage by any Committee to which such legislation has been referred for consideration or be pending before any such Committee or shall have been recommended and addressed to the Congress of the United States for passage by the President of the United States or recommended to the Legislature of the State of California for passage by the Governor of the State of California, or a decision shall have been rendered by a court of the United States, including the Tax Court of the United States, or of the State of California, or a ruling or an official release shall have been made or a regulation shall have been proposed or made by the Treasury Department of the United States or the Internal Revenue Service or other federal or State of California authority having jurisdiction over tax matters, with respect to federal or State of California taxation upon revenues or other income of the District or upon interest on obligations of the general character of the Bonds, or other actions or events shall have transpired that would, in the reasonable judgment of the Underwriter, have the purpose or effect, directly or indirectly, of changing the federal or State of California tax consequences of any of the transactions contemplated in connection herewith and that in the reasonable judgment of the Underwriter, affects materially and adversely (i) the market price or marketability of the Bonds or (ii) the ability of the Underwriter to enforce contracts for the sale of the Bonds;
(2) legislation shall have been enacted or introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court of competent jurisdiction or by the Tax Court of the United States, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations such opinion may be relied upon by the Underwriter to the same extent as if such opinion were addressed to them;
(iii) a supplemental opinion or opinions of Bond Counsel addressed to the general character Underwriter, in substantially the form attached hereto as Appendix A;
(iv) a letter of the Bonds, or the Bonds, including any or all underlying obligations, are not exempt from registration under the Securities Act of 1933, as amended ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP (the “Securities ActDisclosure Counsel”), that dated the Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), or that the issuance, offering or sale date of the BondsClosing, including any or all underlying obligationsaddressed to the District, is or would be with a reliance letter addressed to the Underwriter, substantially in violation of the federal securities laws form attached hereto as amended and then in effect or that suspends the use of the Official Statement or any supplement thereto or any proceeding for such purpose shall have been initiated or threatened in any such court or by any such authorityAppendix B;
(3v) the outbreak or escalation an opinion of hostilities involving the United States or the declaration by the United States of a national emergency or war or the engagement in major hostilities by the United States or the occurrence of any other national emergency or calamity relating ▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the effective operation of the government of or the financial community in the United States;
(4) the declaration of a general banking moratorium by federal, New York or California authorities, or the general suspension of trading on any national securities exchange;
(5) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, Underwriter;
(6) the withdrawal or downgrading of any rating of the Bonds by a national rating agency or notice having been given by a national rating agency of any intended or potential downgrading or other review or possible change in such rating that does not indicate the direction of such possible change; or
(7) any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material respect any statement dated the Closing Date, and addressed to the Underwriter, substantially to the effect that: (a) based upon examinations which they have made, which may be specified, and without having undertaken to determine independently the accuracy, completeness or information fairness of the statements contained in the Preliminary Official Statement, or nothing has the effect come to their attention which would lead them to believe that the Preliminary Official Statement contains Statement, as of its date and as of the date of this Note Purchase Agreement, contained any untrue statement of a material fact or omits omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(8) an order, ruling, regulation (final, temporary . Underwriter’s Counsel will express no belief or proposed), press release, statement or other form of notice by or on behalf opinion as to any permitted omissions allowed pursuant to Rule 15c2-12 of the Treasury Department Securities and Exchange Commission relating to the details of the United States, the Internal Revenue Service or other governmental agency relating to Circular 230 (31 C.F.R. part 10) is issued, made or proposed, that, in the judgment offering of the UnderwriterNotes such as offering prices, affects materially principal amounts, maturities, interest rates and adversely other pricing information, credit ratings, delivery dates, redemption terms, selling compensation and other terms dependent on such matters, including without limitation, use of proceeds, CUSIP numbers, amounts of reserve funds, and other information not known or reasonably ascertainable on the market for the Bonds or the market price generally of obligations date of the general character of the Bonds.
(d) At or prior to the Closing Date, the Underwriter shall have received the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) Copies of the Indenture, the Disclosure Certificate and the Escrow Agreement, duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to in writing by the Underwriter;
(2) An approving opinion, dated the Closing Date and addressed to the District, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, in substantially the form attached as Appendix D to the Preliminary Official Statement, together with a letter from said Bond Counsel authorizing or Appendices [ ] and [ ] to the Underwriter Preliminary Official Statement, or as to rely on said opinionany CUSIP numbers, financial, technical, statistical, economic, engineering, demographic or tabular data or forecasts, numbers, charts, tables, graphs, estimates, projections, assumptions or expressions of opinion included in the Preliminary Official Statement, or as to the information contained in the Preliminary Official Statement under the captions [“TAX MATTERS,” or “LITIGATION” or any information in the Preliminary Official Statement about the book-entry system, Cede & Co., or DTC; (b) based upon examinations which they have made, which may be specified, and a supplemental opinion in form acceptable without having undertaken to determine independently the Underwriter and the Districtaccuracy, dated the Closing Date and addressed to the Underwriter and the District, to the effect that:
(i) the Bond Purchase Agreement has been duly executed and delivered by the District and, assuming due authorization, execution and delivery by the Underwriter, is a valid and binding obligation completeness or fairness of the District, subject to laws relating to bankruptcy, insolvency, reorganization arrangement, fraudulent conveyance, moratorium or other laws affecting creditors’ rights generally, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against a local health care district in the State of California;
(ii) the statements contained in the Official Statement Statement, nothing has come to their attention which would lead them to believe that the Official Statement, as of its date and as of the date of Closing, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the sections thereof entitled: “THE BONDS,” “SECURITY FOR THE BONDS,” light of the circumstances under which they were made, not misleading. Underwriter’s Counsel will express no belief or opinion as to Appendices [ ] and [ ] to the Official Statement or as to any CUSIP numbers, financial, technical, statistical, economic, engineering, demographic or tabular data or forecasts, numbers, charts, tables, graphs, estimates, projections, assumptions or expressions of opinion included in the Official Statement or as to the information contained in the Official Statement under the captions [“TAX MATTERS,” or “EXHIBIT C—SUMMARY OF PRINCIPAL LEGAL DOCUMENTS,” and “EXHIBIT D—FORM OF FINAL OPINION OF BOND COUNSEL,” insofar as such statements expressly summarize certain provisions of LITIGATION”] or any information in the BondsOfficial Statement about the book-entry system, the IndentureCede & Co., the Disclosure Certificate, the Escrow Agreement and Bond Counsel’s opinion concerning certain tax matters are accurate in all material respectsor DTC; and
(iiic) the Bonds Notes are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification as an indenture pursuant to under the Trust Indenture Act of 1939, as amended.; and (d) the Continuing Disclosure Certificate meets the requirements of Section (b)(5)(i) of Rule 15c2-12 under the Securities Exchange Act of 1934, as amended;
(3vi) An the opinion of the City Attorney, as counsel to the District, dated the Closing Date and addressed to the District and the Underwriter, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the District, substantially in substantially the form attached hereto as Exhibit C.Appendix C;
(4vii) A a certificate of the Executive Director a duly authorized official of the District, or such other officer as is acceptable to the Underwriter, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter, to the effect that (A) the District’s representations and agreements of warranties contained in the District contained herein Legal Documents are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and:
; and (i) no litigation is pending or, to the knowledge of such officer, threatened
(a) to restrain or enjoin the issuance or delivery of any of the Bonds or the collection of Revenues pledged under the Indenture, (b) in any way contesting or affecting the authority for the issuance of the Bonds or the validity of the Bonds, the Indenture, the Disclosure Certificate or this Bond Purchase Agreement, or (c) in any way contesting the existence or powers of the District;
(iiB) no event affecting the District has occurred since the date of the Official Statement which would cause either makes untrue or incorrect in any material respect as of the Closing Date any statement or information contained in the Official Statement, as then supplemented or amended or is not reflected in the Official Statement to contain any untrue statement of a material fact or omit to state a material fact necessary but should be reflected therein in order to make the statements and information therein, in the light of the circumstances under which they were made, not misleadingmisleading in any material respect; provided, however, the District makes no representation or warranty with respect to the Excluded Information;
(iiiviii) since June 30, 2021, no material and adverse change has occurred in the financial position or results of operations of the District other than as is set forth in the Official Statement;
(iv) the District has not, since June 30, 2021, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Official Statement; and
(v) no proceedings are pending or threatened (1) in any way contesting or affecting the District’s status as a local health care district or (2) to subject any income of the District to federal income taxation;
(5) Satisfactory evidence that the Bonds have been rated “ ” or better by ▇▇▇▇▇’▇ Investors Service;
(6) An opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Salmon, P.L.C., as disclosure counsel (“Disclosure Counsel”), addressed to the District and the Underwriter, to the effect that the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and to the effect that, based upon its participation in the preparation of the Official Statement as Disclosure Counsel and without having undertaken to determine independently the fairness, accuracy or completeness of the statements contained in the Official Statement, such counsel has no reason to believe that, as of the date of the Official Statement or as of the date of Closing, the Official Statement (excluding therefrom the reports, financial and statistical data and forecasts therein, the information with respect to DTC and the book-entry system and the information included in Appendices thereto, as to which no opinion need be expressed) contains any untrue statement certificate of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(7) A certified copy of the Resolution authorizing the execution and delivery of the Bonds, the Indenture, the Disclosure Certificate, the Bond Purchase Agreement, the Escrow Agreement and the Official Statement and ratifying the distribution of the Preliminary Official Statement and authorizing distribution of the Official Statement;
(8) An opinion of counsel to the Trustee in form and substance satisfactory to the Underwriter and Bond Counsel;
(9) A certificate duly authorized official of the Trustee, dated the Closing Date and signed by an authorized Underwriter of the TrusteeDate, to the effect that:
: (iA) The the Trustee is a duly national banking association organized and existing national banking association in good standing under and by virtue of the laws of the United States of America and has all necessary States, having the full power and authority being qualified to enter into and perform its duties under the Indenture;
(ii) The Trustee is duly authorized to enter into the Indenture and has duly executed to authenticate and delivered deliver the Indenture;
(iii) The Bonds have been duly authenticated and delivered by the Trustee;
(iv) The execution and delivery of the Indenture and the authentication and delivery of the Bonds and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Trustee’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Trustee is subject or by which it is or may be bound; provided, however, the Trustee need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(v) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, Notes to the best of the Trustee’s knowledge, threatened against the Trustee, affecting the existence of the Trustee, or the entitlement of its officers to their respective offices or seeking to prohibit, restrain or enjoin the execution and delivery of the Bonds or the collection of revenues pledged or to be pledged to pay the principal, redemption premium, if any, and interest represented by the Bonds, or the pledge thereof, or in any way contesting or affecting the validity or enforceability of the Indenture, or the Bonds; or contesting the power or authority of the Trustee to enter into, adopt or perform its obligations under any of the foregoing, wherein an unfavorable decision, ruling or finding would materially adversely affect the validly or enforceability of the Indenture or the BondsUnderwriter;
(10) An opinion of counsel to the Escrow Bank in form and substance satisfactory to the Underwriter and Bond Counsel;
(11) A certificate of the Escrow Bank, dated the Closing Date and signed by an authorized Underwriter of the Escrow Bank, to the effect that:
(i) The Escrow Bank is a duly organized and existing national banking association in good standing under the laws of the United States of America and has all necessary power and authority to enter into and perform its duties under the Escrow Agreement;
(ii) The Escrow Bank is duly authorized to enter into the Escrow Agreement and has duly executed and delivered the Escrow Agreement;
(iii) The execution and delivery of the Escrow Agreement and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Escrow Bank’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Escrow Bank is subject or by which it is or may be bound; provided, however, the Escrow Bank need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(iv) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Escrow Bank’s knowledge, threate
Appears in 1 contract
Sources: Note Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to accept delivery of and pay for the Bonds on the Closing Date shall be subject, at the option of the Underwriter, to the accuracy in all material respects of the representations, warranties and agreements representations on the part of the Authority contained herein, of the District contained herein as in the Local Obligations Purchase Agreement and of Developer in the date hereof and as Letter of the Closing DateRepresentations, to the accuracy in all material respects of the statements of the officers and other officials of the District Authority made in any certificates or other documents furnished pursuant to the provisions hereof, and to the performance by the District Authority of its obligations to be performed hereunder at or prior to the Closing Date and and, to the following additional conditions:
(a) A. At the Closing Date, the Official StatementAuthority Resolution, the District Resolution, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate Fiscal Agent Agreement, the Local Obligations Purchase Agreement, the Local Obligations and the Escrow Continuing Disclosure Agreement shall be in full force and effect in the form heretofore submitted to the Underwriter, with only such changes as shall be agreed to in writing by the Underwritereffect, and there shall have been taken in connection with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, shall be necessary and appropriate;
(b) At the Closing Date, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter;, and there shall have been taken in connection therewith, with the issuance of the Bonds and with the Local Obligations, and with the transactions contemplated thereby, and by this Purchase Agreement, all such actions as, in the opinion of Bond Counsel, shall be necessary and appropriate.
(c) B. At the Closing Date, except as described in the Preliminary Official Statement, the Authority shall not be, in any respect material to the transactions referred to herein or contemplated hereby, in breach of or in default under, any law or administrative rule or regulation of the State of California, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Authority is a party or is otherwise subject or bound, and the performance by the Authority of its obligations under the Authority Documents, the Authority Resolution and any other instruments contemplated by any of such documents, and compliance with the provisions of each thereof, will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State of California, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Authority is a party or is otherwise subject or bound, in any manner that would materially and adversely affect the performance by the Authority of its obligations under the Authority Documents or the Authority Resolution.
C. The information contained in the Official Statement will be, as of the Closing Date and as of the date of any supplement or amendment thereto pursuant hereto, true and correct in all material respects and will not, as of the Closing Date or as of the date of any supplement or amendment thereto, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
D. Between the date hereof and the Closing Date, the market price or marketability, at the initial offering prices set forth in on the cover page of the Official Statement, of the Bonds shall not have been materially adversely affected, in the judgment of the Underwriter, by reason of any of the following:
(1) legislation shall have been enacted by the Congress of the United States or the Legislature of the State of California or favorably reported thereto for passage by any Committee to which such legislation has been referred for consideration or be pending before any such Committee or shall have been recommended to the Congress of the United States for passage by the President of the United States or recommended to the Legislature of the State of California for passage by the Governor of the State of California, or a decision shall have been rendered by a court of the United States, including the Tax Court of the United States, or of the State of California, or a ruling or an official release shall have been made or a regulation shall have been proposed or made by the Treasury Department of the United States or the Internal Revenue Service or other federal or State of California authority having jurisdiction over tax matters, with respect to federal or State of California taxation upon revenues or other income of the District or upon interest on obligations of the general character of the Bonds, or other actions or events shall have transpired that would, in the reasonable judgment of the Underwriter, have the purpose or effect, directly or indirectly, of changing the federal or State of California tax consequences of any of the transactions contemplated in connection herewith and that in the reasonable judgment of the Underwriter, affects materially and adversely (i) the market price or marketability of the Bonds or (ii) the ability of the Underwriter to enforce contracts for the sale of the Bonds;
(2) legislation , shall not have been enacted or materially adversely affected, in the judgment of the Underwriter (evidenced by a written notice to the Authority terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
1. Legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended for passage to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration, or a decision rendered by a court established under Article III of competent jurisdiction the Constitution of the United States of America or by the Tax Court of the United StatesStates of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department of the United States of America or the Internal Revenue Service, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon such interest as would be received by any owners of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
2. Legislation introduced in or enacted (or resolution passed) by the Congress or official statement an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, Bonds or the BondsLocal Obligations, including any or all underlying obligationsarrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as amended (the “Securities Act”)amended, or that the Indenture or the Fiscal Agent Agreement is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”)amended, or that the issuance, offering or sale of obligations of the Bondsgeneral character of the Bonds or the Local Obligations, including any or all underlying obligationsarrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws as amended and then in effect effect;
3. Any state Blue Sky or that suspends the use securities commission or other governmental agency or body shall have withheld registration, exemption or clearance of the Official Statement offering of the Bonds as described herein, or any supplement thereto issued a stop order or any proceeding for such purpose shall have been initiated or threatened in any such court or by any such authoritysimilar ruling relating thereto;
(3) 4. A general suspension of trading in securities on the outbreak New York Stock Exchange, or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or the engagement in major hostilities by the United States or the occurrence of any other national emergency or calamity relating to the effective operation of the government of or the financial community in the United States;
(4) the declaration of a general banking moratorium declared by federalFederal, State of New York or California authorities, or the general suspension of trading on any national securities exchange;
(5) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, Underwriter;
(6) the withdrawal or downgrading of any rating of the Bonds by a national rating agency or notice having been given by a national rating agency of any intended or potential downgrading or other review or possible change in such rating that does not indicate the direction of such possible change; or
(7) any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Official Statement, or has the effect that the Official Statement contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(8) an order, ruling, regulation (final, temporary or proposed), press release, statement or other form of notice by or on behalf of the Treasury Department of the United States, the Internal Revenue Service or other governmental agency relating to Circular 230 (31 C.F.R. part 10) is issued, made or proposed, that, in the judgment of the Underwriter, affects materially and adversely the market for the Bonds or the market price generally of obligations of the general character of the Bonds.
(d) At or prior to the Closing Date, the Underwriter shall have received the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) Copies of the Indenture, the Disclosure Certificate and the Escrow Agreement, duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to in writing by the Underwriter;
(2) An approving opinion, dated the Closing Date and addressed to the District, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, in substantially the form attached as Appendix D to the Official Statement, together with a letter from said Bond Counsel authorizing the Underwriter to rely on said opinion, and a supplemental opinion in form acceptable to the Underwriter and the District, dated the Closing Date and addressed to the Underwriter and the District, to the effect that:
(i) the Bond Purchase Agreement has been duly executed and delivered by the District and, assuming due authorization, execution and delivery by the Underwriter, is a valid and binding obligation of the District, subject to laws relating to bankruptcy, insolvency, reorganization arrangement, fraudulent conveyance, moratorium or other laws affecting creditors’ rights generally, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against a local health care district in the State of California;
(ii) the statements contained in the Official Statement in the sections thereof entitled: “THE BONDS,” “SECURITY FOR THE BONDS,” “TAX MATTERS,” “EXHIBIT C—SUMMARY OF PRINCIPAL LEGAL DOCUMENTS,” and “EXHIBIT D—FORM OF FINAL OPINION OF BOND COUNSEL,” insofar as such statements expressly summarize certain provisions of the Bonds, the Indenture, the Disclosure Certificate, the Escrow Agreement and Bond Counsel’s opinion concerning certain tax matters are accurate in all material respects; and
(iii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification as an indenture pursuant to the Trust Indenture Act of 1939, as amended.
(3) An opinion dated the Closing Date and addressed to the District and the Underwriter, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the District, in substantially the form attached hereto as Exhibit C.
(4) A certificate of the Executive Director of the District, or such other officer as is acceptable to the Underwriter, dated the Closing Date, to the effect that the representations and agreements of the District contained herein are true and correct in all material respects as of the Closing Date, and:
(i) no litigation is pending or, to the knowledge of such officer, threatened
(a) to restrain or enjoin the issuance or delivery of any of the Bonds or the collection of Revenues pledged under the Indenture, (b) in any way contesting or affecting the authority for the issuance of the Bonds or the validity of the Bonds, the Indenture, the Disclosure Certificate or this Bond Purchase Agreement, or (c) in any way contesting the existence or powers of the District;
(ii) no event affecting the District has occurred since the date of the Official Statement which would cause as of the Closing Date any statement or information contained in the Official Statement to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements and information therein, in the light of the circumstances under which they were made, not misleading;
(iii) since June 30, 2021, no material and adverse change has occurred in the financial position or results of operations of the District other than as is set forth in the Official Statement;
(iv) the District has not, since June 30, 2021, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Official Statement; and
(v) no proceedings are pending or threatened (1) in any way contesting or affecting the District’s status as a local health care district or (2) to subject any income of the District to federal income taxation;
(5) Satisfactory evidence that the Bonds have been rated “ ” or better by ▇▇▇▇▇’▇ Investors Service;
(6) An opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Salmon, P.L.C., as disclosure counsel (“Disclosure Counsel”), addressed to the District and the Underwriter, to the effect that the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and to the effect that, based upon its participation in the preparation of the Official Statement as Disclosure Counsel and without having undertaken to determine independently the fairness, accuracy or completeness of the statements contained in the Official Statement, such counsel has no reason to believe that, as of the date of the Official Statement or as of the date of Closing, the Official Statement (excluding therefrom the reports, financial and statistical data and forecasts therein, the information with respect to DTC and the book-entry system and the information included in Appendices thereto, as to which no opinion need be expressed) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(7) A certified copy of the Resolution authorizing the execution and delivery of the Bonds, the Indenture, the Disclosure Certificate, the Bond Purchase Agreement, the Escrow Agreement and the Official Statement and ratifying the distribution of the Preliminary Official Statement and authorizing distribution of the Official Statement;
(8) An opinion of counsel to the Trustee in form and substance satisfactory to the Underwriter and Bond Counsel;
(9) A certificate of the Trustee, dated the Closing Date and signed by an authorized Underwriter of the Trustee, to the effect that:
(i) The Trustee is a duly organized and existing national banking association in good standing under the laws of the United States of America and has all necessary power and authority to enter into and perform its duties under the Indenture;
(ii) The Trustee is duly California officials authorized to enter into the Indenture and has duly executed and delivered the Indenturedo so;
(iii) The Bonds have been duly authenticated and delivered by the Trustee;
(iv) The execution and delivery of the Indenture and the authentication and delivery of the Bonds and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Trustee’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Trustee is subject or by which it is or may be bound; provided, however, the Trustee need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(v) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Trustee’s knowledge, threatened against the Trustee, affecting the existence of the Trustee, or the entitlement of its officers to their respective offices or seeking to prohibit, restrain or enjoin the execution and delivery of the Bonds or the collection of revenues pledged or to be pledged to pay the principal, redemption premium, if any, and interest represented by the Bonds, or the pledge thereof, or in any way contesting or affecting the validity or enforceability of the Indenture, or the Bonds; or contesting the power or authority of the Trustee to enter into, adopt or perform its obligations under any of the foregoing, wherein an unfavorable decision, ruling or finding would materially adversely affect the validly or enforceability of the Indenture or the Bonds;
(10) An opinion of counsel to the Escrow Bank in form and substance satisfactory to the Underwriter and Bond Counsel;
(11) A certificate of the Escrow Bank, dated the Closing Date and signed by an authorized Underwriter of the Escrow Bank, to the effect that:
(i) The Escrow Bank is a duly organized and existing national banking association in good standing under the laws of the United States of America and has all necessary power and authority to enter into and perform its duties under the Escrow Agreement;
(ii) The Escrow Bank is duly authorized to enter into the Escrow Agreement and has duly executed and delivered the Escrow Agreement;
(iii) The execution and delivery of the Escrow Agreement and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Escrow Bank’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Escrow Bank is subject or by which it is or may be bound; provided, however, the Escrow Bank need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(iv) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Escrow Bank’s knowledge, threate
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to accept delivery of and pay for the Bonds on the Closing Date shall be subject, at the option of the Underwriter, to the accuracy in all material respects of the representations, warranties and agreements representations on the part of the District Authority contained herein as of the date hereof and as of the Closing Dateherein, to the accuracy in all material respects of the statements of the officers and other officials of the District Authority made in any certificates or other documents furnished pursuant to the provisions hereof, and to the performance by the District Authority of its obligations to be performed hereunder at or prior to the Closing Date and and, to the following additional conditions:
(a) A. At the Closing Date, the Official StatementAuthority Documents, the IndentureAuthority Resolution, this Bond the Districts Resolutions, the Local Obligations Security Documents, the Local Obligations Purchase Agreement, the Disclosure Certificate and the Escrow Agreement Local Obligations shall be in full force and effect in the form heretofore submitted to the Underwriter, with only such changes as shall be agreed to in writing by the Underwritereffect, and there shall have been taken in connection with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, shall be necessary and appropriate;
(b) At the Closing Date, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter;, and there shall have been taken in connection therewith, with the issuance of the Bonds and with the Local Obligations, and with the transactions contemplated thereby, and by this Purchase Agreement, all such actions as, in the opinion of Bond Counsel, shall be necessary and appropriate.
B. At the Closing Date, except as described in the Preliminary Official Statement, the Authority shall not be, in any respect material to the transactions referred to herein or contemplated hereby, in breach of or in default under, any law or administrative rule or regulation of the State of California, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Authority is a party or is otherwise subject or bound, and the performance by the Authority of its obligations under the Authority Documents and the Authority Resolution, and compliance with the provisions of each thereof, will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State of California, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Authority is a party or is otherwise subject or bound, in any manner that would materially and adversely affect the performance by the Authority of its obligations under the Authority Documents or the Authority Resolution.
C. The information contained in the Official Statement (c) other than statements pertaining to DTC or the book-entry system, the Reserve Policy, or any information provided by the Underwriter, as to which no view is expressed), will be, as of the Closing Date and as of the date of any supplement or amendment thereto pursuant hereto, true and correct in all material respects and will not, as of the Closing Date or as of the date of any supplement or amendment thereto, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
D. Between the date hereof and the Closing Date, the market price or marketability, at the initial offering prices set forth in on the inside cover page of the Official Statement, of the Bonds shall not have been materially adversely affected, in the judgment of the Underwriter, by reason of any of the following:
(1) legislation shall have been enacted by the Congress of the United States or the Legislature of the State of California or favorably reported thereto for passage by any Committee to which such legislation has been referred for consideration or be pending before any such Committee or shall have been recommended to the Congress of the United States for passage by the President of the United States or recommended to the Legislature of the State of California for passage by the Governor of the State of California, or a decision shall have been rendered by a court of the United States, including the Tax Court of the United States, or of the State of California, or a ruling or an official release shall have been made or a regulation shall have been proposed or made by the Treasury Department of the United States or the Internal Revenue Service or other federal or State of California authority having jurisdiction over tax matters, with respect to federal or State of California taxation upon revenues or other income of the District or upon interest on obligations of the general character of the Bonds, or other actions or events shall have transpired that would, in the reasonable judgment of the Underwriter, have the purpose or effect, directly or indirectly, of changing the federal or State of California tax consequences of any of the transactions contemplated in connection herewith and that in the reasonable judgment of the Underwriter, affects materially and adversely (i) the market price or marketability of the Bonds or (ii) the ability of the Underwriter to enforce contracts for the sale of the Bonds;
(2) legislation , shall not have been enacted or materially adversely affected, in the reasonable judgment of the Underwriter (evidenced by a written notice to the Authority terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
1. Legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended for passage to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration, or a decision rendered by a court established under Article III of competent jurisdiction the Constitution of the United States of America or by the Tax Court of the United StatesStates of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department of the United States of America or the Internal Revenue Service, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon such interest as would be received by any owners of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
2. Legislation introduced in or enacted (or resolution passed) by the Congress or official statement an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, Bonds or the BondsLocal Obligations, including any or all underlying obligationsarrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as amended (the “Securities Act”)amended, or that the Indenture is or the Local Obligations Security Documents are not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”)amended, or that the issuance, offering or sale of obligations of the Bondsgeneral character of the Bonds or the Local Obligations, including any or all underlying obligationsarrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws as amended and then in effect effect;
3. Any state Blue Sky or that suspends the use securities commission or other governmental agency or body shall have withheld registration, exemption or clearance of the Official Statement offering of the Bonds as described herein, or any supplement thereto issued a stop order or any proceeding for such purpose shall have been initiated or threatened in any such court or by any such authoritysimilar ruling relating thereto;
(3) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or the engagement in major hostilities by the United States or the occurrence of any other national emergency or calamity relating to the effective operation of the government of or the financial community in the United States;
(4) the declaration of a general banking moratorium by federal, New York or California authorities, or the . A general suspension of trading on any national securities exchange;
(5) the imposition by the New York Stock Exchange or other national major exchange shall be in force, 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 any such exchange, whether by virtue of determination by that exchange or by order of the SEC or any other governmental authorityauthority having jurisdiction;
5. The introduction, proposal or enactment of any material restrictions not now in force with respect amendment to the Bonds Federal or obligations California Constitution or any action by any Federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the general character Authority, the Community Facilities Districts or their property, income, securities (or interest thereon), the validity or enforceability of the Bonds or securities generallySpecial Taxes, or the material increase ability of any such restrictions now in force, including those relating the Authority to purchase the extension of credit by, or the charge to the net capital requirements of, UnderwriterLocal Obligations;
(6) the withdrawal or downgrading of any rating of the Bonds by a national rating agency or notice having been given by a national rating agency of any intended or potential downgrading or other review or possible change in such rating that does not indicate the direction of such possible change; or
(7) any . Any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Preliminary Official Statement or in the Official Statement, or has the effect that the Preliminary Official Statement contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(8) an order, ruling, regulation (final, temporary or proposed), press release, statement or other form of notice by or on behalf of the Treasury Department of the United States, the Internal Revenue Service or other governmental agency relating to Circular 230 (31 C.F.R. part 10) is issued, made or proposed, that, in the judgment of the Underwriter, affects materially and adversely the market for the Bonds or the market price generally of obligations of the general character of the Bonds.
(d) At or prior to the Closing Date, the Underwriter shall have received the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) Copies of the Indenture, the Disclosure Certificate and the Escrow Agreement, duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to in writing by the Underwriter;
(2) An approving opinion, dated the Closing Date and addressed to the District, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, in substantially the form attached as Appendix D to the Official Statement, together with a letter from said Bond Counsel authorizing the Underwriter to rely on said opinion, and a supplemental opinion in form acceptable to the Underwriter and the District, dated the Closing Date and addressed to the Underwriter and the District, to the effect that:
(i) the Bond Purchase Agreement has been duly executed and delivered by the District and, assuming due authorization, execution and delivery by the Underwriter, is a valid and binding obligation of the District, subject to laws relating to bankruptcy, insolvency, reorganization arrangement, fraudulent conveyance, moratorium or other laws affecting creditors’ rights generally, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against a local health care district in the State of California;
(ii) the statements contained in the Official Statement in the sections thereof entitled: “THE BONDS,” “SECURITY FOR THE BONDS,” “TAX MATTERS,” “EXHIBIT C—SUMMARY OF PRINCIPAL LEGAL DOCUMENTS,” and “EXHIBIT D—FORM OF FINAL OPINION OF BOND COUNSEL,” insofar as such statements expressly summarize certain provisions of the Bonds, the Indenture, the Disclosure Certificate, the Escrow Agreement and Bond Counsel’s opinion concerning certain tax matters are accurate in all material respects; and
(iii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification as an indenture pursuant to the Trust Indenture Act of 1939, as amended.
(3) An opinion dated the Closing Date and addressed to the District and the Underwriter, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the District, in substantially the form attached hereto as Exhibit C.
(4) A certificate of the Executive Director of the District, or such other officer as is acceptable to the Underwriter, dated the Closing Date, to the effect that the representations and agreements of the District contained herein are true and correct in all material respects as of the Closing Date, and:
(i) no litigation is pending or, to the knowledge of such officer, threatened
(a) to restrain or enjoin the issuance or delivery of any of the Bonds or the collection of Revenues pledged under the Indenture, (b) in any way contesting or affecting the authority for the issuance of the Bonds or the validity of the Bonds, the Indenture, the Disclosure Certificate or this Bond Purchase Agreement, or (c) in any way contesting the existence or powers of the District;
(ii) no event affecting the District has occurred since the date of the Official Statement which would cause as of the Closing Date any statement or information contained in the Official Statement to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements and information therein, in the light of the circumstances under which they were made, not misleading;
(iii) since June 30, 2021, no material and adverse change has occurred in the financial position or results of operations of the District other than as is set forth in the Official Statement;
(iv) the District has not, since June 30, 2021, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Official Statement; and
(v) no proceedings are pending or threatened (1) in any way contesting or affecting the District’s status as a local health care district or (2) to subject any income of the District to federal income taxation;
(5) Satisfactory evidence that the Bonds have been rated “ ” or better by ▇▇▇▇▇’▇ Investors Service;
(6) An opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Salmon, P.L.C., as disclosure counsel (“Disclosure Counsel”), addressed to the District and the Underwriter, to the effect that the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and to the effect that, based upon its participation in the preparation of the Official Statement as Disclosure Counsel and without having undertaken to determine independently the fairness, accuracy or completeness of the statements contained in the Official Statement, such counsel has no reason to believe that, as of the date of the Official Statement or as of the date of Closing, the Official Statement (excluding therefrom the reports, financial and statistical data and forecasts therein, the information with respect to DTC and the book-entry system and the information included in Appendices thereto, as to which no opinion need be expressed) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(7) A certified copy . There shall have occurred any materially adverse change in the affairs or financial condition of the Resolution authorizing Authority or the execution and delivery Community Facilities Districts;
8. Any national securities exchange, the Comptroller of the Currency, or any other governmental authority, shall impose as to the Bonds, the IndentureLocal Obligations or obligations of the general character of the Bonds or the Local Obligations, any material restrictions not now in force, or increase materially those now in force, with respect to the extension of credit by, or the charge to the net capital requirements of, the Disclosure CertificateUnderwriter;
9. There shall have occurred (1) an outbreak or escalation of hostilities or the declaration by the United States of a national emergency or war or (2) any other calamity or crisis in the financial markets of the United States or elsewhere or the escalation of such calamity or crisis;
10. The purchase of and payment for the Bonds by the Underwriter, or the resale of the Bonds by the Underwriter, on the terms and conditions herein provided shall be prohibited by any applicable law, governmental authority, board, agency or commission;
11. Any new restriction on transactions in securities materially affecting the market for securities (including the imposition of any limitation or interest rates) or the extension of credit by, or a charge to the net capital requirements of credit by, or a charge to net capital requirements of, underwriters shall have been established by the New York Stock Exchange, the Bond Purchase AgreementSEC, any other federal or State agency or the Escrow Agreement and the Official Statement and ratifying the distribution Congress of the Preliminary Official Statement and authorizing distribution United States of the Official StatementAmerica, or by Executive Order;
(8) An opinion of counsel to the Trustee in form and substance satisfactory to the Underwriter and Bond Counsel;
(9) 12. A certificate of the Trustee, dated the Closing Date and signed decision by an authorized Underwriter of the Trustee, to the effect that:
(i) The Trustee is a duly organized and existing national banking association in good standing under the laws court of the United States of America shall be rendered, or a stop order, release, regulation or no-action letter by or on behalf of the SEC or any other governmental agency having jurisdiction of the subject matter shall have been issued or made, to the effect that the issuance, offering or sale of the Bonds, including the underlying obligations as contemplated by this Purchase Agreement or by the Official Statement, or any document relating to the issuance, offering or sale of the Bonds, is or would be in violation of any provision of the federal securities laws at the Closing Date, including Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and has all necessary power and authority to enter into and perform its duties under the IndentureTrust Indenture Act of 1939, as amended;
(ii13. The withdrawal or downgrading or the placing on credit watch with negative outlook of any rating on the Bonds by a national rating agency;
14. A material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred;
15. The commencement of any Action, as set forth in Section 2(F) hereof;
16. There shall have occurred any national or international calamity or crisis in the financial markets or otherwise of the United States or elsewhere; or
17. Any proceeding shall have been commenced or be threatened in writing by the Securities and Exchange Commission against the Community Facilities Districts or the Authority.
E. At or prior to the Closing Date, the Underwriter shall have received a counterpart original or certified copy of the following documents, in each case satisfactory in form and substance to the Underwriter:
1. The Trustee is duly Official Statement, executed on behalf of the Authority by its Executive Director or other authorized to enter into the Indenture and has officer;
2. The Authority Documents, duly executed and delivered the Indentureby all parties thereto;
(iii) 3. The Bonds have been duly authenticated and delivered by the Trustee;
(iv) The execution and delivery of the Indenture and the authentication and delivery of the Bonds and compliance Authority Resolution, together with the provisions thereof, will not conflict with, or constitute a breach of or default under, the Trustee’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Trustee is subject or by which it is or may be bound; provided, however, the Trustee need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(v) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Trustee’s knowledge, threatened against the Trustee, affecting the existence of the Trustee, or the entitlement of its officers to their respective offices or seeking to prohibit, restrain or enjoin the execution and delivery of the Bonds or the collection of revenues pledged or to be pledged to pay the principal, redemption premium, if any, and interest represented by the Bonds, or the pledge thereof, or in any way contesting or affecting the validity or enforceability of the Indenture, or the Bonds; or contesting the power or authority of the Trustee to enter into, adopt or perform its obligations under any of the foregoing, wherein an unfavorable decision, ruling or finding would materially adversely affect the validly or enforceability of the Indenture or the Bonds;
(10) An opinion of counsel to the Escrow Bank in form and substance satisfactory to the Underwriter and Bond Counsel;
(11) A certificate of the Escrow BankSecretary of the Authority, dated as of the Closing Date and signed by an authorized Underwriter of the Escrow BankDate, to the effect that:
(i) The Escrow Bank that such resolution is a duly organized true, correct and existing national banking association in good standing under the laws complete copy of the United States resolution duly adopted by the Board of America and has all necessary power and authority to enter into and perform its duties under Directors of the Escrow AgreementAuthority;
(ii) 4. The Escrow Bank is duly authorized to enter into the Escrow Agreement and has duly executed and delivered the Escrow Agreement;
(iii) The execution and delivery Districts Resolutions, together with a certificate dated as of the Escrow Agreement and compliance with Closing Date of the provisions thereof, will not conflict with, or constitute a breach of or default under, the Escrow Bank’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Escrow Bank is subject or by which it is or may be bound; provided, however, the Escrow Bank need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(iv) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, City Clerk to the best effect that the Districts Resolutions are true, correct and complete copies of the Escrow Bank’s knowledgeresolutions duly adopted by the City Council, threateacting as the legislative body of the Community Facilities Districts;
Appears in 1 contract
Sources: Bond Purchase Agreement