Authority Representations, Warranties and Covenants. The Authority represents, warrants and covenants to the City and the Underwriter that: (a) The Authority is a joint powers authority, duly created and lawfully existing under the laws of the State with full right, power and authority to enter into, execute and deliver the Authority Documents (defined below) and to perform its obligations hereunder. (b) By all necessary official action, the Authority has duly authorized and approved the execution and delivery of, and the performance by the Authority of the obligations on its part contained in the Agreement, Bonds, Indenture, Ground Lease, Lease and Assignment Agreement, dated as of February 1, 2016 (the “Assignment Agreement”), between the Trustee and the Authority (collectively, the “Authority Documents”), and has approved the use by the Underwriter of the Preliminary Official Statement, and the Official Statement and, as of the date hereof, such authorizations and approvals are in full force and effect and have not been amended, modified or rescinded. When executed and delivered by the parties hereto, the Authority Documents will constitute the legally valid and binding obligations of the Authority enforceable upon the Authority in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors rights generally. The Authority has complied, and will at the Closing be in compliance in all respects, with the terms of the Authority Documents. (c) The Bonds, when issued in accordance with the Indenture, will be legally valid and binding special obligations of the Authority, entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally. (d) Except as otherwise disclosed in the Official Statement, (i) the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or event of default under any such instrument which breach, default or event could have an adverse effect on the Authority’s ability to perform its obligations under the Authority Documents; and (ii) the authorization, execution and delivery of the Authority Documents and compliance by the Authority with the provisions thereof do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound, nor will any such authorization, execution, delivery 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 its assets or properties or under the terms of any such law, regulation or instrument except as provided in the Authority Documents. (e) As of the time of acceptance hereof and the Closing, except as disclosed in the Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, pending (notice of which has been received by the Authority), or to the best knowledge of the Authority threatened against the Authority: (i) in any way questioning the corporate existence of the Authority or the titles of the officers of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Authority Documents or the consummation of the transactions on the part of the Authority contemplated thereby, or contesting the exclusion of the interest on the Bonds from federal or State taxation, as applicable, or contesting the powers of the Authority or its authority to enter into the Lease and to pledge the Revenues for repayment of the Bonds; (iii) that may result in any material adverse change relating to the financial condition of the Authority; (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of all the circumstances under which they were made, not misleading; or (v) challenging the ability of the Authority to sell the Bonds to the Underwriter. (f) All authorizations, approvals, licenses, permits, consents and orders of or filings with any governmental authority, legislative body, board, agency or commission having jurisdiction in the matters that are required for the due authorization of the Authority Documents, which would constitute a condition precedent to or the absence of which would adversely affect the due performance by the Authority of its obligations in connection with the Authority Documents, have been duly obtained or made, except as may be required under the blue sky or securities laws of any state in connection with the offering and sale of the Bonds. (g) Any certificate signed by any authorized officer of the Authority and delivered to the Underwriter shall be deemed to be a representation and warranty by the Authority to the Underwriter as to the statements made therein. (h) The Authority has not been notified of any listing or proposed listing by the Internal Revenue Service to the effect that either the City or the Authority is a bond issuer whose arbitrage certifications may not be relied upon. (i) The Authority will advise the Underwriter promptly of any proposal to amend or supplement the Official Statement from the delivery of the Official Statement to the End Date, and will not effect or consent to any such amendment or supplement without the consent of the Underwriter, which consent will not be unreasonably withheld. The Authority will advise the Underwriter promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Official Statement in connection with the offering, sale or distribution of the Bonds. (j) For a period beginning on the date hereof and continuing until the End Date, (a) the Authority will not adopt any amendment of, or supplement to, the Official Statement to which the Underwriter shall object in writing or which shall be disapproved by the Underwriter’s counsel and (b) if any event relating to or affecting the Authority shall occur as a result of which it is necessary, in the opinion of Underwriter’s counsel, to amend or supplement the Official Statement in order to make the Official Statement not misleading in the light of the circumstances existing at the time it is delivered to a purchaser of the Bonds, the Authority will forthwith cause the Authority to prepare and furnish to the Underwriter a reasonable number of copies of an amendment of, or supplement to, the Official Statement (in form and substance satisfactory to Underwriter’s Counsel) that will amend or supplement the Official Statement so that it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Official Statement is delivered to a purchaser of the Bonds, not misleading.
Appears in 1 contract
Samples: Bond Purchase Agreement
Authority Representations, Warranties and Covenants. The Authority represents, warrants and covenants to the City and the Underwriter that:
(a) The Authority is a joint powers authority, duly created organized and lawfully existing under the Constitution (the “Constitution”) and laws of the State State, including Government Code 6500 et seq., with full right, power and authority to enter into, execute and deliver the Authority Documents (defined below) and to perform its obligations hereunder.
(b) By all necessary official action, the Authority has duly authorized and approved the execution and delivery of, and the performance by the Authority of the obligations on its part contained in the Bond Purchase Agreement, the Bonds, the Indenture, the Ground Lease, Lease and Assignment Agreement, dated as of February 1, 2016 (the “Assignment Agreement”), between the Trustee and the Authority Lease (collectively, the “Authority Documents”), and has approved the use by the Underwriter of the Preliminary Official Statement, and the Official Statement and, as of the date hereof, such authorizations and approvals are in full force and effect and have not been amended, modified or rescinded. When executed and delivered by the parties hereto, the Authority Documents will constitute the legally valid and binding obligations of the Authority enforceable upon the Authority in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors rights generally, to the exercise of judicial discretion and to the limitations on legal remedies against joint powers authorities in California. The Authority has complied, complied and will at the Closing be in compliance in all respects, with the terms of the Authority Documents.
(c) The Bonds, when issued in accordance with the Indenture, will be legally valid and binding special limited obligations of the Authority, entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally, to the exercise of judicial discretion and to the limitations on legal remedies against joint powers authorities in California.
(d) Except As of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Official Statement, (i) to the best knowledge of the Authority, the Authority is not and will not be in any material respect in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or event of default under any such instrument which breach, default or event could have an adverse effect on the Authority’s ability to perform its obligations under the Authority Documents; and (ii) and, as of such times, except as disclosed in the Official Statement, the authorization, execution and delivery of the Authority Documents and compliance by the Authority with the provisions thereof do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound, nor will any such authorization, execution, delivery 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 its assets or properties or under the terms of any such law, regulation or instrument except as provided in the Authority Documents.
(e) As of the time of acceptance hereof and the Closing, except as disclosed in the Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, pending (notice of which has been received by the Authority), or to the best knowledge of the Authority threatened against the AuthorityAuthority in any material respect:
(i) in any way questioning affecting the corporate existence of the Authority or the titles of the officers of the Authority to their respective offices;
(ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Authority Documents or the consummation of the transactions on the part of the Authority contemplated thereby, or contesting the exclusion of the interest on the Bonds from federal Federal or State taxation, as applicable, or contesting the powers of the Authority or its authority to enter into the Ground Lease or the Lease and to pledge the Revenues Base Rental Payments for repayment of the Bonds;
(iii) that which may result in any material adverse change relating to the financial condition of the Authority;
(iv) contesting the completeness or accuracy of the Preliminary Official Statement as of its date or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement as of its date or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of all the circumstances under which they were made, not misleading; oror Underwriter.
(v) challenging the ability of the Authority to sell the Bonds to the Underwriter.
(f) All authorizations, approvals, licenses, permits, consents and orders of or filings with any governmental authority, legislative body, board, agency or commission having jurisdiction in the matters that are required for the due authorization of the Authority Documents, which would constitute a condition precedent to or the absence of which would adversely affect the due performance by the Authority of its obligations in connection with the Authority Documents, have been duly obtained or made, except as may be required under the blue sky or securities laws of any state in connection with the offering and sale of the Bonds.
(g) Any certificate signed by any authorized officer of the Authority and delivered to the Underwriter shall be deemed to be a representation and warranty by the Authority to the Underwriter as to the statements made therein.
(h) The Authority has not been notified of any listing or proposed listing by the Internal Revenue Service to the effect that either the City or the Authority is a bond issuer whose arbitrage certifications may not be relied upon.
(i) The Authority will advise the Underwriter promptly of any proposal to amend or supplement the Official Statement from the delivery of the Official Statement to the End Datefurnish such information, execute such instruments and will not effect or consent to any such amendment or supplement without the consent of the Underwriter, which consent will not be unreasonably withheld. The Authority will advise the Underwriter promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Official Statement in connection with the offering, sale or distribution of the Bonds.
(j) For a period beginning on the date hereof and continuing until the End Date, (a) the Authority will not adopt any amendment of, or supplement to, the Official Statement to which the Underwriter shall object in writing or which shall be disapproved by the Underwriter’s counsel and (b) if any event relating to or affecting the Authority shall occur as a result of which it is necessary, in the opinion of Underwriter’s counsel, to amend or supplement the Official Statement in order to make the Official Statement not misleading in the light of the circumstances existing at the time it is delivered to a purchaser of the Bonds, the Authority will forthwith cause the Authority to prepare and furnish to the Underwriter a reasonable number of copies of an amendment of, or supplement to, the Official Statement (in form and substance satisfactory to Underwriter’s Counsel) that will amend or supplement the Official Statement so that it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Official Statement is delivered to a purchaser of the Bonds, not misleading.take
Appears in 1 contract
Samples: Bond Purchase Agreement
Authority Representations, Warranties and Covenants. The Authority represents, warrants and covenants to the City and the Underwriter that:
(a) The Authority is a joint exercise of powers authorityagency, duly created organized and lawfully validly existing under pursuant to the Constitution and laws of the State with full rightof California (the “State”), and has all necessary power and authority to enter into, execute into and deliver the Authority Documents (defined below) and to perform its obligations hereunder.
(b) By all necessary official actionduties under the Indenture, the Authority has duly authorized and approved the execution and delivery of, and the performance by the Authority of the obligations on its part contained in the Agreement, Bonds, Indenture, Ground Lease, Lease and Assignment AgreementContinuing Disclosure Certificate, dated as of February 1, 2016 the Closing Date (the “Assignment AgreementContinuing Disclosure Certificate”), between the Trustee and of the Authority and this Purchase Contract (collectively, the “Authority Documents”), and has approved the use by the Underwriter of the Preliminary Official Statement, and the Official Statement and, as of the date hereof, such authorizations and approvals are in full force and effect and have not been amended, modified or rescinded. When executed and delivered by the parties hereto, the Authority Documents will constitute the legally valid and binding obligations of the Authority enforceable upon the Authority in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors rights generally. The Authority has complied, and will at the Closing be in compliance in all respects, with the terms of the Authority Documents.
(cb) The Bonds, when issued in accordance with the Indenture, will be legally valid and binding special obligations of the Authority, entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally.
(dc) Except as otherwise disclosed in To the best knowledge of the Authority, neither the execution and delivery of the Authority Documents, or the approval and execution of the Official StatementStatement or this Purchase Contract, (i) and compliance with the Authority is not provisions on the Authority’s part contained therein, nor the consummation of any other of the transactions herein and will not be in therein contemplated, nor the fulfillment of the terms hereof and thereof, materially conflicts with or constitutes a material breach of or in default under nor materially contravenes any applicable constitutional provisionlaw, law or administrative rule or regulation of the State or the United Statesregulation, or any applicable judgment or decree or any trust agreementjudgment, decree, loan agreement, indenture, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or event of default under nor does any such instrument which breach, default or event could have an adverse effect on the Authority’s ability to perform its obligations under the Authority Documents; and (ii) the authorization, execution and delivery of the Authority Documents and compliance by the Authority with the provisions thereof do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound, nor will any such authorization, execution, delivery delivery, adoption or compliance result in the creation or imposition of any lien, charge or other a security interest or encumbrance of any nature whatsoever upon any of its assets or the properties or assets of the Authority under the terms of any such law, regulation administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or instrument other instrument, except as provided in by the Authority Documents.
(ed) As The Authority Documents have been duly authorized, executed and delivered by the Authority, and, assuming due authorization, execution and delivery by the other parties thereto, as applicable, constitute legal, valid and binding agreements of the time of acceptance hereof and the ClosingAuthority enforceable in accordance with their respective terms, except as disclosed 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 and agencies in the Official StatementState of California.
(e) Except as may be required under blue sky or other securities laws of any state, there is no consent, approval, authorization or other order of, or filing with, or certification by, any regulatory agency having jurisdiction over the Authority required for the consummation by the Authority of the transactions contemplated by the Official Statement and this Purchase Contract.
(f) To the best of the knowledge of the Authority, there is, and on the Closing there will be, no action, suit, proceeding, inquiry proceeding or investigation, investigation at law or in equity, equity before or by any court, government agency, public board court or body, governmental agency or body pending (notice of which has been received by the Authority), or to the best knowledge of the Authority threatened against the Authority:
(i) in any way questioning the corporate existence of the Authority or the titles of the officers of the Authority to their respective offices;
(ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Authority Documents or the consummation of the transactions on the part authority of the Authority contemplated therebyto approve this Purchase Contract, or contesting enter into the exclusion of the interest on the Bonds from federal or State taxation, as applicable, Authority Documents or contesting the powers of the Authority or its authority to enter into the Lease and to pledge the Revenues for repayment or perform its obligations under any of the Bonds;
(iii) that may result foregoing or in any material adverse change relating to way contesting the financial condition powers of the Authority;
(iv) contesting Authority in connection with any action contemplated by this Purchase Contract or to restrain or enjoin the completeness or accuracy of execution of, or, except as described in the Preliminary Official Statement and the Official Statement, the issuance or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, nor is there any basis for any such action, suit, proceeding or investigation.
(g) The Preliminary Official Statement provided to the Underwriter has been deemed final by the Authority, as required by Rule 15c2-12. As of the date thereof and at all times subsequent thereto up to and including the End Date, the information relating to the Authority, the Bonds, the Enterprise and the Authority Documents contained in the Official Statement or any supplement or amendment thereto or asserting that was and will be materially complete for its intended purposes. The information relating to the Preliminary Official Statement or Authority, the Bonds, the Enterprise and the Authority Documents contained in the Official Statement (excluding any information with respect to DTC, the book-entry only system, the Trustee, the Insurance Policy or the Insurer (as defined in the Official Statement and discussed below)) is true and correct in all material respects and such information does not contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading in any material respect.
(h) The Authority agrees to cooperate with the Underwriter in endeavoring to qualify the Bonds for offering and sale under the securities or blue sky laws of such jurisdictions of the United States as the Underwriter may request; provided, however, that the Authority will not be required to execute a special or general consent to service of process in any jurisdiction in which it is not now so subject.
(i) By official action of the Authority prior to or concurrently with the execution hereof, the Authority has duly approved the distribution of the Official Statement, and has duly authorized and approved the execution and delivery of, and the performance by the Authority of the obligations on its part contained in the Authority Documents and the consummation by it of all other transactions contemplated by the Official Statement and this Purchase Contract.
(j) To the best knowledge of the Authority, it is not in breach of or default under any material applicable law or administrative regulation of the State of California or the United States or any material applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the Authority is a party or is otherwise subject and in connection with which the Authority is obligated to make payments from its own funds, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument the consequence of which could be to materially and adversely affect the performance of the Authority under the Authority Documents.
(k) If between the date of this Purchase Contract and the End Date an event occurs, of which the Authority has knowledge, which might or would cause the information relating to the Authority, the Enterprise or the Authority’s functions, duties and responsibilities contained in the Official Statement, as then supplemented or amended, to contain an untrue statement of a material fact or omitted to omit to state any a material fact required to be stated therein or necessary to make the statements such information therein, in the light of all the circumstances under which they were madeit was presented, not misleading; ormisleading in any material respect, the Authority will notify the Underwriter, and if, in the opinion of the Underwriter, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the Authority will cooperate with the Underwriter in the preparation of an amendment or supplement to the Official Statement in a form and in a manner approved by the Underwriter, provided all expenses thereby incurred will be paid for by the Authority.
(vl) challenging If the ability information relating to the Enterprise, the Authority, its functions, duties and responsibilities contained in the Official Statement is amended or supplemented pursuant to the immediately preceding subparagraph, at the time of each supplement or amendment thereto and (unless subsequently again supplemented or amended pursuant to such subparagraph) at all times subsequent thereto up to and including the date of the Closing, the portions of the Official Statement so supplemented or amended (including any financial and statistical data contained therein) will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make such information therein, in the light of the circumstances under which it was presented, not misleading in any material respect.
(m) The Authority covenants that it will comply with all tax covenants relating to it in the Authority Documents, the Tax Certificate of the Authority and this Purchase Contract.
(n) Substantially all the proceeds from the sale of the Bonds (after deducting the expenses of issuance and sale of the Bonds paid for from such proceeds) will be used to sell finance and/or refinance certain improvements to the Enterprise, and the Authority will not take or omit to take any action which action or omission will in any way cause the proceeds from the sale of the Bonds to be applied in a manner contrary to that provided in the UnderwriterIndenture.
(fo) The Authority will deliver all opinions, certificates, letters and other instruments and documents reasonably required by the Underwriter and this Purchase Contract.
(p) Any certificate of the Authority delivered to the Underwriter shall be deemed a representation and warranty by the Authority to the Underwriter as to the statements made therein.
(q) As of the time of acceptance hereof and as of the Closing, the Authority does not, and will not have outstanding, any indebtedness which is secured by a lien on Revenues except as disclosed in the Official Statement.
(r) Between the date of this Purchase Contract and the date of Closing, the Authority will not, without the prior written consent of the Underwriter, and except as disclosed in the Official Statement, offer or issue any certificates, notes or other obligations for borrowed money, or incur any material liabilities, direct or contingent, secured by a lien on Net Revenues.
(s) All authorizations, approvals, licenses, permits, consents and orders of or filings with any governmental authority, legislative body, board, agency or commission having jurisdiction in the matters that which are required for the due authorization of the Authority Documentsof, which would constitute a condition precedent to or the absence of which would adversely affect the due performance by the Authority of its obligations in connection with with, the Authority Documents, Documents have been duly obtained or made, except as may be required under the blue sky Blue Sky or securities laws of any state in connection with the offering and sale of the Bonds.
(g) Any certificate signed by any authorized officer of the Authority and delivered to the Underwriter shall be deemed to be a representation and warranty by the Authority to the Underwriter as to the statements made therein.
(ht) The Authority has not been notified of any listing or proposed listing by the Internal Revenue Service to the effect that either the City or the Authority is a bond issuer whose arbitrage certifications may not be relied upon.
(iu) The written information supplied by the Authority will advise to the Underwriter promptly of any proposal to amend or supplement the Official Statement from the delivery of the Official Statement with respect to the End Datefinancial information relating to the Enterprise is true, correct and will not effect or consent to any such amendment or supplement without complete in all material respects for the consent of the Underwriter, purposes for which consent will not be unreasonably withheld. The Authority will advise the Underwriter promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Official Statement in connection with the offering, sale or distribution of the Bondswas supplied.
(jv) For a period beginning on Except as otherwise described in the date hereof and continuing until the End Date, (a) the Authority will not adopt any amendment of, or supplement to, the Preliminary Official Statement to which the Underwriter shall object in writing or which shall be disapproved by the Underwriter’s counsel and (b) if any event relating to or affecting the Authority shall occur as a result of which it is necessary, in the opinion of Underwriter’s counsel, to amend or supplement the Official Statement in order to make the Official Statement not misleading in the light of the circumstances existing at the time it is delivered to a purchaser of the BondsStatement, the Authority will forthwith cause has not failed in any material respect to comply with any undertaking of the Authority to prepare and furnish to the Underwriter a reasonable number of copies of an amendment of, or supplement to, the Official Statement (in form and substance satisfactory to Underwriter’s Counsel) that will amend or supplement the Official Statement so that it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, under Rule 15c2-12 in the light of the circumstances existing at the time the Official Statement is delivered to a purchaser of the Bonds, not misleadingprevious five years.
Appears in 1 contract
Samples: Purchase Contract
Authority Representations, Warranties and Covenants. The Authority represents, warrants and covenants to the City and the Underwriter that:
(a) The Authority is a joint exercise of powers authorityagency, duly created organized and lawfully validly existing under pursuant to the Constitution and laws of the State with full rightof California (the “State”), and has all necessary power and authority to enter into, execute into and deliver the Authority Documents (defined below) and to perform its obligations hereunder.
(b) By all necessary official actionduties under the Indenture, the Authority has duly authorized and approved the execution and delivery of, and the performance by the Authority of the obligations on its part contained in the Agreement, Bonds, Indenture, Ground Lease, Lease and Assignment AgreementContinuing Disclosure Certificate, dated as of February 1, 2016 the Closing Date (the “Assignment AgreementContinuing Disclosure Certificate”)) of the Authority, between the Trustee Escrow Agreement and the Authority this Purchase Contract (collectively, the “Authority Documents”), and has approved the use by the Underwriter of the Preliminary Official Statement, and the Official Statement and, as of the date hereof, such authorizations and approvals are in full force and effect and have not been amended, modified or rescinded. When executed and delivered by the parties hereto, the Authority Documents will constitute the legally valid and binding obligations of the Authority enforceable upon the Authority in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors rights generally. The Authority has complied, and will at the Closing be in compliance in all respects, with the terms of the Authority Documents.
(cb) The Bonds, when issued in accordance with the Indenture, will be legally valid and binding special obligations of the Authority, entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally.
(dc) Except as otherwise disclosed in To the best knowledge of the Authority, neither the execution and delivery of the Authority Documents, or the approval and execution of the Official StatementStatement or this Purchase Contract, (i) and compliance with the Authority is not provisions on the Authority’s part contained therein, nor the consummation of any other of the transactions herein and will not be in therein contemplated, nor the fulfillment of the terms hereof and thereof, materially conflicts with or constitutes a material breach of or in default under nor materially contravenes any applicable constitutional provisionlaw, law or administrative rule or regulation of the State or the United Statesregulation, or any applicable judgment or decree or any trust agreementjudgment, decree, loan agreement, indenture, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or event of default under nor does any such instrument which breach, default or event could have an adverse effect on the Authority’s ability to perform its obligations under the Authority Documents; and (ii) the authorization, execution and delivery of the Authority Documents and compliance by the Authority with the provisions thereof do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound, nor will any such authorization, execution, delivery delivery, adoption or compliance result in the creation or imposition of any lien, charge or other a security interest or encumbrance of any nature whatsoever upon any of its assets or the properties or assets of the Authority under the terms of any such law, regulation administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or instrument other instrument, except as provided in by the Authority Documents.
(ed) As The Authority Documents have been duly authorized, executed and delivered by the Authority, and, assuming due authorization, execution and delivery by the other parties thereto, as applicable, constitute legal, valid and binding agreements of the time of acceptance hereof and the ClosingAuthority enforceable in accordance with their respective terms, except as disclosed 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 and agencies in the Official StatementState of California.
(e) Except as may be required under blue sky or other securities laws of any state, there is no consent, approval, authorization or other order of, or filing with, or certification by, any regulatory agency having jurisdiction over the Authority required for the consummation by the Authority of the transactions contemplated by the Official Statement and this Purchase Contract.
(f) To the best of the knowledge of the Authority, there is, and on the Closing there will be, no action, suit, proceeding, inquiry proceeding or investigation, investigation at law or in equity, equity before or by any court, government agency, public board court or body, governmental agency or body pending (notice of which has been received by the Authority), or to the best knowledge of the Authority threatened against the Authority:
(i) in any way questioning the corporate existence of the Authority or the titles of the officers of the Authority to their respective offices;
(ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Authority Documents or the consummation of the transactions on the part authority of the Authority contemplated therebyto approve this Purchase Contract, or contesting enter into the exclusion of the interest on the Bonds from federal or State taxation, as applicable, Authority Documents or contesting the powers of the Authority or its authority to enter into the Lease and to pledge the Revenues for repayment or perform its obligations under any of the Bonds;
(iii) that may result foregoing or in any material adverse change relating to way contesting the financial condition powers of the Authority;
(iv) contesting Authority in connection with any action contemplated by this Purchase Contract or to restrain or enjoin the completeness or accuracy of execution of, or, except as described in the Preliminary Official Statement and the Official Statement, the issuance or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, nor is there any basis for any such action, suit, proceeding or investigation.
(g) The Preliminary Official Statement provided to the Underwriter has been deemed final by the Authority, as required by Rule 15c2-12. As of the date thereof and at all times subsequent thereto up to and including the End Date, the information relating to the Authority, the Bonds, the Enterprise and the Authority Documents contained in the Official Statement or any supplement or amendment thereto or asserting that was and will be materially complete for its intended purposes. The information relating to the Preliminary Official Statement or Authority, the Bonds, the water system of the City of Coachella (such system is designated, the “Enterprise”) and the Authority Documents contained in the Official Statement (excluding any information with respect to DTC, the book-entry only system, the Trustee, the Insurance Policy or the Insurer (as defined in the Official Statement and discussed below)) is true and correct in all material respects and such information does not contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading in any material respect.
(h) The Authority agrees to cooperate with the Underwriter in endeavoring to qualify the Bonds for offering and sale under the securities or blue sky laws of such jurisdictions of the United States as the Underwriter may request; provided, however, that the Authority will not be required to execute a special or general consent to service of process in any jurisdiction in which it is not now so subject.
(i) By official action of the Authority prior to or concurrently with the execution hereof, the Authority has duly approved the distribution of the Official Statement, and has duly authorized and approved the execution and delivery of, and the performance by the Authority of the obligations on its part contained in the Authority Documents and the consummation by it of all other transactions contemplated by the Official Statement and this Purchase Contract.
(j) To the best knowledge of the Authority, it is not in breach of or default under any material applicable law or administrative regulation of the State of California or the United States or any material applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the Authority is a party or is otherwise subject and in connection with which the Authority is obligated to make payments from its own funds, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument the consequence of which could be to materially and adversely affect the performance of the Authority under the Authority Documents.
(k) If between the date of this Purchase Contract and the End Date and the Settlement an event occurs, of which the Authority has knowledge, which might or would cause the information relating to the Authority, the Enterprise or the Authority’s functions, duties and responsibilities contained in the Official Statement, as then supplemented or amended, to contain an untrue statement of a material fact or omitted to omit to state any a material fact required to be stated therein or necessary to make the statements such information therein, in the light of all the circumstances under which they were madeit was presented, not misleading; ormisleading in any material respect, the Authority will notify the Underwriter, and if, in the opinion of the Underwriter, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the Authority will cooperate with the Underwriter in the preparation of an amendment or supplement to the Official Statement in a form and in a manner approved by the Underwriter, provided all expenses thereby incurred will be paid for by the Authority.
(vl) challenging If the ability information relating to the Enterprise, the Authority, its functions, duties and responsibilities contained in the Official Statement is amended or supplemented pursuant to the immediately preceding subparagraph, at the time of each supplement or amendment thereto and (unless subsequently again supplemented or amended pursuant to such subparagraph) at all times subsequent thereto up to and including the date of the Closing and the Settlement, the portions of the Official Statement so supplemented or amended (including any financial and statistical data contained therein) will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make such information therein, in the light of the circumstances under which it was presented, not misleading in any material respect.
(m) The Authority covenants that it will comply with all tax covenants relating to it in the Authority Documents, the Tax Certificate of the Authority and this Purchase Contract.
(n) Substantially all the proceeds from the sale of the Bonds (after deducting the expenses of issuance and sale of the Bonds paid for from such proceeds) will be used to sell finance and/or refinance certain improvements to the Enterprise, and the Authority will not take or omit to take any action which action or omission will in any way cause the proceeds from the sale of the Bonds to be applied in a manner contrary to that provided in the UnderwriterIndenture.
(fo) The Authority will deliver all opinions, certificates, letters and other instruments and documents reasonably required by the Underwriter and this Purchase Contract.
(p) Any certificate of the Authority delivered to the Underwriter shall be deemed a representation and warranty by the Authority to the Underwriter as to the statements made therein.
(q) As of the time of acceptance hereof and as of the Closing and the Settlement, the Authority does not, and will not have outstanding, any indebtedness which is secured by a lien on Net Revenues except as disclosed in the Official Statement.
(r) Between the date of this Purchase Contract and the date of Closing and the Settlement, the Authority will not, without the prior written consent of the Underwriter, and except as disclosed in the Official Statement, offer or issue any certificates, notes or other obligations for borrowed money, or incur any material liabilities, direct or contingent, secured by a lien on Net Revenues.
(s) All authorizations, approvals, licenses, permits, consents and orders of or filings with any governmental authority, legislative body, board, agency or commission having jurisdiction in the matters that which are required for the due authorization of the Authority Documentsof, which would constitute a condition precedent to or the absence of which would adversely affect the due performance by the Authority of its obligations in connection with with, the Authority Documents, Documents have been duly obtained or made, except as may be required under the blue sky Blue Sky or securities laws of any state in connection with the offering and sale of the Bonds.
(g) Any certificate signed by any authorized officer of the Authority and delivered to the Underwriter shall be deemed to be a representation and warranty by the Authority to the Underwriter as to the statements made therein.
(ht) The Authority has not been notified of any listing or proposed listing by the Internal Revenue Service to the effect that either the City or the Authority is a bond issuer whose arbitrage certifications may not be relied upon.
(iu) The written information supplied by the Authority will advise to the Underwriter promptly of any proposal to amend or supplement the Official Statement from the delivery of the Official Statement with respect to the End Datefinancial information relating to the Enterprise is true, correct and will not effect or consent to any such amendment or supplement without complete in all material respects for the consent of the Underwriter, purposes for which consent will not be unreasonably withheld. The Authority will advise the Underwriter promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Official Statement in connection with the offering, sale or distribution of the Bondswas supplied.
(jv) For a period beginning on Except as otherwise described in the date hereof and continuing until the End Date, (a) the Authority will not adopt any amendment of, or supplement to, the Preliminary Official Statement to which the Underwriter shall object in writing or which shall be disapproved by the Underwriter’s counsel and (b) if any event relating to or affecting the Authority shall occur as a result of which it is necessary, in the opinion of Underwriter’s counsel, to amend or supplement the Official Statement in order to make the Official Statement not misleading in the light of the circumstances existing at the time it is delivered to a purchaser of the BondsStatement, the Authority will forthwith cause has not failed in any material respect to comply with any undertaking of the Authority to prepare and furnish to the Underwriter a reasonable number of copies of an amendment of, or supplement to, the Official Statement (in form and substance satisfactory to Underwriter’s Counsel) that will amend or supplement the Official Statement so that it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, under Rule 15c2-12 in the light of the circumstances existing at the time the Official Statement is delivered to a purchaser of the Bonds, not misleadingprevious five years.
Appears in 1 contract
Samples: Forward Delivery Purchase Contract
