Conditions to the Obligations of the Underwriter. The Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of the Authority contained herein. 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 statements of the officers and other officials of the Authority, as well as authorized representatives of Bond Counsel and the Trustee made in any Bonds or other documents furnished pursuant to the provisions hereof; to the performance by the Authority of its obligations to be performed hereunder at or prior to the Closing Date; and to the following additional conditions: (a) The representations, warranties and covenants of the Authority contained herein shall be true and correct at the date hereof and at the time of the Closing, as if made on the Closing Date. (b) At the time of Closing, the Authority Documents shall be in full force and effect as valid and binding agreements between or among the various parties thereto, and the Authority Documents, and the Official Statement shall not have been amended, modified or supplemented except as may have been agreed to in writing by the Underwriter, and the Authority Resolution shall be in full force and effect. (c) At the time of the Closing, no material default shall have occurred or be existing under the Authority Documents or any other agreement or document pursuant to which any of the Authority’s financial obligations were executed and delivered, and the Authority shall not be in default in the payment of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues. (d) In recognition of the desire of the Authority 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, the Underwriter shall have the right to cancel the Underwriter’s obligation to purchase the Bonds and to terminate this Purchase Agreement by written notice to the Authority if, between the date of this Purchase Agreement to and including the Closing Date, in the Underwriter’s sole and reasonable judgment any of the following events shall occur regardless of whether any of the following events were in existence or known of on the date of this Purchase Agreement: (i) any event shall occur which makes untrue any material statement or results in an omission to state a material fact necessary to make the statements in 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 (ii) the marketability of the Bonds or the market price thereof, in the opinion of the Underwriter, has been materially adversely affected by an amendment to the Constitution of the United States or by any legislation in or by the Congress of the United States or by the State, or the amendment of legislation pending as of the date of this Purchase Agreement in the Congress of the United States, or 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, the Treasury Department of the United States, 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, or the favorable reporting for passage of legislation to either House of the Congress of the United States by a Committee of such House to which such legislation has been referred for consideration, or any decision of any federal or state court or any ruling or regulation (final, temporary or proposed) or official statement on behalf of the United States Treasury Department, the Internal Revenue Service or other federal or State authority affecting the federal or State tax status of the Authority, or the interest on or with respect to bonds or notes (including the Bonds); or (iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority 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 (iv) an order, decree or injunction issued by any court of competent jurisdiction, or order, ruling, regulation (final, temporary or proposed), 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 authority having jurisdiction of the subject matter, to the effect that: (i) obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended; or
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of the Authority contained herein. 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, (i) to the accuracy in all material respects of the representations, warranties and agreements on the part of 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 Authority, as well as authorized representatives of Bond Counsel and the Trustee City made in any Bonds certificates or other documents furnished pursuant to the provisions hereof; , and to the performance by the Authority City of its obligations to be performed hereunder at or prior to the Closing Date; and (ii) to the following additional conditions:
(a) The representations, warranties and covenants of the Authority contained herein shall be true and correct at the date hereof and at the time of the Closing, as if made on the Closing Date.
(b) At the time of Closing, the Authority City Documents shall be in full force and effect as valid valid, binding and binding enforceable agreements between or among the various parties thereto, and this Purchase Contract and the Authority Documentsremainder of the City Documents shall not have been amended, modified or supplemented, except as described herein or as may otherwise 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 Purchase Contract, all such actions as, in the opinion of Bond Counsel, shall be necessary and appropriate;
(b) As of the Closing Date, the Official Statement shall not have been amended, modified or supplemented supplemented, except as may have been agreed to in writing by the Underwriter, and the Authority Resolution shall be in full force and effect.;
(c) At Between the time date hereof and the Closing Date, none of the Closing, no material default following shall have occurred occurred:
(1) legislation enacted in the Congress or be existing in the legislature of the State of California, or a decision rendered by a court established under Article III of the Constitution of the United States or under the Authority Documents Constitution of the State of California, as the case may be, or by the Tax Court of the United States, or an order, ruling, regulation (final or temporary) or official or staff statement issued or made:
(A) by or on behalf of the Treasury Department of the United States or the Internal Revenue Service, or any other agreement agency, commission or document pursuant to which any instrumentality of the Authority’s financial obligations were executed and deliveredState of California, and with the Authority shall not be in default purpose or effect, directly or indirectly, of imposing federal income taxation or State of California personal income taxation, respectively, upon the Special Tax Revenues (as defined in the payment of principal Fiscal Agent Agreement) as would be received by the City or the Fiscal Agent or upon such interest with respect to any of its financial obligations, which default as would materially adversely impact be received by the ability holders of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition or obligations of the desire of the Authority and the Underwriter to effect a successful public offering general character of the Bonds, and in view or
(B) by or on behalf of the potential adverse impact of Securities and Exchange Commission, or any other governmental agency having jurisdiction of the following events on such a public offeringsubject matter, to the Underwriter shall have effect that obligations of the right to cancel the Underwriter’s obligation to purchase general character of the Bonds and to terminate this Purchase or the Bonds are not exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), or that the Fiscal Agent Agreement by written notice to is not exempt from qualification under the Authority ifTrust Indenture Act of 1939, between as amended (the date of this Purchase Agreement to and including the Closing Date“Trust Indenture Act”), which, in either case, in the Underwriter’s sole and reasonable judgment any of the following events shall occur regardless of whether any Underwriter, would have a material and adverse effect on the market price or marketability, at the initial offering prices set forth in the Official Statement, of the following events were Bonds;
(2) the declaration of war or the material outbreak or material escalation of existing military hostilities involving 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 existence or known the United States, which, in the reasonable judgment of the Underwriter, would have a material and adverse effect on the date market price or marketability, at the initial offering prices set forth in the Official Statement, of this Purchase Agreement:the Bonds;
(i3) 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, which, in the reasonable judgment of the Underwriter, would have a material and adverse effect on the market price or marketability, at the initial offering prices set forth in the Official Statement, of the Bonds;
(4) 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, underwriters;
(5) an order, decree or injunction of any court of competent jurisdiction, or order, ruling, regulation or official or staff 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 Bonds, or the issuance, offering or sale of the 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;
(6) any event shall occur which occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material respect any statement or results information contained in an omission 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 in the Official Statementor information therein, in the light of the circumstances under which they were made, not misleading, and the City refuses to amend or supplement the Official Statement to correct such statements or information;
(7) the entry of an order by a court of competent jurisdiction that enjoins or restrains the City from issuing permits, licenses or entitlements within the District or which eventorder, in the reasonable opinion of the Underwriter would Underwriter, otherwise materially and adversely affects proposed development of property within the District;
(8) any amendment to the federal or California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affect affecting the ability tax status of the Underwriter to market City or the BondsDistrict, their property, income or securities (or interest thereon), the validity or enforceability of the Special Tax as contemplated by the Fiscal Agent Agreement, the City Documents, or the Official Statement; or
(ii9) any adverse event occurs with respect to the marketability affairs of the Bonds City, the District or the market price thereofFiscal Agent, which, in the opinion reasonable judgment of the Underwriter, has been materially adversely affected by an amendment would have a material and adverse effect on the market price or marketability, at the initial offering prices set forth in the Official Statement, of the Bonds.
(d) At or prior to the Constitution of Closing Date, the United States or by any legislation Underwriter shall have received the following documents, in or each case satisfactory in form and substance to the Underwriter:
(1) The City Documents, duly executed and delivered by the Congress of the United States respective parties thereto, with only such amendments, modifications or supplements as may have been agreed to in writing by the StateUnderwriter;
(2) The Official Statement, or the amendment of legislation pending as of the date of this Purchase Agreement in the Congress of the United States, or 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, the Treasury Department of the United States, 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, or the favorable reporting for passage of legislation to either House of the Congress of the United States by a Committee of such House to which such legislation has been referred for consideration, or any decision of any federal or state court or any ruling or regulation (final, temporary or proposed) or official statement executed on behalf of the United States Treasury Department, the Internal Revenue Service City by its City Manager or other federal or State authority affecting the federal or State tax status another authorized official of the Authority, or the interest on or with respect to bonds or notes (including the Bonds); orCity;
(iii3) any legislationAn approving opinion of Bond Counsel, ordinancedated the Closing Date and addressed to the City, rule or regulation shall be enacted by any governmental bodyin substantially the form attached to the Official Statement as APPENDIX F, department or authority of together with a reliance letter addressed to 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; orUnderwriter;
(iv4) an orderA supplemental opinion of Bond Counsel, decree or injunction issued by any court of competent jurisdiction, or order, ruling, regulation (final, temporary or proposed), official statement or other form of notice or communication issued or made by or on behalf of dated the Securities Closing Date and Exchange Commission, or any other governmental authority having jurisdiction of addressed to the subject matterUnderwriter and the City, to the effect that: that (i) obligations the City Documents have been duly authorized, executed and delivered by the City, and, assuming such agreements constitute a valid and binding obligation of the general character other respective parties thereto, constitute the legally valid and binding agreements of the BondsCity for the District enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, moratorium, insolvency or other laws affecting creditor’s rights or remedies and may be subject to general principles of equity (regardless of whether such enforceability is considered in equity or at law); (ii) the Bonds, including any or all underlying arrangements, Bonds are not exempt from subject to the registration under requirements of the Securities Act of 1933, as amended, or that and the Indenture Fiscal Agent Agreement is not exempt from qualification under the Trust Indenture Act of 1939, as amended; orand (iii) [the information contained in the Official Statement on the cover and under the captions “INTRODUCTION,” “THE BONDS” (other than information relating to DTC and its Book-Entry Only System), “SECURITY AND SOURCES OF PAYMENT FOR THE BONDS,” “TAX MATTERS” and APPENDICES C and F thereof is accurate, insofar as such information purports to summarize or replicate certain provisions of the Act, the Bonds and the Fiscal Agent Agreement and the exclusion from gross income for federal income tax purposes and exemption from State of California personal income taxes of interest on the Bonds;
(5) An opinion of counsel to the City, dated the Closing Date and addressed to the City and the Underwriter, to the effect that (i) to its current actual knowledge and except as disclosed in the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body is pending with respect to which the City has been served with process or is known to such counsel to be threatened, as to which the City is or would be a party, which would materially adversely affect the ability of the City or the District to perform their obligations under the City Documents, or which seeks to restrain or enjoin the issuance, sale and delivery of the Bonds or exclusion from gross income for federal income tax purposes or State of California personal income taxes of interest on the Bonds, or the application of the proceeds thereof in accordance with the Fiscal Agent Agreement, or the collection or application of the Special Tax to pay the principal of and interest on the Bonds, or which in any way contests or affects the validity or enforceability of the Bonds, the City Documents or the accuracy of the Official Statement, or any action of the City contemplated by any of said documents or the development of property within the District;
(ii) the City is duly organized and validly existing as a public entity under the 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, and the City has full legal right, power and authority to issue the Bonds and to perform all of its obligations under the City Documents;
(iii) the City has obtained all approvals, consents, authorizations, elections and orders of or filings or registrations with any California governmental authority, board, agency or commission having jurisdiction that constitute a condition precedent to the levy of the Special Tax, the issuance of the Bonds or the performance by the City of its obligations thereunder or under the Fiscal Agent Agreement, except that no opinion need be expressed regarding compliance with blue sky or other securities laws or regulations; (iv) the City Council has duly and validly adopted the City Documents at meetings of the City Council which were called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout, and the City Documents are now in full force and effect and have not been amended; and (v) the City has duly authorized, executed and delivered the City Documents and has duly authorized the preparation and delivery of the Official Statement;
Appears in 1 contract
Samples: Purchase Contract
Conditions to the Obligations of the Underwriter. The Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of the Authority contained herein. 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 and warranties on the part of the Authority 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 Authority, as well as authorized representatives of Bond Counsel and the Trustee Authority made in any Bonds certificates or other documents furnished pursuant to the provisions hereof; , to the performance by the Authority of its obligations to be performed hereunder at or prior to the Closing Date; Date and to the following additional conditions:
(a) The representations, warranties and covenants of the Authority contained herein shall be true and correct at the date hereof and at the time of the Closing, as if made on At the Closing Date.
(b) At the time of Closing, the Authority Formation Documents and the District Documents shall be in full force and effect as valid and binding agreements between or among the various parties theretoeffect, and the Authority Documents, and the Official Statement shall not have been amended, modified or supplemented supplemented, except as may have been agreed to in writing by the Underwriter, and the Authority Resolution shall be in full force and effect.
(c) At the time of the Closing, no material default there shall have occurred or be existing under been taken in connection therewith, with the Authority Documents or any other agreement or document pursuant to which any issuance of the Authority’s financial obligations were executed and delivered, and the Authority shall not be in default in the payment of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition of the desire of the Authority 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, the Underwriter shall have the right to cancel the Underwriter’s obligation to purchase the Bonds and to terminate with the transactions contemplated thereby and by this Purchase Agreement by written notice Agreement, all such actions as, in the opinion of Xxxxx Xxxx, A Professional Law Corporation, Bond Counsel and Disclosure Counsel for the Authority, and Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, a Professional Corporation, counsel to the Authority ifUnderwriter, between shall be necessary and appropriate;
(b) The information contained in the Official Statement will, as of the Closing Date and as of the date of this Purchase Agreement any supplement or amendment thereto pursuant to Section 2(m) hereof, be true, correct and including complete in all material respects and will not, as of the Closing Date, in the Underwriter’s sole and reasonable judgment any Date or as of the following events shall occur regardless of whether any of the following events were in existence or known of on the date of this Purchase Agreement:
(iany supplement or amendment thereto pursuant to Section 2(m) hereof, contain any event shall occur which makes untrue any statement of a material statement fact or results in an omission omit to state a material fact required to be stated therein or necessary to make the statements in the Official Statementtherein, in the light of the circumstances under which they were made, not misleading;
(c) Between the date hereof and the Closing Date, which eventthe market price or marketability of the Bonds at the initial offering prices set forth in the Official Statement shall not have been materially adversely affected, in the reasonable opinion judgment of the Underwriter would materially or adversely affect (evidenced by a written notice to the ability Authority terminating the obligation of the Underwriter to market accept delivery of and pay for the Bonds; or), by reason of any of the following:
(ii1) the marketability of the Bonds or the market price thereof, in the opinion of the Underwriter, has been materially adversely affected by an amendment to the Constitution of the United States or by any legislation introduced in or enacted (or resolution passed) by the Congress of the United States or by the Stateof America, or the amendment of legislation pending as of the date of this Purchase Agreement in the Congress of the United States, or 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, the Treasury Department of the United States, 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, or the favorable reporting for passage of legislation to either House of the Congress of the United States by a Committee of such House to which such legislation has been referred for consideration, or any decision of any federal or state court or any ruling or regulation (final, temporary or proposed) or official statement on behalf of the United States Treasury Department, the Internal Revenue Service or other federal or State authority affecting the federal or State tax status of the Authority, or the interest on or with respect to bonds or notes (including the Bonds); or
(iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority 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
(iv) an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), official statement press release or other form of notice or communication issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental authority agency having jurisdiction of the subject matter, to the effect that: (i) that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under or other requirements of the 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, or of the Bonds, including any or all underwriting arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws, rules or regulations as amended and then in effect;
(2) any amendment to the federal or California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the status of the Authority or the District, its property, income, securities (or interest thereon), the validity or enforceability of the Special Tax or the ability of the Authority to construct or acquire the improvements as contemplated by the Formation Documents, the District Documents or the Official Statement;
(3) 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 or the Official Statement, or results in the Preliminary Official Statement or the Official Statement containing any untrue statement of a 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;
(4) the declaration of war or the escalation of, or engagement 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, or the financial community in, the United States which, in the judgment of the Underwriter, makes it impracticable or inadvisable to proceed with the offering or the delivery of the Bonds on the terms and in the manner contemplated in the Preliminary Official Statement or the Official Statement;
(5) 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 or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on the New York Stock Exchange or other national securities exchange, whether by virtue of determination by that exchange or by order of the Securities and Exchange Commission (the “SEC”) or any other governmental authority having jurisdiction that, in the Underwriter’s reasonable judgment, makes it impracticable for the Underwriter to market the Bonds or enforce contracts for the sale of the Bonds;
(6) 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;
(7) a material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred;
(8) there shall have been any material adverse change in the levy or collection of the Special Tax that in the Underwriter’s reasonable judgment will materially adversely affect the market for the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds;
(9) there shall be established any new restriction on transactions in securities materially affecting the free market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a change to the net capital requirements of, underwriters 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;
(10) 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 all the underlying obligations as contemplated hereby 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, the Exchange Act, and the Trust Indenture Act of 1939, as amended.
(d) 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) The Formation Documents and the District Documents, together with a certificate dated as of the Closing Date of the Secretary of the Board to the effect that each Formation Document is a true, correct and complete copy of the one duly adopted by the Board;
(2) The Official Statement;
(3) An unqualified approving opinion for the Bonds, dated the Closing Date and addressed to the Authority, of Xxxxx Xxxx, A Professional Law Corporation, Bond Counsel for the Authority, in the form attached to the Preliminary Official Statement as Appendix E, and an unqualified letter of such counsel, dated the Closing Date and addressed to the Underwriter, to the effect 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 or opinions, dated the Closing Date and addressed to the Underwriter, of Xxxxx Xxxx, A Professional Law Corporation, Bond Counsel for the Authority, to the effect that (i) the District Documents have been duly authorized, executed and delivered by the Authority, and, assuming such agreements constitute a valid and binding obligation of the other parties thereto, constitute the legally valid and binding agreements of the Authority enforceable in accordance with their terms, except as enforcement may be limited by bankruptcy, moratorium, insolvency or other laws affecting creditor’s rights or remedies and may be subject to general principles of equity (regardless of whether such enforceability is considered in equity or at law); (ii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification under the Trust Indenture Act of 1939, as amended; or(iii) the information contained in the Official Statement on the cover and under the captions “INTRODUCTION,” “THE BONDS,” “SECURITY FOR THE BONDS,” “LEGAL MATTERS Tax Matters” and Appendices B and E thereof (except that no opinion or belief need be expressed as to any financial or statistical data contained in the Official Statement), insofar as it purports to summarize or replicate certain provisions of the Law, the Bonds and the Indenture and the exemption from State of California personal income taxes of interest on the Bonds present a fair and accurate summary of such provisions; (iv) the Special Tax has been duly and validly authorized in accordance with the provisions of the Law and, except as the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other laws relating to or affecting generally the enforcement of creditors’ rights, by equitable principles and by the exercise of judicial discretion in appropriate cases, a lien to secure payment of the Special Taxes has been imposed on all nonexempt property in the District, and
(v) the Prior Bonds have been defeased in accordance with the provisions of the indenture pursuant to which they were issued;
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of the Authority contained herein. 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 and warranties on the part of the Community Facilities 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 Authority, as well as authorized representatives of Bond Counsel and the Trustee Community Facilities District made in any Bonds certificates or other documents furnished pursuant to the provisions hereof; , to the performance by the Authority 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) The representations, warranties and covenants of the Authority contained herein shall be true and correct at the date hereof and at the time of the Closing, as if made on At the Closing Date.
(b) At the time of Closing, the Authority Community Facilities District Documents shall be in full force and effect as valid and binding agreements between or among the various parties theretoeffect, and the Authority Documents, and the Official Statement shall not have been amended, modified or supplemented supplemented, except as may have been agreed to in writing by the Underwriter, and the Authority Resolution shall be in full force and effect.
(c) At the time of the Closing, no material default there shall have occurred or be existing under been taken in connection therewith, with the Authority Documents or any other agreement or document pursuant to which any issuance of the Authority’s financial obligations were executed and delivered, and the Authority shall not be in default in the payment of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition of the desire of the Authority 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, the Underwriter shall have the right to cancel the Underwriter’s obligation to purchase the Bonds and to terminate with the transactions contemplated thereby and by this Bond Purchase Agreement by written notice to Agreement, all such actions as, in the Authority ifopinion of Bond Counsel, between shall be necessary and appropriate;
(b) The information contained in the Official Statement will, as of the Closing Date and as of the date of this Purchase Agreement any supplement or amendment thereto pursuant to Section 3(i) hereof, be true, correct and including complete in all material respects and will not, as of the Closing Date, in the Underwriter’s sole and reasonable judgment any Date or as of the following events shall occur regardless of whether any of the following events were in existence or known of on the date of this Purchase Agreement:
(iany supplement or amendment thereto pursuant to Section 3(i) hereof, contain any event shall occur which makes untrue any statement of a material statement fact or results in an omission omit to state a material fact required to be stated therein or necessary to make the statements in the Official Statementtherein, in the light of the circumstances under which they were made, not misleading;
(c) Between the date hereof and the Closing Date, which event, the market price or marketability of the Bonds at the initial offering prices set forth in the reasonable opinion of the Underwriter would materially Official Statement or adversely affect the ability of the Underwriter to market enforce contracts for the sale of the Bonds; or
(ii) the marketability of the Bonds or the market price thereof, shall not have been materially adversely affected, in the opinion judgment of the Underwriter, has been materially adversely affected Underwriter (evidenced by an amendment a written notice to the Constitution Community Facilities District terminating the obligation of the United States or 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 by the State, or the amendment of legislation pending as of the date of this Purchase Agreement in recommended to the Congress of the United States, or 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, the Treasury Department of the United StatesTreasury, the Internal Revenue Service Service, or the Chairman or ranking minority any member of the Committee on Finance of the United States Senate or the Committee on Ways and Means of the United States House of RepresentativesCongress, 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, or the favorable reporting favorably reported for passage of legislation to either House of the Congress of the United States by a Committee any committee of such House to which such legislation has had been referred for considerationconsideration 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 any decision of any federal or state court or any ruling or an order, ruling, regulation (final, temporary or proposed) ), press release or official statement other form of notice issued or made by or on behalf of the United States Treasury Department, Department or the Internal Revenue Service or other federal or State authority affecting the federal or State tax status of the AuthorityUnited 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 enacted (or resolution passed) by the Congress of the United States of America, or the interest on or with respect to bonds or notes (including the Bonds); or
(iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority 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
(iv) an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), official statement press release or other form of notice or communication issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental authority agency having jurisdiction of the subject matter, to the effect that: (i) that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under under, or from the other requirements of, the Securities Act of 1933, as amended, or that the Indenture Resolution is not exempt from qualification under, or from the 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, or of the Bonds, including any or all underwriting arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws, rules or regulations as amended and then in effect;
(3) any amendment to the federal or California Constitution or 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 the Special Tax or the ability of the Community Facilities District to construct or acquire the improvements as contemplated by 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;
(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 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; or
(5) the declaration of war or the escalation of, or engagement 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, or the financial community in, the United States; or
(6) 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 or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on the New York Stock Exchange or other national securities exchange, whether by virtue of determination by that exchange or by order of the Securities and Exchange Commission (the “SEC”) or any other governmental authority having jurisdiction; or
(7) 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; or
(8) the entry of an order by a court of competent jurisdiction which order, in the reasonable opinion of the Underwriter, materially and adversely affects proposed development of property within the Community Facilities District; or
(9) a material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred; or
(10) there shall have been any material adverse change in the affairs of the Community Facilities District or County that in the Underwriter’s reasonable judgment will materially adversely affect the market for the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds; or
(11) there shall be established any new restriction on transactions in securities materially affecting the free market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a change to the net capital requirements of, underwriters 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
(12) 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 all the underlying obligations as contemplated hereby 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, the Exchange Act, and the Trust Indenture Act of 1939, as amended; or
(13) the commencement of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body described in Section 3(k).
(d) 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) The Community Facilities District Documents, together with a certificate dated as of the Closing Date of the Clerk of the Board to the effect that each such document is a true, correct and complete copy of the one duly approved by the Board;
(2) The Official Statement, duly executed by the Community Facilities District;
(3) The opinion of Bond Counsel, dated the Closing Date and addressed to the Community Facilities District, in substantially the form attached to the Preliminary Official Statement as Appendix C, and a reliance letter from such firm, dated the Closing Date and addressed to the Underwriter, to the effect that such approving opinion addressed to the Community Facilities District may be relied upon by the Underwriter to the same extent as if such opinion were addressed to them;
(4) The supplemental opinion of Bond Counsel, dated the Closing Date and addressed to the Underwriter, to the effect that (i) this Bond Purchase Agreement, and the Community Facilities District Continuing Disclosure Certificate have been duly authorized, executed and delivered by the Community Facilities District, and, in the case of the Bond Purchase Agreement, assuming such agreement constitutes a valid and binding obligation of the respective other parties thereto, constitute the legally valid and binding obligations of the Community Facilities District enforceable in accordance with their terms, except as enforcement may be limited by bankruptcy, moratorium, insolvency or other laws affecting creditor’s rights or remedies and is subject to general principles of equity and to the exercise of judicial discretion in appropriate cases; (ii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and 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 under the captions “THE BONDS,” “SOURCES OF PAYMENT FOR THE BONDS,” “TAX MATTERS,” and in Appendices C, E, F and G, insofar as such statements expressly summarize certain provisions of the Bonds, the Indenture, the other agreements 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;
(5) The letter of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, a Professional Corporation, dated the Closing Date and addressed to the Community Facilities District and to the Underwriter, to the effect that, without having undertaken to determine independently the accuracy or completeness of the statements contained in the Official Statement, but on the basis of their participation in conferences with representatives of the Community Facilities District, the Special Tax Consultant and others, and their examination of certain documents, nothing has come to their attention which has led them to believe that the Official Statement, as of its date contained, or 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 light of the circumstances under which they were made, not misleading (except that no opinion or belief need be expressed as to any financial statements or other financial, statistical or engineering data or forecasts, numbers, charts, estimates, projections, assumptions, or expressions of opinion, any information about valuation, appraisals, absorption, archeological or environmental matters, or any information about The Depository Trust Company, the book-entry-only system or CUSIP numbers);
(6) A certificate, dated the Closing Date and signed by an authorized representative of the Community Facilities District, ratifying the use and distribution by the Underwriter of the Preliminary 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 Community Facilities District contained in Section 3 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; (ii) to the best of his or her knowledge, no event has occurred since the date of the Official Statement affecting the matters contained therein which should be disclosed in the Official Statement for the purposes for which it is to be used in order to make the statements and information contained in the Official Statement not misleading in any material respect, and the Bonds and the Community Facilities District Documents conform as to form and tenor to the descriptions thereof contained in the Official Statement; and (iii) the Community Facilities District has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under the Formation Documents, the Community Facilities 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 office of County Counsel, to the effect that (i) the County was duly organized and is validly existing as a division of the State under the Constitution and laws of the State of California,
(ii) the Board adopted the resolutions and ordinances forming the Community Facilities District, confirming the Special Tax, approving the Community Facilities District Documents and authorizing the sale and issuance of the Bonds at meetings of the Board which were held pursuant to law, (iii) to its current actual knowledge, there are no actions, suits, proceedings, inquiries, or investigations, at law or in equity, before or by any California court, governmental agency, public board, or body, pending (notice of which has been served on the County) or, threatened in writing against the County or the Community Facilities District, for which the County or the Community Facilities District has been served, to restrain or enjoin the issuance of the Bonds, the collection or application of the Special Tax, or the payment of principal of and interest on the Bonds, or in any way contesting the validity of the Bonds or the Community Facilities District Documents or this Bond Purchase Agreement;
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of the Authority contained herein. 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 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 AuthorityDistrict, as well as authorized representatives of Bond Counsel the Corporation and the Trustee made in any Bonds certificates or other documents furnished pursuant to the provisions hereof; hereof or the Certificate Documents, and to the performance by the Authority District, the Corporation, the Insurer and the Trustee of its their respective obligations to be performed hereunder and under the Certificate Documents at or prior to the Closing Date; , and to the following additional conditions:
(a) The representations, warranties and covenants of the Authority contained herein shall be true and correct at the date hereof and at the time of the Closing, as if made on At the Closing Date.
(b) At the time of Closing, the Authority Certificates, the Certificate Documents shall be in full force and effect as valid and binding agreements between or among the various parties thereto, and the Authority Documents, and the Official Statement shall have been duly authorized, executed and delivered by the respective parties thereto, in substantially the forms heretofore submitted to the Underwriter with only such changes as shall have been agreed to by the Underwriter, and said documents shall not have been amended, modified or supplemented supplemented, except as may have been agreed to in writing by the Underwriter, and there shall have been taken in connection therewith, with the Authority Resolution execution and delivery of the Certificates and with the transactions contemplated thereby and by this Purchase Agreement, all such actions as Special Counsel, shall deem to be in full force necessary and effect.appropriate;
(cb) At the time The representations and warranties of the Closing, no material default shall have occurred or be existing under the Authority Documents or any other agreement or document pursuant to which any of the Authority’s financial obligations were executed and delivered, and the Authority shall not be District contained in default in the payment of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition of the desire of the Authority 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, the Underwriter shall have the right to cancel the Underwriter’s obligation to purchase the Bonds and to terminate this Purchase Agreement by written notice to the Authority ifshall be true, between correct and complete in all material respects on the date of this Purchase Agreement to hereof and including on the Closing Date, in 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’s sole ) shall be true, correct and reasonable judgment complete in all material respects and such information shall not contain any untrue statement of the following events shall occur regardless of whether any of the following events were in existence fact or known of on the date of this Purchase Agreement:
(i) any event shall occur which makes untrue any material statement or results in an omission omit to state a material any fact required to be stated therein or necessary to make the statements in therein relating to the Official StatementDistrict, in the light of the circumstances under which they such statements were made, not misleading;
(c) Between the date hereof and the Closing Date, which eventneither the market price nor marketability, in the reasonable opinion of the Underwriter would materially or adversely affect the ability of the Underwriter to market enforce contracts for the Bonds; or
(ii) the marketability sale of the Bonds or Certificates, at the market price thereofinitial offering prices set forth in Exhibit A hereto and in the Official Statement, of the Certificates shall have been materially adversely affected, in the opinion judgment of the Underwriter, has been materially adversely affected by an amendment to reason of any of the following:
(1) legislation 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 the Constitution of the United States or by any legislation in or by the Congress of the United States or by the State, or the amendment of legislation pending as of the date of this Purchase Agreement in the Congress Tax Court of the United States, or the recommendation to Congress or endorsement for passage (by press releasean order, other form of notice or otherwise) of legislation by the President of the United Statesruling, the Treasury Department of the United States, 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, or the favorable reporting for passage of legislation to either House of the Congress of the United States by a Committee of such House to which such legislation has been referred for consideration, or any decision of any federal or state court or any ruling or regulation (final, temporary or proposed) or official statement issued or made:
(i) by or on behalf of the Treasury Department of the United States Treasury Department, or the Internal Revenue Service with the purpose or other effect, directly or indirectly (except as described in the Official Statement), of imposing federal or State authority affecting income taxation upon such interest as would be received by the federal or State tax status owners of the AuthorityCertificates, or the interest on or with respect to bonds or notes (including the Bonds); or
(iiiii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority 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
(iv) an order, decree or injunction issued by any court of competent jurisdiction, or order, ruling, regulation (final, temporary or proposed), 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 authority entity having jurisdiction of the subject matter, to the effect that: (i) that obligations of the general character of the BondsCertificates, or the BondsCertificates, including any or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Indenture Trust Agreement is not exempt from qualification under the Trust Indenture Act of 1939, as amended;
(2) the declaration of war or engagement in or escalation of 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 the financial community in the United States;
(3) 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;
(4) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental entity, of any material restrictions not now in force with respect to the Certificates or obligations of the general character of the 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 District;
(7) 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) there shall have occurred or any notices shall have been given of any intended downgrading, suspension, withdrawal, or negative change in credit watch by any national rating service to any of the District's obligations (without regard to any credit enhancement thereto);
(9) there shall have occurred or any notices shall have been given of any withdrawal, downgrading or placement on negative credit watch of any rating of the Insurer;
(10) the suspension by the Securities and Exchange Commission of trading in the outstanding securities of the District; or
(11) legislation enacted by or introduced in the legislature of the State, or favorably reported out of committee or a decision rendered by a court of the State, or a ruling, order, or regulation (final or temporary) made by State authority, which would have the effect of changing, directly or indirectly, the State tax consequences of interest on obligations of the general character of the Certificates in the hands of the holders thereof.
(1) the Official Statement and each Certificate Document, duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to by the Underwriter;
(2) an unqualified approving opinion, dated the Closing Date and addressed to the District, of Special Counsel, in substantially the form attached to the Official Statement as Appendix D, and a letter of such counsel, dated the Closing Date and addressed to the Underwriter, to the effect 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) this
(4) an opinion, dated the Closing Date and addressed to the Underwriter, of Xxxxx Xxxx, A Professional Law Corporation, as disclosure counsel (“Disclosure Counsel”), substantially to the effect that, based upon its participation in the preparation of the Preliminary Official Statement and the Official Statement and without having undertaken to determine independently the fairness, accuracy or completeness of the statements contained in the Official Statement, Disclosure Counsel has no reason to believe that, as of its date and as of the date of the Closing, the Preliminary Official Statement and the Official Statement (excluding therefrom the reports, financial and statistical data and forecasts therein, the information included in Appendices B, C, F, G and H thereto, information relating to DTC and its book-entry system and information relating to the Insurer and its insurance policy and debt service reserve policy 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;
(5) a certificate of the Trustee dated the Closing Date, signed by a duly authorized officer of the Trustee, to the effect that (i) the Trustee is a national banking association organized and existing under and by virtue of the laws of the United States of America, having the full power and being qualified to enter into and perform its duties under the Trust Agreement and the Assignment Agreement and to execute and deliver the Certificates to the Underwriter pursuant to the Trust Agreement, (ii) when delivered to and paid for by the Underwriter on the Closing Date, the Certificates will have been duly executed and delivered by the Trustee, (iii) the execution and delivery of the Trust Agreement and the Assignment Agreement and compliance with the provisions on the Trustee’s part contained therein, will not conflict with or constitute a breach of or default under any law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the Trustee is a party or is otherwise subject (except that no representation, warranty or agreement is made with respect to any federal or state securities 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
(iv) there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental or public entity pending or, to the best knowledge of the Trustee, threatened against the Trustee, affecting the existence of the Trustee, or the titles of its officers to their respective offices or seeking to prohibit, restrain or enjoin the execution and delivery of the Certificates, or in any way contesting or affecting the validity or enforceability of the Trust Agreement and the Assignment Agreement or contesting the powers of the Trustee or its Corporation to enter into, adopt or perform its obligations under any of the foregoing to which it is a party, wherein an unfavorable decision, ruling or finding would materially adversely affect the validity or enforceability of the Trust Agreement or the Assignment Agreement or the ability of the Trustee to perform its obligations thereunder;
Appears in 1 contract
Samples: Certificate Purchase Agreement
Conditions to the Obligations of the Underwriter. The Underwriter has entered hereby enters into this Purchase Agreement in reliance upon the representations and warranties of the Authority Agency and the City contained herein. The obligation , the representations and warranties of the Underwriter Agency and the City to be contained in the documents and instruments to be delivered on or prior to the Closing Date and the performance by the Agency 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 Agreement to purchase, to accept delivery of and to 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 and warranties of the Agency 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 Authority, as well as authorized representatives of Bond Counsel Agency and the Trustee City made in any Bonds certificate or other documents document furnished pursuant to the provisions hereof; , to the performance by the Authority Agency and the City of its their respective obligations to be performed hereunder and under the Legal Documents and the City’s Legal Documents, as the case may be, at or prior to the Closing Date; , and also shall be subject to the following additional conditions:
(a) The representationsUnderwriter shall receive, warranties and covenants within seven (7) business days of the Authority contained herein shall be true and correct at the date hereof and at the time of the Closing, as if made on in any event not later than two (2) business days prior to the Closing Date., 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 2 hereof;
(b) At As of the time of ClosingClosing Date, the Authority Legal Documents and the City’s Legal Documents shall have been duly authorized, executed and delivered by the respective parties thereto, and the Official Statement shall have been duly authorized, executed and delivered by the Agency, all in substantially the forms heretofore submitted to the Underwriter, with only such changes as shall have been agreed to in writing by the Underwriter. The Legal Documents and City’s Legal Documents shall be in full force and effect as valid and binding agreements between shall not have been amended, modified or among the various parties thereto, and the Authority Documentssupplemented, and the Official Statement shall not have been supplemented or amended, modified or supplemented except in any such case as may have been agreed to in writing by the Underwriter, ; and the Authority Resolution there shall be in full force and effect.effect such resolution or resolutions of the Board of Directors of the Agency 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;
(c) At On the time Closing Date all necessary action of the Closing, no material default shall have occurred or be existing under Agency and the Authority Documents or any other agreement or document pursuant City relating to which any the issuance and sale of the Authority’s financial obligations were executed Bonds will have been taken and deliveredwill be in full force and effect and will not have been amended, modified or supplemented;
(d) Between the date hereof and the Authority shall not be in default Closing Date, the market price or marketability, at the initial public offering prices set forth in the payment Official Statement, of principal the Bonds, or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority Underwriter to pay debt service on enforce contracts for the Bonds from Revenues.
(d) In recognition sale of Bonds, shall not have been materially adversely affected, in the judgment of the desire of the Authority 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, the Underwriter shall have the right to cancel the Underwriter’s obligation to purchase the Bonds and to terminate this Purchase Agreement (evidenced by written notice to the Authority ifAgency and the City terminating the obligation of the Underwriter to accept delivery of and make any payment for the Bonds), between by reason of any of the date of this Purchase Agreement to and including the Closing Datefollowing:
(1) Any event or circumstance occurs or information becomes known, which, in the Underwriter’s sole and reasonable professional judgment any of the following events shall occur regardless of whether any of the following events were in existence or known of on the date of this Purchase Agreement:
(i) any event shall occur which Underwriter, makes untrue any statement of a material statement fact set forth in the Preliminary Official Statement or the Official Statement or results in an omission to state a material fact necessary to make the statements in the Official Statementmade therein, 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;
(ii2) the marketability of the Bonds or the market price thereof, in the opinion of the Underwriter, has been materially adversely affected by an amendment to the Constitution of the United States or by any the State of California shall have been passed, legislation shall have been introduced in or enacted by the Congress of the United States or by the Statelegislature of any state having jurisdiction in the subject matter, or the amendment of legislation pending as of the date of this Purchase Agreement in the Congress of the United StatesStates shall have been amended, legislation shall have been recommended to the Congress of the United States or to any state having jurisdiction in the recommendation to Congress subject matter or endorsement otherwise endorsed for passage (by press release, other form of notice or otherwise) of legislation by the President of the United States, the Treasury Department of the United States, 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 legislation shall have been proposed for consideration of legislation by either such Committee or by any member thereof, thereof or the presentment of legislation for consideration presented as an option for consideration by either such Committee, 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 the favorable reporting legislation shall have been favorably reported for passage of legislation to either House of the Congress of the United States by a Committee of such House to which such legislation has been referred for consideration, a decision shall have been rendered by a court of the United States or of the State of California or the Tax Court of the United States, or a ruling shall have been made or a regulation or temporary regulation shall have been proposed or made or any decision other release or announcement shall have been made by the Treasury Department of any the United States, the Internal Revenue Service or other federal or state court State of California authority, with respect to State of California taxation upon revenues or other income of the general character to be derived by the Agency or the City or upon interest received on obligations of the general character of the Bonds which may have the purpose or effect, directly or indirectly, of affecting the tax status of the Agency or the City, their property or income, their securities (including the Bonds), the interest thereon, or any ruling tax exemption granted or authorized by State of California legislation or materially and adversely affecting the market for the Bonds or the market price generally of obligations of the general character of the Bonds;
(3) legislation shall have been enacted, introduced in the Congress or recommended for passage by the President of the United States, a decision shall have been rendered by a court established under Article III of 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 on behalf of the United States Treasury Department, the Internal Revenue Service or other federal or State authority affecting the federal or State tax status of the Authority, or the interest on or with respect to bonds or notes (including the Bonds); or
(iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority 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
(iv) an order, decree or injunction issued by any court of competent jurisdiction, or order, ruling, regulation (final, temporary or proposed), official statement or other form of notice or communication have been issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental authority agency having jurisdiction of in the subject matter, matter to the effect that: (i) that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended;
(4) 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 in the subject matter shall have been issued or made to the effect that the issuance, offering or sale of obligations of the general character of the Bonds, or the issuance, offering or sale of the 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;
(5) the escalation in military hostilities or declaration by the United States of a national emergency, war or other calamity or crisis the 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 Bonds as contemplated hereby or by the Official Statement;
(6) the declaration of a general banking moratorium by federal, State of New York or State of California authorities, the general suspension of trading on any national securities exchange or a material disruption in commercial banking or securities settlement or clearances services;
(7) 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;
(8) the withdrawal, downgrading or placement on “credit watch” or “negative outlook” of any rating of the Bonds or any lease obligations payable from the City’s General Fund by a national rating agency;
(9) any litigation shall be instituted or be pending on the Closing Date to restrain or enjoin the issuance, sale or delivery of the Bonds, or in any way contesting or affecting any authority for or the validity of the proceedings authorizing and approving the City Resolution, the Agency Resolution, the Bonds, the City Documents, the Agency Documents or the existence or powers of the City, the Agency or the Trustee with respect to their obligations under the City Documents, the Agency Documents or the Bonds; or
(10) An material adverse event has occurred affecting the financial condition or operation of the Agency or the City which, in the opinion of the Underwriter, requires or has required a supplement or amendment to the Official Statement
(e) On 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 Preliminary Official Statement, the Official Statement and each supplement or amendment, if any, thereto, executed by the Agency and approved by the City;
(2) copies of this Purchase Agreement, the Legal Documents and the City’s Legal Documents, each duly executed and delivered by the respective parties thereto;
(3) the approving opinion of Bond Counsel, dated the Closing Date and addressed to the Agency, in substantially the form attached to the Official Statement as Appendix E thereto, and a letter of such counsel, dated the Closing Date, and addressed to the Underwriter to the effect that such opinion may be relied upon by the Underwriter to the same extent as if such opinion were addressed to the Underwriter;
(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 the City Attorney of the City, as counsel for the Agency, dated the Closing Date and addressed to the Underwriter, in substantially the form attached hereto as Exhibit B;
(6) 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 C;
(7) the opinion of counsel to the Trustee, dated the Closing Date and addressed to the Agency, the City and the Underwriter, to the effect that: (i) the Trustee has duly authorized, executed and delivered the Indenture and has duly authenticated and delivered the Bonds on the Closing Date; and (ii) the Indenture constitutes the legally valid and binding obligations of the Trustee, enforceable against the Trustee in accordance with its 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 the application of general principles of equity;
(8) the opinion of Underwriter’s Counsel, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter;
(9) a certificate or certificates, dated the Closing Date, signed by a duly authorized official of the Agency satisfactory to the Underwriter, in form and substance satisfactory to the Underwriter, to the effect that: (i) the representations and warranties of the Agency contained in this Purchase Agreement 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; (ii) there is no action, suit, proceeding, inquiry or investigation pending or, to the best knowledge of such official, threatened: (A) to restrain or enjoin the execution, sale or delivery of any of the Bonds; (B) in any way affecting the validity of the Bonds or the Legal Documents; or (C) in any way contesting the existence or powers of the Agency; and (iii) no event affecting the Agency has occurred since the date of the Official Statement which either makes untrue or incorrect in any material respect as of the Closing Date any statement or information contained in the Official Statement relating to the Agency 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 Agency not misleading in any material respect;
(10) a certificate or certificates, dated the Closing Date, signed by a duly authorized official of the City satisfactory to the Underwriter, in form and substance satisfactory to the Underwriter, to the effect that: (i) the representations and warranties of the City contained in the City’s 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; (ii) there is no action, suit, proceeding, inquiry or investigation pending or, to the best knowledge of such official, threatened: (A) to restrain or enjoin the payment of the Lease Payments or the execution and delivery of the City’s Legal Documents; (B) in any way contesting or affecting the validity of the City’s Legal Documents; or
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of the Authority contained herein. 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 on the part of the Authority contained herein, to the accuracy in all material respects of the statements of the officers and other officials of the Authority, as well as authorized representatives of Bond Counsel and the Trustee Authority made in any Bonds certificates or other documents furnished pursuant to the provisions hereof; , to the performance by the Authority of its obligations to be performed hereunder at or prior to the Closing Date; and Date and, to the following additional conditions:
(a) The representations, warranties and covenants of the Authority contained herein shall be true and correct at the date hereof and at the time of the Closing, as if made on A. At the Closing Date.
(b) At the time of Closing, the Authority Documents Documents, the Authority Resolution, the Districts Resolutions, the Local Obligations Security Documents, the Local Obligations Purchase Agreement, and the Local Obligations shall be in full force and effect as valid and binding agreements between or among the various parties theretoeffect, and the Authority Documents, and the Official Statement shall not have been amended, modified or supplemented 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 Resolution shall be not be, in full force and effect.
(c) At any respect material to the time transactions referred to herein or contemplated hereby, in breach of or in default under, any law or administrative rule or regulation of the ClosingState of California, no material 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 shall have occurred under any applicable law or be existing 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 (other than statements pertaining to DTC or the book-entry system, the Reserve Policy, or any other agreement or document pursuant information provided by the Underwriter, as to which any no view is expressed), will be, as of the Authority’s financial obligations were executed Closing Date and delivered, and the Authority shall not be in default in the payment as of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition of the desire of the Authority 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, the Underwriter shall have the right to cancel the Underwriter’s obligation to purchase the Bonds and to terminate this Purchase Agreement by written notice to the Authority if, between the date of this Purchase Agreement to any supplement or amendment thereto pursuant hereto, true and including correct in all material respects and will not, as of the Closing Date, in the Underwriter’s sole and reasonable judgment any Date or as of the following events shall occur regardless of whether any of the following events were in existence or known of on the date of this Purchase Agreement:
(i) any event shall occur which makes supplement or amendment thereto, contain any untrue any statement of a material statement fact or results in an omission omit to state a material fact required to be stated therein or necessary to make the statements in the Official Statementtherein, in the light of the circumstances under which they were made, not misleading.
D. Between the date hereof and the Closing Date, which eventthe market price or marketability, in at the reasonable opinion initial offering prices set forth on the inside cover page of the Underwriter would materially Official Statement, or adversely affect the ability of the Underwriter to market enforce contracts for the sale of the Bonds; or
(ii) the marketability of the Bonds or the market price thereof, shall not have been materially adversely affected, in the opinion reasonable judgment of the Underwriter, has been materially adversely affected Underwriter (evidenced by an amendment a written notice to the Constitution Authority terminating the obligation of the United States or Underwriter to accept delivery of and pay for the Bonds), by reason of any legislation of the following:
1. Legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or by the State, or the amendment of legislation pending as of the date of this Purchase Agreement in recommended to the Congress of the United States, or 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, the Treasury Department of the United StatesTreasury, the Internal Revenue Service Service, or the Chairman or ranking minority any member of the Committee on Finance of the United States Senate or the Committee on Ways and Means of the United States House of RepresentativesCongress, 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, or the favorable reporting favorably reported for passage of legislation to either House of the Congress of the United States by a Committee any committee of such House to which such legislation has had been referred for consideration, or any a decision rendered by a court established under Article III of any federal the Constitution of the United States of America or state court by the Tax Court of the United States of America, or any ruling or an order, ruling, regulation (final, temporary or proposed) ), press release or official statement other form of notice issued or made by or on behalf of the Treasury Department of the United States Treasury Department, of America or the Internal Revenue Service Service, with the purpose or other effect, directly or indirectly, of imposing federal or State authority affecting the federal or State tax status income taxation upon such interest as would be received by any owners of the Authority, or Bonds beyond the extent to which such interest on or with respect is subject to bonds or notes (including the Bonds); or
(iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority taxation as of the State, date hereof;
2. Legislation introduced in or a decision enacted (or resolution passed) by any court of competent jurisdiction within the State shall be rendered which materially adversely affects the market price of the Bonds; or
(iv) Congress or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), official statement press release or other form of notice or communication issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental authority agency having jurisdiction of the subject matter, to the effect that: (i) that obligations of the general character of the Bonds, Bonds or the BondsLocal Obligations, including any or all underlying arrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as 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, or that the issuance, offering or sale of obligations of the general character of the Bonds or the Local Obligations, 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. Any state Blue Sky or securities commission or other governmental agency or body shall have withheld registration, exemption or clearance of the offering of the Bonds as described herein, or issued a stop order or similar ruling relating thereto;
4. 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;
5. 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 Authority, the Community Facilities Districts or their property, income, securities (or interest thereon), the validity or enforceability of Special Taxes, or the ability of the Authority to purchase the Local Obligations;
6. 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 or in the Official Statement, or has the effect that the Preliminary Official Statement or 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 therein, in the light of the circumstances under which they were made, not misleading;
7. There shall have occurred any materially adverse change in the affairs or financial condition of the Authority or the 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 Local 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 Underwriter;
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 SEC, any other federal or State agency or the Congress of the United States of America, or by Executive Order;
12. A decision by a 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 the Trust Indenture Act of 1939, as amended;
13. 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 Official Statement, executed on behalf of the Authority by its Executive Director or other authorized officer;
2. The Authority Documents, duly executed and delivered by all parties thereto;
3. The Authority Resolution, together with a certificate of the Secretary of the Authority, dated as of the Closing Date, to the effect that such resolution is a true, correct and complete copy of the resolution duly adopted by the Board of Directors of the Authority;
4. The Districts Resolutions, together with a certificate dated as of the Closing Date of the City Clerk to the effect that the Districts Resolutions are true, correct and complete copies of the resolutions duly adopted by the City Council, acting as the legislative body of the Community Facilities Districts;
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of the Authority contained herein. 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 on the part of the Authority contained herein, of the District contained in the Local Obligations Purchase Agreement and of Developer in the Letter of Representations, to the accuracy in all material respects of the statements of the officers and other officials of the Authority, as well as authorized representatives of Bond Counsel and the Trustee Authority made in any Bonds certificates or other documents furnished pursuant to the provisions hereof; , to the performance by the Authority of its obligations to be performed hereunder at or prior to the Closing Date; and Date and, to the following additional conditions:
(a) The representations, warranties and covenants of the Authority contained herein shall be true and correct at the date hereof and at the time of the Closing, as if made on A. At the Closing Date.
(b) At the time of Closing, the Authority Documents Resolution, the District Resolution, the Indenture, this Purchase Agreement, the Fiscal Agent Agreement, the Local Obligations Purchase Agreement, the Local Obligations and the Continuing Disclosure Agreement shall be in full force and effect as valid and binding agreements between or among the various parties theretoeffect, and the Authority Documents, and the Official Statement shall not have been amended, modified or supplemented 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, the Authority Resolution shall be in full force and effect.
(c) At any other instruments contemplated by any of such documents, and compliance with the time 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 ClosingState of California, no material default shall have occurred the United States of America, or be existing 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 any other agreement or document pursuant to which any the Authority Resolution.
C. The information contained in the Official Statement will be, as of the Authority’s financial obligations were executed Closing Date and delivered, and the Authority shall not be in default in the payment as of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition of the desire of the Authority 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, the Underwriter shall have the right to cancel the Underwriter’s obligation to purchase the Bonds and to terminate this Purchase Agreement by written notice to the Authority if, between the date of this Purchase Agreement to any supplement or amendment thereto pursuant hereto, true and including correct in all material respects and will not, as of the Closing Date, in the Underwriter’s sole and reasonable judgment any Date or as of the following events shall occur regardless of whether any of the following events were in existence or known of on the date of this Purchase Agreement:
(i) any event shall occur which makes supplement or amendment thereto, contain any untrue any statement of a material statement fact or results in an omission omit to state a material fact required to be stated therein or necessary to make the statements in the Official Statementtherein, in the light of the circumstances under which they were made, not misleading.
D. Between the date hereof and the Closing Date, which eventthe market price or marketability, in at the reasonable opinion initial offering prices set forth on the cover page of the Underwriter would materially Official Statement, or adversely affect the ability of the Underwriter to market enforce contracts for the sale of the Bonds; or
(ii) the marketability of the Bonds or the market price thereof, shall not have been materially adversely affected, in the opinion judgment of the Underwriter, has been materially adversely affected Underwriter (evidenced by an amendment a written notice to the Constitution Authority terminating the obligation of the United States or Underwriter to accept delivery of and pay for the Bonds), by reason of any legislation of the following:
1. Legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or by the State, or the amendment of legislation pending as of the date of this Purchase Agreement in recommended to the Congress of the United States, or 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, the Treasury Department of the United StatesTreasury, the Internal Revenue Service Service, or the Chairman or ranking minority any member of the Committee on Finance of the United States Senate or the Committee on Ways and Means of the United States House of RepresentativesCongress, 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, or the favorable reporting favorably reported for passage of legislation to either House of the Congress of the United States by a Committee any committee of such House to which such legislation has had been referred for consideration, or any a decision rendered by a court established under Article III of any federal the Constitution of the United States of America or state court by the Tax Court of the United States of America, or any ruling or an order, ruling, regulation (final, temporary or proposed) ), press release or official statement other form of notice issued or made by or on behalf of the Treasury Department of the United States Treasury Department, of America or the Internal Revenue Service Service, with the purpose or other effect, directly or indirectly, of imposing federal or State authority affecting the federal or State tax status income taxation upon such interest as would be received by any owners of the Authority, or Bonds beyond the extent to which such interest on or with respect is subject to bonds or notes (including the Bonds); or
(iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority taxation as of the State, date hereof;
2. Legislation introduced in or a decision enacted (or resolution passed) by any court of competent jurisdiction within the State shall be rendered which materially adversely affects the market price of the Bonds; or
(iv) Congress or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), official statement press release or other form of notice or communication issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental authority agency having jurisdiction of the subject matter, to the effect that: (i) that obligations of the general character of the Bonds, Bonds or the BondsLocal Obligations, including any or all underlying arrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as 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; or, or that the issuance, offering or sale of obligations of the general character of the Bonds or the Local Obligations, 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. Any state Blue Sky or securities commission or other governmental agency or body shall have withheld registration, exemption or clearance of the offering of the Bonds as described herein, or issued a stop order or similar ruling relating thereto;
4. A general suspension of trading in securities on the New York Stock Exchange, or a general banking moratorium declared by Federal, State of New York or State of California officials authorized to do so;
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The Underwriter has entered hereby enters into this Note Purchase Agreement in reliance upon the representations and warranties of the Authority District contained herein. The obligation 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 Underwriter 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 statements of the officers representations and other officials of the Authority, as well as authorized representatives of Bond Counsel and the Trustee made in any Bonds or other documents furnished pursuant to the provisions hereof; to the performance by the Authority of its obligations to be performed hereunder at or prior to the Closing Date; and to the following additional conditions:warranties of
(a) The representations, warranties and covenants of the Authority contained herein shall be true and correct at the date hereof and at the time of the Closing, as if made on the Closing Date.
(b) At the time of Closing, the Authority Legal Documents shall have been duly authorized, executed and delivered by the District, all in substantially the forms heretofore submitted to the Underwriter, with only such changes as shall have been reasonably agreed to in writing by the Underwriter 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 be in full force and effect such resolutions and ordinances of the City Council, as valid and binding agreements between the legislative body of the District as, in the opinion of Bond Counsel, shall be necessary or among appropriate in connection with the various parties theretotransactions contemplated hereby;
(b) on the Closing Date, all necessary actions of City Council, as the legislative body of the District and the Authority Documents, District relating to the issuance and sale of the Official Statement shall 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, and the Authority Resolution shall be in full force and effect.supplemented;
(c) At on or prior to the time of the Closing, no material default shall have occurred or be existing under the Authority Documents or any other agreement or document pursuant to which any of the Authority’s financial obligations were executed and delivered, and the Authority shall not be in default in the payment of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition of the desire of the Authority 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 offeringClosing Date, the Underwriter shall have received the right following documents, in each case reasonably satisfactory in form and substance to cancel the Underwriter’s obligation to purchase the Bonds and to terminate this Purchase Agreement by written notice to the Authority if, between the date of this Purchase Agreement to and including the Closing Date, in the Underwriter’s sole and reasonable judgment any of the following events shall occur regardless of whether any of the following events were in existence or known of on the date of this Purchase Agreement:
(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 Closing Date, and addressed to the Underwriter to the effect that 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 Underwriter, in substantially the form attached hereto as Appendix A;
(iv) a letter of Xxxxx Xxxxxxx LLP (“Disclosure Counsel”), dated the date of the Closing, addressed to the District, with a reliance letter addressed to the Underwriter, substantially in the form attached hereto as Appendix B;
(v) an opinion of Xxxxx Xxxx LLP, counsel to the Underwriter, 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 fairness of the statements contained in the Preliminary Official Statement, nothing has come to their attention which would lead them to believe that the Preliminary Official Statement, as of its date and as of the date of this Note Purchase Agreement, contained any event shall occur which makes untrue any statement of a material statement fact or results in an omission omitted to state a material fact necessary in order to make the statements in the Official Statementtherein, in the light of the circumstances under which they were made, not misleading. Underwriter’s Counsel will express no belief or opinion as to any permitted omissions allowed pursuant to Rule 15c2-12 of the Securities and Exchange Commission relating to the details of the offering of the Notes such as offering prices, principal amounts, maturities, interest rates and 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 date of the Preliminary Official Statement, or Appendices [ ] and [ ] to the Preliminary 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 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 eventmay be specified, and without having undertaken to determine independently the accuracy, completeness or fairness of the statements contained in the reasonable opinion Official Statement, nothing has come to their attention which would lead them to believe that the Official Statement, as of the Underwriter would materially or adversely affect the ability of the Underwriter to market the Bonds; or
(ii) the marketability of the Bonds or the market price thereof, in the opinion of the Underwriter, has been materially adversely affected by an amendment to the Constitution of the United States or by any legislation in or by the Congress of the United States or by the State, or the amendment of legislation pending its date and as of the date of this Purchase Agreement 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 Congress light of the United Statescircumstances 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 “LITIGATION”] or any information in the Official Statement about the book-entry system, Cede & Co., or DTC; (c) 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, the Treasury Department of the United States, 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, or the favorable reporting for passage of legislation to either House of the Congress of the United States by a Committee of such House to which such legislation has been referred for consideration, or any decision of any federal or state court or any ruling or regulation (final, temporary or proposed) or official statement on behalf of the United States Treasury Department, the Internal Revenue Service or other federal or State authority affecting the federal or State tax status of the Authority, or the interest on or with respect to bonds or notes (including the Bonds); or
(iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority 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
(iv) an order, decree or injunction issued by any court of competent jurisdiction, or order, ruling, regulation (final, temporary or proposed), 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 authority having jurisdiction of the Notes are not subject matter, to the effect that: (i) obligations registration requirements of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that and the Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended; orand (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;
(vi) the opinion of the City Attorney, as counsel to the District, dated the Closing Date and addressed to the District and the Underwriter, substantially in the form attached hereto as Appendix C;
(vii) a certificate of a duly authorized official of the District, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter, to the effect that (A) the District’s representations and warranties contained in the Legal Documents are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date; and (B) no event has occurred since the date of the Official Statement which 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 but should be reflected therein in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, the District makes no representation or warranty with respect to the Excluded Information;
(viii) a certificate of a duly authorized official of the Trustee, dated the Closing Date, to the effect that: (A) the Trustee is a national banking association organized and existing under and by virtue of the laws of the United States, having the full power and being qualified to enter into and perform its duties under the Indenture and to authenticate and deliver the Notes to the Underwriter;
Appears in 1 contract
Samples: Note Purchase Agreement
Conditions to the Obligations of the Underwriter. The Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of the Authority City contained herein. The obligation 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 statements of the officers and other officials of the AuthorityCity, as well as authorized representatives of the City Attorney, Bond Counsel, Disclosure Counsel and the Trustee made in any Bonds certificates or other documents furnished pursuant to the provisions hereof; , to the performance by the Authority 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 Authority City contained herein shall be true true, complete and correct at the date hereof and at the time of the Closing, as if made on the Closing Date.date of the Closing;
(b) At the time of Closing, the Authority Legal Documents shall be in full force and effect as valid and binding agreements between or among the various parties thereto, and the Authority Documents, Legal Documents and the Preliminary Official Statement and the Official Statement shall not have been amended, modified or supplemented except as may have been agreed to in writing by the Underwriter, and all such reasonable actions as, in the Authority Resolution opinion of Bond Counsel, shall be reasonably deem necessary in full force and effect.connection with the transactions contemplated hereby;
(c) At the time of the Closing, no material default shall have occurred or be existing under the Authority Documents Legal Documents, or any other agreement or document pursuant to which any of the AuthorityCity’s financial obligations were executed and delivered, and the Authority City shall not be in default in the payment of principal or interest with respect to any of its financial obligations, which default would materially result in any material adverse change to the financial condition of the City or adversely impact the its ability to make payment of the Authority to pay debt service principal or redemption price of and interest on the Bonds from Revenues.when due;
(d) In recognition of the desire of the Authority 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, the Underwriter shall have the right to cancel the Underwriter’s obligation to purchase the Bonds and to terminate this Purchase Agreement shall be subject to termination in the absolute discretion of the Underwriter by written notice notification, in writing, to the Authority ifCity prior to delivery of and payment for the Bonds, between the date of this Purchase Agreement if at any time prior to and including the Closing Datesuch time, in the Underwriter’s sole and reasonable judgment any of the following events shall occur regardless of whether any of the following events statements of fact were in existence or known of on the date 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 SEC or any other governmental authority having jurisdiction; or
(iv) any event shall occur which makes untrue any material statement or results in an omission to state a material fact necessary to make the statements in the 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
(iiv) 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 or the market price thereof, in the reasonable opinion of the Underwriter, has been materially adversely affected by an amendment to the Constitution of the United States of America or by any legislation in or by the Congress of the United States of America or by the State, or the amendment of legislation pending as of the date of this Purchase Agreement in the Congress of the United StatesStates of America, or 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 StatesStates of America, the Treasury Department of the United StatesStates 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 StatesStates 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, or any decision of any federal or state court or any ruling or regulation (final, temporary or proposed) or official statement on behalf of the United States Treasury Department, the Internal Revenue Service or other federal or State authority affecting the federal or State tax status of the Authority, or the interest on or with respect to bonds or notes (including the Bonds); or
(iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority 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
(ivvii) an order, decree or injunction shall have been issued by any court of competent jurisdiction, or order, ruling, regulation (final, temporary or proposed), 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 authority agency having jurisdiction of the subject matter, to the effect that: (i) obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Indenture Trust Agreement is not exempt from qualification under the Trust Indenture Act of 1939; or (ii) the issuance, offering or sale of obligations of the general character of the Bonds, or the issuance, offering or sale of the Bonds, including any or all underlying obligations, as amendedcontemplated 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; or
(viii) legislation shall be introduced, by amendment or otherwise, or be enacted by the House of Representatives or the Senate of the Congress of the United States of America, or a 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 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 provision of the Securities Act of 1933, as amended and as then in effect, or the Securities Exchange Act of 1934, as amended and as then in effect, or the Trust Indenture Act of 1939, as amended and as then in effect, or with the purpose or effect of 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 settlement, 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 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 broker dealers; or
(xii) any proceeding shall be pending or threatened by the Securities and Exchange Commission against the City; or
(xiii) trading in securities on the New York Stock Exchange or 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 service, which, in the reasonable opinion of the Underwriter, materially adversely affects the market price of the Bonds; or
(xv) the marketability of the Bonds or the market price thereof, in the reasonable opinion of the 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).
(e) at or prior to the Closing, the Underwriter shall receive or have received the following documents, in each case to the reasonable satisfaction, in form and substance, of the Underwriter and Xxxxx Xxxx LLP, Irvine, California (“Underwriter’s Counsel”):
(i) a copy of the default judgment, dated , 20 , entered in favor of the City in connection with City of Chula Vista v.
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The Underwriter’s obligation to purchase the Certificates in the respective amounts set forth opposite their names on Schedule I attached hereto shall be subject to the following additional conditions:
6.1 No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for that purpose shall be pending or, to the knowledge of the Company, threatened by the Commission or by any authority administering any state securities or Blue Sky law; and the Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) under the Act.
6.2 Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any change, or any development involving a prospective change, in or affecting the business or properties of the Company, the Seller or any of their respective affiliates the effect of which, in any case, is, in that Underwriter’s reasonable judgment, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Certificates as contemplated by the Registration Statement and the Prospectus. All actions required to be taken and all filings required to be made by the Issuer under the Act and the Exchange Act prior to the sale of the Certificates shall have been duly taken or made.
6.3 The Company shall have delivered to the Underwriter a certificate, dated the Closing Date, of the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company to the effect that the signer of such certificate has entered into examined this Agreement, the Prospectus, the Pooling and Servicing Agreement, the Servicing Agreements, the Mortgage Loan Purchase Agreement in reliance upon and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(a) the representations and warranties of the Authority contained herein. The obligation of Company in this Agreement and in the Underwriter to accept delivery of Pooling and pay for the Bonds on the Closing Date shall be subject, at the option of the Underwriter, to the accuracy Servicing Agreement are true and correct in all material respects of respects;
(b) the statements of Company has, in all material respects, complied with all the officers agreements and other officials of satisfied all the Authority, as well as authorized representatives of Bond Counsel and the Trustee made in any Bonds or other documents furnished pursuant to the provisions hereof; to the performance by the Authority of conditions on its obligations part to be performed or satisfied hereunder at or prior to the Closing Date; ;
(c) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated;
(d) subsequent to the following additional conditions:respective dates as of which information is given in the Prospectus, and except as set forth or contemplated in the Prospectus, there has not been any material adverse change in the general affairs, business, key personnel, capitalization, financial condition or results of operations of the Company or the Seller;
(ae) The representationsexcept as otherwise stated in the Prospectus, warranties and covenants of there are no actions, suits or proceedings pending before any court or governmental agency, authority or body or, to their knowledge, threatened, against the Authority contained herein shall be Company or the Seller that could reasonably have a material adverse affect on (i) the Company or the Seller or (ii) the transactions contemplated by this Agreement; and
(f) attached thereto are true and correct at copies of a letter or letters from one or more nationally recognized statistical rating agencies confirming that the Certificates have been rated in one of the four highest grades by each of such agencies rating that class of Certificates and that such rating has not been lowered since the date of such letter.
6.4 The Company shall have delivered to the Underwriter a certificate, dated the Closing Date, of the President, an Executive Vice President, a Managing Director or a Director of the Company to the effect that the signer of such certificate has examined the Servicing Agreements, the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreement and this Agreement and that, to his or her knowledge after reasonable investigation, the representations and warranties of the Company contained in this Agreement are true and correct in all material respects.
6.5 The Seller shall have delivered to the Underwriter a certificate, dated the Closing Date, of the President, a Managing Director or a Director of the Seller to the effect that the signer of such certificate has examined the Mortgage Loan Purchase Agreement and that, to his or her knowledge after reasonable investigation, the representations and warranties of the Seller contained in the Mortgage Loan Purchase Agreement are true and correct in all material respects.
6.6 You shall have received the opinion and letter of SNR Xxxxxx US LLP, counsel for the Company and the Seller, dated the Closing Date and substantially to the effect set forth in Exhibit A and Exhibit B.
6.7 You shall have received from counsel for the Underwriter, an opinion dated the Closing Date in form and substance satisfactory to the Underwriter.
(i) You shall have received from Deloitte & Touche llp, certified public accountants, a letter addressed to the Underwriter and dated the date hereof and at satisfactory in form and substance to the time Underwriter and the Underwriter’s counsel, to the effect that they have performed certain specified procedures, all of which have been agreed to by the Underwriter, as a result of which they determined that certain information of an accounting, financial or statistical nature set forth in the Prospectus Supplement under the captions “The Mortgage Pool” and “Description of the Closing, as if made on Certificates” agrees with the records of the Company and the Seller excluding any questions of legal interpretation.
(ii) At the Closing Date, Deloitte & Touche llp and/or any other firm of certified independent public accountants acceptable to you shall have furnished to you a letter, addressed to you, and in form and substance satisfactory to you in all respects, relating to the extent such information is not covered in the letter or letters provided pursuant to Section 6.8(i), to the characteristics of the mortgage loans, as presented in the Prospectus Supplement.
6.9 The Class A Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. (b“Standard & Poor’s”) At and “Aaa” by Xxxxx’x Investors Service, Inc. (“Moody’s”).
6.10 You shall have received the time opinion of Closing___________________, counsel to the Authority Documents Trustee, dated the Closing Date, substantially to the effect set forth in Exhibit C.
6.11 You shall be have received from SNR Xxxxxx US LLP, counsel to the Company, reliance letters with respect to any opinions delivered to Standard & Poor’s and Moody’s. The Company will furnish you with conformed copies of the above opinions, certificates, letters and documents as you reasonably request. If any of the conditions specified in full force and effect as valid and binding agreements between or among the various parties thereto, and the Authority Documents, and the Official Statement this Article 6 shall not have been amendedfulfilled in all material respects when and as provided in this Agreement, modified or supplemented except as may have been agreed to in writing by the Underwriter, and the Authority Resolution shall be in full force and effect.
(c) At the time of the Closing, no material default shall have occurred or be existing under the Authority Documents or any other agreement or document pursuant to which if any of the Authority’s financial obligations were executed opinions and delivered, and the Authority certificates mentioned above or elsewhere in this Agreement shall not be in default all material respects reasonably satisfactory in the payment of principal or interest with respect form and substance to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition of the desire of the Authority 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, the Underwriter shall have the right to cancel the Underwriter’s obligation to purchase the Bonds , this Agreement and to terminate this Purchase Agreement by written notice to the Authority if, between the date of this Purchase Agreement to and including the Closing Date, in the Underwriter’s sole and reasonable judgment any of the following events shall occur regardless of whether any of the following events were in existence or known of on the date of this Purchase Agreement:
(i) any event shall occur which makes untrue any material statement or results in an omission to state a material fact necessary to make the statements in the Official Statement, in the light of the circumstances under which they were made, not misleading, which event, in the reasonable opinion all obligations of the Underwriter would materially hereunder may be canceled at, or adversely affect at any time prior to, the ability of the Underwriter to market the Bonds; or
(ii) the marketability of the Bonds or the market price thereof, in the opinion of Closing Date by the Underwriter, has been materially adversely affected by an amendment . Notice of such cancellation shall be given to the Constitution of the United States or by any legislation Company in or by the Congress of the United States or by the State, or the amendment of legislation pending as of the date of this Purchase Agreement in the Congress of the United States, or 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, the Treasury Department of the United States, 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 Committeewriting, or by the staff of the Joint Committee on Taxation of the Congress of the United States, telephone or the favorable reporting for passage of legislation to either House of the Congress of the United States by a Committee of such House to which such legislation has been referred for consideration, or any decision of any federal or state court or any ruling or regulation (final, temporary or proposed) or official statement on behalf of the United States Treasury Department, the Internal Revenue Service or other federal or State authority affecting the federal or State tax status of the Authority, or the interest on or with respect to bonds or notes (including the Bonds); or
(iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority 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
(iv) an order, decree or injunction issued by any court of competent jurisdiction, or order, ruling, regulation (final, temporary or proposed), 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 authority having jurisdiction of the subject matter, to the effect that: (i) obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended; ortelegraph confirmed in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Shellpoint Mortgage Acceptance LLC)
Conditions to the Obligations of the Underwriter. The Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of the Authority contained herein. The obligation of the Underwriter to accept delivery purchase the Offered Certificates shall be subject to the accuracy of the representations and pay for warranties on the Bonds on part of the Company contained herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date shall be subject, at (including the option filing of any document incorporated by reference therein) and as of the UnderwriterClosing Date, to the accuracy in all material respects of the statements of the officers and other officials of the Authority, as well as authorized representatives of Bond Counsel and the Trustee Company made in any Bonds or other documents furnished certificates delivered pursuant to the provisions hereof; , to the performance by the Authority Company of its obligations to be performed hereunder at or prior to the Closing Date; and to the following additional conditions:
(a) The representationsUnderwriter shall have received from [________________] a letter, warranties and covenants dated the date hereof, confirming that they are independent public accountants within the meaning of the Authority contained herein shall be true Act and correct at the date hereof rules and at the time regulations of the Closing, as if made on Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Closing DateUnderwriter and counsel to the Underwriter.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Offered Certificates shall have been duly taken and made. At and prior to the time Closing Date, no stop order suspending the effectiveness of Closingthe Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted, or to the knowledge of the Company or the Underwriter, shall have been contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or the Servicer which, in the reasonable judgment of the Underwriter, materially impairs the investment quality of the Offered Certificates; (ii) any downgrading in the rating of the Servicer by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of the Servicer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, North Carolina or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriter, the Authority Documents effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Certificates.
(d) On or before the Closing Date, the Underwriter shall be have received evidence satisfactory to it that each class of Offered Certificates has been given the ratings set forth on Schedule I hereto.
(e) The Underwriter shall have received a favorable opinion of [Cadwalader, Wickersham & Taft LLP] [Hunton & Williams LLP], special txx xouxxxx xxx xhe Xxxxany, adxxxxxxd tx xxx Xxderwriter and dated the Closing Date and reasonably satisfactory in full force form and effect substance to the Underwriter and counsel to the Underwriter.
(f) The Underwriter shall have received a favorable opinion of [Cadwalader, Wickersham & Taft LLP] [Hunton & Williams LLP], special xxxxxel xxx xxx Xompxxx, addresxxx xx thx Xxxxxxriter and dated the Closing Date and reasonably satisfactory in form and substance to the Underwriter, with respect to the validity of the Certificates, ERISA matters and such other related matters as valid and binding agreements between or among the various parties theretoUnderwriter shall require, and the Authority DocumentsCompany shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriter shall have received copies of any opinions of counsel for the Company that the Company is required to deliver to any Rating Agency. Any such opinions shall be dated the Closing Date and addressed to the Underwriter or accompanied by reliance letters addressed to the Underwriter.
(h) The Underwriter shall have received an opinion of counsel to the Trustee, dated the Closing Date, in form and substance satisfactory to the Underwriter and its counsel.
(i) The Underwriter shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Official Statement Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(j) At the Closing Date, the Certificates and the Pooling Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(k) The Underwriter shall not have been amendeddiscovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, modified in the opinion of counsel to the Underwriter, is material and is required to be stated therein or supplemented except as may is necessary to make the statements therein not misleading.
(l) The Underwriter shall have been agreed received from [Cadwalader, Wickersham & Taft LLP] [Hunton & Williams LLP], spexxxx xxxxxel xxx xxx Xnderwritex, a xxxxxx daxxx xxx Closing Date with respect to the Final Prospectus, in writing by form and substance satisfactory to the Underwriter.
(m) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling Agreement, the Mortgage Loan Purchase Agreement, the Certificates, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriter, and the Authority Resolution Company shall be in full force have furnished to such counsel all documents and effectinformation that they may reasonably request to enable them to pass upon such matters.
(cn) At the time of the Closing, no material default shall have occurred or be existing under the Authority Documents or any other agreement or document pursuant to which any of the Authority’s financial obligations were executed and delivered, and the Authority shall not be in default in the payment of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition of the desire of the Authority 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, the The Underwriter shall have received a certificate (upon which [Cadwalader, Wickersham & Taft LLP] [Hunton & Williams LLP] shall be entitlex xx xxxx in xxxxering ixx xxxnioxx xxx xetters under the right to cancel Basic Documents) dated the Underwriter’s obligation to purchase Closing Date of an officer of the Bonds and to terminate this Purchase Agreement by written notice Trustee in which such officer shall state that, to the Authority if, between the date best of this Purchase Agreement to and including the Closing Date, in the Underwriter’s sole and such officer's knowledge after reasonable judgment any of the following events shall occur regardless of whether any of the following events were in existence or known of on the date of this Purchase Agreement:
investigation: (i) the Trustee is not an affiliate of any event shall occur which makes other entity listed as a transaction party in the Prospectus Supplement, (ii) the information in the Prospectus Supplement related to the Trustee (the "Trustee Disclosure") includes (a) the Trustee's correct name and form of organization and (b) a discussion of the Trustee's experience serving as trustee for asset-backed securities transactions involving mortgage loans; and (iii) the Trustee Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Trustee Disclosure contains any untrue any statement of material statement fact or results in an omission omits to state a material fact necessary to make the statements therein not misleading.
(o) The Underwriter shall have received a certificate (upon which [Cadwalader, Wickersham & Taft LLP] [Hunton & Williams LLP] shall be entitlex xx xxxx in xxxxering ixx xxxnioxx xxx xetters under the Basic Documents) dated the Closing Date of an officer of [_________________] (the "Originator") in which such officer shall state that, to the best of such officer's knowledge after reasonable investigation: (i) except as disclosed, the Originator is not an affiliate of any other entity listed as a transaction party in 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 BondsProspectus Supplement; or
(ii) the marketability of the Bonds or the market price thereof, information in the opinion of the Underwriter, has been materially adversely affected by an amendment Prospectus Supplement related to the Constitution of Originator (the United States or by any legislation in or by "Originator Disclosure") includes the Congress of the United States or by the StateOriginator's correct name, or the amendment of legislation pending as of the date of this Purchase Agreement in the Congress of the United States, or the recommendation to Congress or endorsement for passage (by press release, other form of notice or otherwise) organization and length of legislation by the President of the United States, the Treasury Department of the United States, 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, or the favorable reporting for passage of legislation to either House of the Congress of the United States by a Committee of such House to which such legislation has been referred for consideration, or any decision of any federal or state court or any ruling or regulation (final, temporary or proposed) or official statement on behalf of the United States Treasury Department, the Internal Revenue Service or other federal or State authority affecting the federal or State tax status of the Authority, or the interest on or with respect to bonds or notes (including the Bonds)time originating mortgage loans; or
(iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority the description of the StateOriginator's origination program includes (a) experience in originating mortgage loans, or a decision by any court of competent jurisdiction within the State shall be rendered which materially adversely affects the market price (b) size and composition of the BondsOriginator's origination portfolio, and (c) the Originator's credit-granting or underwriting criteria for the mortgage loans; or
(iv) except as set forth in the Originator Disclosure, no additional information regarding the Originator's origination program could have a material adverse affect in the performance of the pool assets or the Offered Certificates; and (v) the Originator Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Originator Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading.
(p) The Underwriter shall have received a certificate (upon which [Cadwalader, Wickersham & Taft LLP] [Hunton & Williams LLP] shall be entitlex xx xxxx in xxxxering ixx xxxnioxx xxx xetters under the Basic Documents) dated the Closing Date of an orderofficer of the Servicer in which such officer shall state that, decree or injunction issued by to the best of such officer's knowledge after reasonable investigation: (i) except as disclosed in the Prospectus Supplement, the Servicer is not an affiliate of any court of competent jurisdiction, or order, ruling, regulation other entity listed as a transaction party in the Prospectus Supplement; (final, temporary or proposed), official statement or other ii) the information in the Prospectus Supplement related to the Servicer (the "Servicer Disclosure") includes (a) the Servicer's correct name and form of notice or communication issued or made by or on behalf organization, (b) the correct length of time that the Servicer has been servicing mortgage loans; and (c) a discussion of the Securities and Exchange CommissionServicer's experience in servicing mortgage loans; (iii) except as set forth in the Servicer Disclosure, (a) there are no other servicers responsible for calculating or making distributions to the holders of the Offered Certificates, performing work-outs or foreclosures, or any other governmental authority having jurisdiction material aspect of servicing the mortgage loans, (b) there have been no material changes to the Servicer's servicing policies and procedures during the last three years, (c) no additional information regarding the Servicer's financial condition could have a material affect on performance of the subject matterMortgage Loans or the Offered Certificates, (d) no commingling of funds on deposit in collection accounts will be permitted by the Servicer, (e) no additional information with respect to any special or unique factors involved in servicing the mortgage loans could have a material affect on performance of the Offered Certificates, and (f) no additional information with respect to the effect that: (i) obligations Servicer's process for handling delinquencies, losses, bankruptcies and recoveries could have a material affect on performance of the general character Offered Certificates; (iv) for each other servicer identified in the Prospectus Supplement as responsible for calculating or making distributions to the holders of the BondsOffered Certificates, performing work-outs or foreclosures, or any other material aspect of servicing the Bondsmortgage loans, including any the certifications in clauses (ii) and (iii) above are made with respect to such servicer; and (v) the Servicer Disclosure is true and correct in all material respects and nothing has come to his or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or her attention that that would lead such officer to believe that the Indenture is Servicer Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not exempt from qualification under misleading. The Company will provide or cause to be provided to the Trust Indenture Act Underwriter such conformed copies of 1939such opinions, certificates, letters and documents as amended; orthe Underwriter may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriter. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Underwriter by notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 7.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter has entered into this Purchase Agreement in reliance upon to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Authority Province contained herein. The obligation herein as of the Underwriter date hereof, as of the date of the effectiveness of any amendment to accept delivery of and pay for the Bonds on Registration Statement filed prior to the Closing Date shall be subject, at (including the option filing of any document incorporated by reference therein) and as of the UnderwriterClosing Date, to the accuracy in all material respects of the statements of the officers and other officials of the Authority, as well as authorized representatives of Bond Counsel and the Trustee Province made in any Bonds or other documents furnished certificates pursuant to the provisions hereof; , to the performance by the Authority Province of its obligations to be performed hereunder at or prior to the Closing Date; and to the following additional conditions:
(a) The representations, warranties and covenants No stop order suspending the effectiveness of the Authority contained herein Registration Statement, as amended from time to time, shall be true have been issued and correct at no proceedings for that purpose shall have been instituted or threatened; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 P.M., New York City time, on the second business day following the date hereof or transmitted by a means reasonably calculated to result in filing with the SEC by such date; and at each Issuer Free Writing Prospectus, to the time of extent required by Rule 433 under the ClosingU.S. Securities Act, as if made on shall have been filed with the Closing DateSEC under the U.S. Securities Act.
(b) At The Province shall have furnished to the time Underwriter, on or prior to the Closing Date, a written opinion dated the Closing Date of Closingthe Deputy Attorney General, Assistant Deputy Attorney General, Acting Assistant Deputy Attorney General of the Authority Documents shall be Province or any solicitor who is an employee of the Crown and seconded to the Legal Services Branch, Ministry of Finance and Ministry of Revenue, addressed to the Minister of Finance of the Province to the effect that, based on the assumptions and subject to the qualifications set forth therein:
(i) this Agreement has been duly authorized, executed and delivered by the Province in full force accordance with the laws of the Province and effect as the Order or Orders of the Lieutenant Governor in Council applicable thereto, and constitutes a legal, valid and binding agreements between agreement of the Province enforceable in accordance with its terms;
(ii) the Fiscal Agency Agreement has been duly authorized, executed and delivered by the Province in accordance with the laws of the Province and the Order or among Orders of the various parties Lieutenant Governor in Council applicable thereto, and, assuming due execution and delivery by the Fiscal Agent, constitutes a legal, valid and binding agreement of the Province enforceable in accordance with its terms;
(iii) the Securities have been duly authorized and the Authority Documents, Global Securities have been duly executed by the Province in accordance with the laws of the Province and the Official Statement shall not Order or Orders of the Lieutenant Governor in Council applicable thereto, and, when authenticated in accordance with the provisions of the Fiscal Agency Agreement and delivered to and paid for by the Underwriter pursuant to this Agreement, will constitute legal, valid and binding obligations of the Province, enforceable in accordance with their terms;
(iv) the statements in the Preliminary Final Prospectus and the Final Prospectus under the headings “Description of Debt Securities and Warrants — Canadian Income Tax Considerations” and “Taxation — Canadian Taxation” are accurate in all material respects subject to the qualifications therein stated;
(v) the payment of principal of and interest on the Securities will be a charge on and payable out of the Consolidated Revenue Fund of the Province of Ontario (as defined in the Financial Administration Act (Ontario));
(vi) no authorization, consent, waiver or approval of, or filing, registration, qualification or recording with, any governmental authority of the Province of Ontario or of Canada is required in connection with the execution, delivery and performance by the Province of this Agreement or the Fiscal Agency Agreement or the sale of the Securities by the Province in the manner contemplated in this Agreement and the Final Prospectus, except for the Order or Orders of the Lieutenant Governor in Council and an approval under section 28 of the Financial Administration Act (Ontario), which have been amendedobtained;
(vii) no stamp or other similar duty or levy is payable under the laws of the Province of Ontario or the laws of Canada applicable in the Province in connection with the execution, modified or supplemented except as may have been agreed to in writing delivery and performance by the Underwriter, Province of this Agreement and the Authority Resolution shall Fiscal Agency Agreement, or in connection with the issue and sale of the Securities by the Province in the manner contemplated in this Agreement, the Time of Sale Information and the Final Prospectus; and
(viii) Her Majesty the Queen in right of Ontario may be sued in full force the courts of the Province of Ontario with regard to any claims arising out of or relating to the obligations of the Province under the Securities. No law in the Province of Ontario requires the consent of any public official or authority for suit to be brought or judgment to be obtained against Her Majesty the Queen in right of Ontario arising out of or relating to the obligations of the Province under the Securities, though in certain circumstances prior notice and effectparticulars of a claim must be given to Her Majesty the Queen in right of Ontario. An amount payable by Her Majesty the Queen in right of Ontario under an order of a court of the Province of Ontario that is final and not subject to appeal is payable out of the Consolidated Revenue Fund of the Province of Ontario pursuant to the Proceedings Against the Crown Act (Ontario).
(c) At the time of the Closing, no material default shall have occurred or be existing under the Authority Documents or any other agreement or document pursuant to which any of the Authority’s financial obligations were executed and delivered, and the Authority shall not be in default in the payment of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition of the desire of the Authority 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, the The Underwriter shall have received on the right to cancel the Underwriter’s obligation to purchase the Bonds and to terminate this Purchase Agreement by written notice Closing Date from Shearman & Sterling LLP, United States counsel to the Authority ifProvince, between the date of this Purchase Agreement to and including favorable opinions dated the Closing Date, in Date to the Underwriter’s sole and reasonable judgment any of the following events shall occur regardless of whether any of the following events were in existence or known of on the date of this Purchase Agreementeffect that:
(i) the statements in the Preliminary Final Prospectus, read together with the Time of Sale Information, and the Final Prospectus under the caption “Description of Bonds” and “Underwriting”, in each case, insofar as such statements constitute summaries of documents referred to therein, fairly summarize in all material respects the documents referred to therein;
(ii) the statements in the Preliminary Final Prospectus, read together with the Time of Sale Information, and the Final Prospectus under the caption “Description of Debt Securities and Warrants— United States Income Tax Considerations”, as supplemented by “Taxation — United States Taxation”, in each case, insofar as such statements constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein;
(iii) the statements in the Preliminary Final Prospectus and the Final Prospectus under the caption “Taxation — United Kingdom Taxation”, insofar as such statements purport to summarize certain tax laws of the United Kingdom, constitute a fair summary of the matters addressed therein;
(iv) each of the Registration Statement and the Final Prospectus, excluding the documents incorporated by reference therein, and any event supplements or amendments thereto (other than the financial statements and other financial or statistical data contained therein or omitted therefrom, as to which such counsel need not express any opinion) appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act and the applicable rules and regulations of the SEC thereunder; and
(v) each of the documents incorporated by reference in the Preliminary Final Prospectus, read together with the Time of Sale Information, and the Final Prospectus (other than the financial statements and other financial or statistical data contained therein or omitted therefrom, as to which such counsel need express no opinion), except to the extent that any statement therein is modified or superseded in the Preliminary Final Prospectus or the Final Prospectus, at the time it was filed with the SEC, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Exchange Act and the applicable rules and regulations of the SEC thereunder. Such counsel shall occur also state that although they have not verified, are not passing upon and do not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Time of Sale Information or the Final Prospectus (including the documents incorporated by reference therein), such counsel has, however, generally reviewed and discussed such statements with representatives of the Ontario Financing Authority and Ministry of Finance of the Province and, in the course of such review and discussion, no facts have come to such counsel’s attention which makes gives them reason to believe that (A) the Registration Statement (including the documents incorporated by reference therein, other than the financial statements and other financial or statistical data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained an untrue any statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, (B) the Final Prospectus as amended or supplemented, if applicable (including the documents incorporated by reference therein, other than the financial statements and other financial or statistical data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of such Final Prospectus as amended or supplemented, if applicable, or the Closing Date, contained or contains an untrue statement of a material fact or results in an omission omitted or omits to state a material fact necessary in order to make the statements therein, in the Official Statementlight of the circumstances under which they were made, not misleading or (C) the Time of Sale Information, at the Time of Sale (which such counsel may assume to be the date of the Underwriting Agreement) (other than the financial statements and other financial or statistical data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving such opinions, which eventsuch counsel may rely, in without independent investigation, as to matters relating to the reasonable opinion federal law of Canada or the laws of the Underwriter would materially or adversely affect the ability Province of the Underwriter to market the Bonds; or
(ii) the marketability of the Bonds or the market price thereofOntario, in on the opinion of the Deputy Attorney General, Assistant Deputy Attorney General, Acting Assistant Deputy Attorney General of the Province or any solicitor who is an employee of the Crown and seconded to the Legal Services Branch, Ministry of Finance and Ministry of Revenue, rendered pursuant to Section 7(b) hereof.
(d) The Underwriter shall have received on the Closing Date from Xxxxx Xxxx & Xxxxxxxx, United States counsel for the Underwriter, has been materially adversely affected by an amendment and Stikeman Elliott LLP, Canadian counsel for the Underwriter, favorable opinions dated the Closing Date as to the Constitution of the United States or by any legislation in or by the Congress of the United States or by the State, or the amendment of legislation pending as of the date of this Purchase Agreement in the Congress of the United States, or 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, the Treasury Department of the United States, 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, or the favorable reporting for passage of legislation to either House of the Congress of the United States by a Committee of such House to which such legislation has been referred for consideration, or any decision of any federal or state court or any ruling or regulation (final, temporary or proposed) or official statement on behalf of the United States Treasury Department, the Internal Revenue Service or other federal or State authority affecting the federal or State tax status of the Authority, or the interest on or with respect to bonds or notes (including the Bonds); or
(iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority 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
(iv) an order, decree or injunction issued by any court of competent jurisdiction, or order, ruling, regulation (final, temporary or proposed), official statement or other form of notice or communication issued or made by or on behalf validity of the Securities and Exchange Commission, or any as to the proceedings and other governmental authority having jurisdiction related matters incident to the issuance and sale of the subject matterSecurities on the Closing Date, and the Underwriter shall have received on the Closing Date from Xxxxx Xxxx & Xxxxxxxx a favorable opinion dated the Closing Date with respect to the effect that: (i) obligations Registration Statement, the Time of Sale Information and the general character Final Prospectus and other related matters as the Underwriter may reasonably require. In giving their opinion, Xxxxx Xxxx & Xxxxxxxx may rely upon the opinion of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under the Securities Act Stikeman Elliott LLP as to matters of 1933, as amended, or that the Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended; orCanadian and Ontario law.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The Underwriter has entered hereby enters into this Purchase Agreement Contract in reliance upon the representations and warranties of the Authority and the City contained herein. The obligation herein and the representations and warranties of the Underwriter 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 Bonds on the Closing Date shall be subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties of the 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 Authority, as well as authorized representatives of Bond Counsel Authority and the Trustee City made in any Bonds certificate or other documents document furnished pursuant to the provisions hereof; , to the performance by the 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; , and also shall be subject to the following additional conditions:
(a) The representationsUnderwriter 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 and covenants of the Authority and the City contained herein shall be true and correct at on the date hereof and at on the time of the ClosingClosing Date, as if made on and at the Closing Date.;
(bc) At As of the time of ClosingClosing Date, the Authority Financing Documents shall be in full force have been duly authorized, executed and effect as valid and binding agreements between or among delivered by the various respective parties thereto, and the Authority Documents, and the Official Statement shall not have been amendedduly authorized, modified or supplemented except executed and delivered by the Authority, all in substantially the forms heretofore submitted to the Underwriter, with only such changes as may shall have been agreed to in writing by the Underwriter, and the Authority Resolution such Financing Documents shall be in full force and effect.
(c) At effect and shall not have been amended, modified or supplemented and the time Official Statement shall not have been supplemented or amended, except in any such case as may have been agreed to by the Underwriter; and there shall be in full force and effect such resolution or resolutions of the Closing, no material default shall have occurred or be existing under the Authority Documents or any other agreement or document pursuant to which any Board of the Authority’s financial obligations were executed and delivered, and the Authority shall not be in default in the payment of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition of the desire Directors of the Authority and the Underwriter to effect a successful City Council of the City as, in the opinion of Bond Counsel, shall be necessary or appropriate in connection with the transactions contemplated hereby;
(d) 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 BondsBonds shall not have been materially adversely affected, and in view the reasonable judgment of the potential adverse impact of any of the following events on such Underwriter (evidenced by a public offering, the Underwriter shall have the right to cancel the Underwriter’s obligation to purchase the Bonds and to terminate this Purchase Agreement by written notice to the Authority if, between terminating the date of this Purchase Agreement to and including the Closing Date, in the Underwriter’s sole and reasonable judgment any of the following events shall occur regardless of whether any of the following events were in existence or known of on the date of this Purchase Agreement:
(i) any event shall occur which makes untrue any material statement or results in an omission to state a material fact necessary to make the statements in 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 obligation of the Underwriter to market accept delivery of and make any payment for the Bonds; or), by reason of any of the following:
(ii1) the marketability of the Bonds or the market price thereof, in the opinion of the Underwriter, has been materially adversely affected by an amendment to the Constitution of the United States or by any 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 by the State, legislature of any state having jurisdiction of the subject matter or the amendment of legislation pending as of the date of this Purchase Agreement in the Congress of the United States, States shall have been amended or legislation shall have been recommended to the recommendation Congress of the United States or to Congress any state having jurisdiction of the subject matter or endorsement otherwise endorsed for passage (by press release, other form of notice or otherwise) of legislation by the President of the United States, the Treasury Department of the United States, 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 legislation shall have been proposed for consideration of legislation by either such Committee or by any member thereof, thereof or the presentment of legislation for consideration presented as an option for consideration by either such Committee, 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 the favorable reporting legislation shall have been favorably reported for passage of legislation to either House of the Congress of the 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 or of the State of California or the Tax Court of the United States, or a ruling shall have been made or a regulation or temporary regulation shall have been proposed or made or any decision other release or announcement shall have been made by the Treasury Department of any the United States, the Internal Revenue Service or other federal or state State of California authority, with respect to federal or State of California taxation upon revenues or other income of the general character to be derived by the Authority or upon interest received on obligations of the general character of the Bonds which may have the purpose or effect, directly or indirectly, of affecting the tax status of the Authority, its property or income, its securities (including the Bonds) or the interest thereon, or (with respect to the Bonds) any tax exemption granted or authorized by State of California legislation or materially and adversely affecting the market for the Bonds or the market price generally of obligations of the general character of the Bonds;
(2) legislation 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 the Constitution of the United States or any ruling by the Tax Court of the United States, or an order, ruling, regulation (final, temporary or proposed) or official statement on behalf of the United States Treasury Department, the Internal Revenue Service or other federal or State authority affecting the federal or State tax status of the Authority, or the interest on or with respect to bonds or notes (including the Bonds); or
(iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority 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
(iv) an order, decree or injunction issued by any court of competent jurisdiction, or order, ruling, regulation (final, temporary or proposed), 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 authority agency having jurisdiction of the subject matter, matter shall have been made or issued to the effect that: (i) that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Trust Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended;
(3) the outbreak or escalation in military hostilities or declaration by the United States of a national or international emergency or war or other calamity or crisis, or escalation thereof, the 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 Bonds as contemplated hereby or by the Official 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 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) 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 Bonds, or the issuance, offering or sale of the 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 Bonds or any other outstanding debt of the City’s Water System by S&P Global Ratings or Fitch, Inc. or ratings on the Bonds shall have been placed on credit watch with a “Negative Outlook” by S&P Global Ratings Services or Fitch, Inc.; or
(8) an event shall occur or be discovered which makes untrue or incorrect in any material respect, as of the time of such event, any statement or information contained in the Official Statement or which is not reflected in the Official Statement but should be reflected therein in order to make the statements contained therein not misleading in any material respect and requires an amendment of or supplement to the Official Statement.
(e) 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 Financing Documents, each duly executed and delivered by the respective parties thereto.
(3) The unqualified approving opinion of Bond Counsel, dated the Closing Date and addressed to the Authority, 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 Xxxxxx Xxxx Xxxxxxxxx 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 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 Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, LLP (“Underwriter’s Counsel”), dated the Closing Date and addressed to the Underwriter, to the effect that (i) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Trust Indenture is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended,
Appears in 1 contract
Samples: Purchase Contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter has entered into this Purchase Agreement hereunder shall be subject to the accuracy in reliance upon all material respects of the representations and warranties on the part of the Authority Issuer and the Borrower contained herein. The obligation herein as of the Underwriter to accept delivery date hereof and as of and pay for the Bonds on the Closing Date shall be subject, at the option of the UnderwriterDate, to the accuracy in all material respects of the statements of the officers and other officials of Issuer, the AuthorityBank, as well as authorized representatives of Bond Counsel and the Trustee Borrower made in any Bonds certificates or other documents furnished pursuant to the provisions hereof; , to the performance by the Authority Issuer and the Borrower of its their respective obligations to be performed hereunder at or prior to the Closing Date; Date and to the following additional conditions:
(a) The representations, warranties and covenants of the Authority contained herein shall be true and correct at the date hereof and at the time of the Closing, as if made on At the Closing Date.
(b) At the time of Closing, the Authority Documents Indenture, the Letter of Representations, the Loan Agreement, the Notes, the Mortgage, the Reimbursement Agreement and the Letter of Credit shall be in full force have been duly authorized, executed and effect as valid and binding agreements between or among delivered by the various respective parties thereto, and the Authority Documents, and the Official Statement shall not have been delivered to the Underwriter, and none of the foregoing agreements shall have been amended, modified or supplemented so as to materially affect the content thereof, except as may have been agreed to in writing by the Underwriter, and there shall have been taken in connection therewith, with the Authority Resolution issuance of the Series 1996 Bonds, and with the transactions contemplated thereby and by this Agreement, all such actions as Xxxxx & Xxxxxxx, counsel to the Underwriter ("Underwriter's Counsel"), reasonably shall deem to be necessary and appropriate;
(b) At the Closing Date, the Official Statement shall not have been amended, modified or supplemented, except as may have been agreed to in full force and effect.writing by the Underwriter;
(c) At or prior to the time of the ClosingClosing Date, no material default event shall have occurred or be existing under the Authority Documents or any other agreement or document pursuant to which any of the Authority’s financial obligations were executed and delivered, and the Authority shall not be in default in the payment of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition of the desire of the Authority 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, the Underwriter shall have the right to cancel the Underwriter’s obligation to purchase the Bonds and to terminate this Purchase Agreement by written notice to the Authority if, between the date of this Purchase Agreement to and including the Closing Dateinformation become known which, in the Underwriter’s sole and reasonable judgment any of the following events shall occur regardless of whether any of the following events were in existence or known of on the date of this Purchase Agreement:
(i) any event shall occur which Underwriter, makes untrue in any material respect any statement or results information contained in an omission 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 in the Official Statementtherein, in the light of the circumstances under which they were made, not misleading.
(d) At or prior to the Closing Date, which eventthe Underwriter shall have received an original or copies, where appropriate, of the following documents, in the reasonable opinion of each case satisfactory in form and substance to the Underwriter would materially and in each case conforming in all material respects with any description thereof contained in the Official Statement:
(i) The Indenture, the Letter of Representations, the Loan Agreement, the Series 1996 Bonds, the Reimbursement Agreement, the Letter of Credit, the Mortgage, the Remarketing Agreement and the Notes, each duly executed and delivered by the respective parties thereto, with such amendments, modifications or adversely affect supplements as may have been agreed to in writing by the ability of the Underwriter to market the Bonds; orUnderwriter;
(ii) The opinion of Xxxxxxxx Xxxxxxxxx & Xxxxxx, counsel to the marketability of Borrower, dated the Bonds or the market price thereofClosing Date, in substantially the opinion of the Underwriter, has been materially adversely affected by an amendment to the Constitution of the United States or by any legislation in or by the Congress of the United States or by the State, or the amendment of legislation pending form attached hereto as of the date of this Purchase Agreement in the Congress of the United States, or 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, the Treasury Department of the United States, 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, or the favorable reporting for passage of legislation to either House of the Congress of the United States by a Committee of such House to which such legislation has been referred for consideration, or any decision of any federal or state court or any ruling or regulation (final, temporary or proposed) or official statement on behalf of the United States Treasury Department, the Internal Revenue Service or other federal or State authority affecting the federal or State tax status of the Authority, or the interest on or with respect to bonds or notes (including the Bonds); orExhibit A;
(iii) any legislationThe opinion of Seyfarth, ordinanceShaw, rule or regulation shall be enacted by any governmental bodyXxxxxxxxxxx & Xxxxxxxxx, department or authority of counsel to the StateBank, or a decision by any court of competent jurisdiction within dated the State shall be rendered which materially adversely affects Closing Date, in substantially the market price of the Bonds; orform attached hereto as Exhibit B;
(iv) an orderThe opinions of Ice Xxxxxx Xxxxxxx & Xxxx, decree or injunction issued Xxxxx Xxxxxxx-Xxxxxx and Xxxxx, Xxxxx and Xxxxxxxx, Co-Bond Counsel, dated the Closing Date, in substantially the form attached hereto as Exhibit C;
(v) The opinion of Xxxxx & Xxxxxxx, Underwriter's Counsel, dated the Closing Date, in substantially the form attached hereto as Exhibit D;
(vi) A certificate, dated the Closing Date, signed by any court of competent jurisdiction, or order, ruling, regulation (final, temporary or proposed), official statement or other form of notice or communication issued or made by or on behalf a duly authorized officer of the Securities and Exchange CommissionBank, or any other governmental authority having jurisdiction in substantially the form attached hereto as Exhibit E;
(vii) A certificate, dated the Closing Date, signed by a duly authorized official of the subject matterIssuer, in form satisfactory to the Underwriter and the Underwriter's Counsel, to the effect that: that the representations and warranties of the Issuer set forth in Section 4 hereof are true, correct and complete on the date thereof;
(iviii) obligations A certificate, dated the Closing Date, signed by a duly authorized officer of the general character partner of the BondsBorrower, or in form satisfactory to the BondsUnderwriter and the Underwriter's Counsel, including any or all underlying arrangements, are not exempt from registration under to the Securities Act of 1933, as amended, or effect that the Indenture is not exempt from qualification under representations and warranties of the Trust Indenture Act of 1939Borrower set forth in Section 5 hereof are true, as amended; orcorrect and complete on the date thereof;
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of the Authority contained herein. 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 and warranties on the part of the City contained herein, to the accuracy in all material respects of the statements of the officers and other officials of the Authority, as well as authorized representatives of Bond Counsel City and the Trustee Community Facilities District made in any Bonds certificates or other documents furnished pursuant to the provisions hereof; , to the performance by the Authority City and the Community Facilities District of its their obligations to be performed hereunder at or prior to the Closing Date; and Date and, to the following additional conditions:
(a) The representations, warranties and covenants of the Authority contained herein shall be true and correct at the date hereof and at the time of the Closing, as if made on A. At the Closing Date.
(b) At the time of Closing, the Authority Community Facilities District Resolutions, the Formation Documents, and the City Documents shall be in full force and effect as valid and binding agreements between or among the various parties theretoeffect, and the Authority Documents, and the Official Statement shall not have been amended, modified or supplemented supplemented, except as may have been agreed to in writing by the Underwriter, and the Authority Resolution shall be in full force and effect.
(c) At the time of the Closing, no material default there shall have occurred or be existing under been taken in connection therewith, with the Authority Documents or any other agreement or document pursuant to which any of the Authority’s financial obligations were executed and delivered, and the Authority shall not be in default in the payment of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition of the desire of the Authority and the Underwriter to effect a successful public offering issuance of the Bonds, and with the transactions contemplated thereby, and by this Purchase Agreement, all such actions as, in view 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 potential adverse impact 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 following events on such a public offeringState, 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 the Underwriter’s its obligation to purchase the Bonds and to terminate this Purchase Agreement by written notice to the Authority City if, between the date of this Purchase Agreement to and including the Closing Date, in the Underwriter’s sole and reasonable judgment any of the following events shall occur regardless of whether any of (each a “Termination Event”):
1. Between the following events were in existence date hereof and the Closing Date, the market price or known of marketability, at the initial offering prices set forth on the date cover page of this Purchase Agreement:
(i) any event shall occur which makes untrue any material statement or results in an omission to state a material fact necessary to make the statements in the Official Statement, in the light of the circumstances under which they were madeBonds, not misleading, which event, in the reasonable opinion of the Underwriter would materially or adversely affect the ability of the Underwriter to market enforce contracts for the sale of the Bonds; or
(ii) the marketability of the Bonds or the market price thereof, shall have been materially adversely affected, in the opinion reasonable judgment of the Underwriter, has been materially adversely affected Underwriter (evidenced by an amendment a written notice to the Constitution City terminating the obligation of the United States or Underwriter to accept delivery of and pay for the Bonds), by reason of any legislation of the following:
a. Legislation introduced in or enacted (or resolution passed) by the Congress of the United States or by the State, of America or the amendment of legislation pending as legislature of the date of this Purchase Agreement in State or recommended to the Congress of the United States, or 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 StatesStates of America or a member of the President’s Cabinet, the Treasury Department of the United StatesTreasury, the Internal Revenue Service or the Chairman or ranking minority any member of the Committee on Finance of the United States Senate Congress 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, or the favorable reporting favorably reported for passage of legislation to either House of the Congress of the United States by a Committee any committee of such House to which such legislation has had been referred for consideration, or any a decision rendered by a court established under Article III of any federal or state court or any ruling or regulation (final, temporary or proposed) or official statement on behalf the Constitution of the United States Treasury Department, of America or by the Internal Revenue Service or other federal or State authority affecting the federal or State tax status Tax Court of the AuthorityUnited States of America, or the interest on or with respect to bonds or notes (including the Bonds); or
(iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority 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
(iv) an order, decree or injunction issued by any court of competent jurisdiction, or order, ruling, regulation (final, temporary or proposed), official 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 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 or communication issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental authority agency having jurisdiction of the subject matter, to the effect that: (i) that obligations of the general character of the Bonds, the Resolution or the Bonds, including any or all underlying arrangementsCity Documents, are not exempt from registration under or other requirements of the 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, or that the issuance, offering or sale of obligations of the general character of the Bonds, 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;
c. A general suspension of trading in securities 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 Securities and Exchange Commission or any other governmental authority having jurisdiction;
d. There shall have occurred, (1) any material outbreak or escalation of hostilities or the declaration by the United States of America of a national emergency or war, (2) any other calamity or crisis in the financial markets of the United States of America or elsewhere, or (3) the sovereign debt rating of the United States of America is downgraded by any major credit rating agency or a payment default occurs on United States Treasury obligations, ;
e. Except as disclosed in or contemplated by 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 amendment to the federal or California Constitution or any action by any federal or State court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the City or the Community Facilities District, their property, income, securities (or interest thereon), the validity or enforceability of Special Taxes;
3. Any event 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 or in the Official Statement or has the effect that the Preliminary Official Statement or 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 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 (including the imposition of any limitation in 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 Comptroller of the Currency, the Securities and Exchange Commission or any other federal or State agency or the Congress of the United States of America, or by Executive Order;
6. A decision by a 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 Exchange Commission 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 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, 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 Community Facilities District.
8. The commencement of an Action described in Section 2(H). Upon the occurrence of a Termination Event and the termination of this Purchase Agreement by the Underwriter, all obligations of the City, the Community Facilities District, and the Underwriter 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 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:
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of the Authority contained herein. 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 and warranties on the part of the 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 Authority, as well as authorized representatives of Bond Counsel County and the Trustee Developer made in any Bonds certificates or other documents furnished pursuant to the provisions hereof; , to the performance by the Authority County of its obligations to be performed hereunder at or prior to the Closing Date; Date and to the following additional conditions:
(a) The representations, warranties and covenants of the Authority contained herein shall be true and correct at the date hereof and at the time of the Closing, as if made on At the Closing Date.
(b) At the time of Closing, the Authority County Documents shall be in full force and effect as valid and binding agreements between or among the various parties theretoeffect, and the Authority Documents, and the Official Statement shall not have been amended, modified or supplemented supplemented, except as may have been agreed to in writing by the Underwriter, and the Authority Resolution shall be in full force and effect.
(c) At the time of the Closing, no material default there shall have occurred or be existing under been taken in connection therewith, with the Authority Documents or any other agreement or document pursuant to which any issuance of the Authority’s financial obligations were executed and delivered, and the Authority shall not be in default in the payment of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition of the desire of the Authority 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, the Underwriter shall have the right to cancel the Underwriter’s obligation to purchase the Bonds and to terminate with the transactions contemplated thereby and by this Purchase Agreement by written notice to the Authority if, between the date of this Purchase Agreement to and including the Closing Date, in the Underwriter’s sole and reasonable judgment any of the following events shall occur regardless of whether any of the following events were in existence or known of on the date of this Bond Purchase Agreement:
(i) any event shall occur which makes untrue any material statement or results in an omission to state a material fact necessary to make the statements in 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
(ii) the marketability of the Bonds or the market price thereofall such actions as, in the opinion of Norton Xxxx Xxxxxxxxx US LLP Bond Counsel for the UnderwriterCounty, has shall be necessary and appropriate;
(b) Between the date hereof and the Closing Date, the market price or marketability of the Bonds at the initial offering prices set forth in the Official Statement shall not have been materially adversely affected affected, in the judgment of the Underwriter (evidenced by an amendment a written notice to the Constitution County terminating the obligation of the United States or Underwriter to accept delivery of and pay for the Bonds), which judgment shall be formed (to the maximum extent reasonably practicable under the circumstances) only after consultation with the County’s financial advisor, 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 by the State, or the amendment of legislation pending as of the date of this Purchase Agreement in recommended to the Congress of the United States, or 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, the Treasury Department of the United StatesTreasury, the Internal Revenue Service Service, or the Chairman or ranking minority any member of the Committee on Finance of the United States Senate or the Committee on Ways and Means of the United States House of RepresentativesCongress, 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, or the favorable reporting favorably reported for passage of legislation to either House of the Congress of the United States by a Committee any committee of such House to which such legislation has had been referred for considerationconsideration 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 any decision of any federal or state court or any ruling or an order, ruling, regulation (final, temporary or proposed) ), press release or official statement other form of notice issued or made by or on behalf of the United States Treasury Department, Department or the Internal Revenue Service or other federal or State authority affecting the federal or State tax status of the AuthorityUnited 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 enacted (or resolution passed) by the Congress of the United States of America, or the interest on or with respect to bonds or notes (including the Bonds); or
(iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority 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
(iv) an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), official statement press release or other form of notice or communication issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental authority agency having jurisdiction of the subject matter, to the effect that: (i) that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under or other requirements of the 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, or of the Bonds, including any or all underwriting arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws, rules or regulations as amended and then in effect;
(3) any amendment to the federal or California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the validity or enforceability of the Reassessments;
(4) the declaration of war or the escalation of, or engagement 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, or the financial community in, the United States the effect of which is such as to make it impracticable or inadvisable to proceed with the remarketing and redelivery of the Bonds as contemplated hereby or by the Official Statement;
(5) 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;
(6) 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;
(7) 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 Bonds, or the remarketing, reoffering or redelivery of the Bonds, 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; or
(8) 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 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.
(c) 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) The County Documents, together with a certificate dated as of the Closing 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 one duly approved by the Board of Supervisors;
(2) The Official Statement, duly executed by the County;
(3) Unqualified approving opinion for the Bonds, dated the Closing Date and addressed to the County, of Norton Xxxx Xxxxxxxxx US LLP, Bond Counsel for the County, in the form attached to the Preliminary Official Statement as Appendix D, and a reliance letter dated the Closing Date addressed to the Underwriter, to the effect that such approving opinion addressed to the County 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 Norton Xxxx Xxxxxxxxx US LLP, Bond Counsel for the County, to the effect that (i) this Bond Purchase Agreement, the Indenture, the Escrow Agreement and the Continuing Disclosure Certificate have been duly authorized, executed and delivered by the County, and, assuming such agreements constitute valid and binding obligations of the other parties thereto, constitute the legally valid and binding agreements of the County enforceable in accordance with their terms, except as enforcement may be limited by bankruptcy, moratorium, insolvency or other laws affecting creditor’s rights or remedies and is subject to general principles of equity;
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter has entered into to purchase, and to accept delivery of and pay for, the Bonds will be subject to the completeness and correctness, on the date of this Purchase Agreement in reliance upon and on the Closing Date, of the representations and warranties of the Authority contained herein. 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 statements of the officers and other officials of the Authority, as well as authorized representatives of Bond Counsel and the Trustee Issuer made in any Bonds or other documents furnished pursuant to the provisions hereofthis Agreement; to the performance by the Authority Issuer of its obligations to be performed hereunder at or prior to the Closing Dateand covenants under this Agreement; and to the following additional conditions:
(a) conditions precedent: The representationsBonds, warranties the Certificate of Award, this Agreement, the Continuing Disclosure Agreement, the Bond Registrar Agreement and covenants the Escrow Agreement shall have been duly authorized and executed by the Issuer. The Bond Ordinance shall have been duly passed by the Issuer and be effective. All necessary actions of the Authority contained herein shall be true and correct at Issuer relating to the date hereof and at the time of the Closing, as if made on the Closing Date.
(b) At the time of ClosingBasic Documents, the Authority Documents Continuing Disclosure Agreement, the Escrow Agreement and the Bonds shall be in full force and effect as valid and binding agreements between without rescission or among modification. The Basic Documents, the various parties thereto, Continuing Disclosure Agreement and the Authority Documents, Escrow Agreement shall be in full force and effect and they and the Official Statement shall not have been amended, modified or supplemented (except as may have been agreed to in writing by with the consent of the Underwriter). [The Bond Insurer shall have delivered the Bond Insurance Policy, and the Authority Resolution Bond Insurance Policy shall be in full force and effect.
(c) At ] There shall have been taken, in connection with the time issuance of the ClosingBonds and with the transactions contemplated in this Agreement and in those documents, no material default shall have occurred or be existing under the Authority Documents or any other agreement or document pursuant to which any of the Authority’s financial obligations were executed and delivered, and the Authority shall not be in default all such actions as in the payment opinion of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition of the desire of the Authority Bond Counsel are legally necessary 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, the appropriate. The Underwriter shall have the right to cancel the Underwriter’s its obligation to purchase purchase, and to accept delivery of and pay for, the Bonds and to terminate this Purchase Agreement by written notice to the Authority if, between the date of this Purchase Agreement to and including the Closing Date, Date in the Underwriter’s sole and reasonable judgment any of the following events shall occur regardless of whether any of the following events were in existence cases: Legislation is enacted or known of on the date of this Purchase Agreement:
(i) any event shall occur which makes untrue any material statement or results in an omission to state a material fact necessary to make the statements in 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
(ii) the marketability of the Bonds or the market price thereof, in the opinion of the Underwriter, has been materially adversely affected favorably reported for passage by an amendment to the Constitution at least one house of the United States Congress (including any committee of such a house or by any legislation in a conference committee of Congress) or by the Congress Ohio General Assembly (including any committee of a house of the United States or by the State, or the amendment of legislation pending as of the date of this Purchase Agreement in the Congress of the United States, or 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, the Treasury Department of the United States, 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, or the favorable reporting for passage of legislation to either House of the Congress of the United States by a Committee of such House to which such legislation has been referred for consideration, or any decision of any federal or state court or any ruling or regulation (final, temporary or proposed) or official statement on behalf of the United States Treasury Department, the Internal Revenue Service or other federal or State authority affecting the federal or State tax status of the Authority, or the interest on or with respect to bonds or notes (including the BondsOhio General Assembly); or
(iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority of the State, or a federal court decision by any court of competent jurisdiction within the State shall be rendered which materially adversely affects the market price of the Bonds; or
(iv) an order, decree or injunction issued by any court of competent jurisdictionrendered, or order, an official ruling, regulation (final, temporary or proposed), official statement or other form of notice or communication issued or decision shall be made by a governmental agency or on behalf department having appropriate jurisdiction, any of which has the Securities and Exchange Commissionpurpose or effect, directly or indirectly, of: (A) materially adversely affecting the Tax Exemption; (B) providing that the Bonds, or any other governmental authority having jurisdiction of the subject matter, to the effect that: (i) obligations securities of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are will not be exempt from registration under the Securities Act of 1933, as amendedamended and as then in effect; or (C) causing the issuance, offering or sale of the Bonds, or that securities of the Indenture general character of the Bonds, to be in violation of any provision of the Securities Act of 1933, as amended and as then in effect or the Securities Exchange Act of 1934, as amended and as then in effect. There exists any event or circumstance which either makes untrue or incorrect, in a material respect, any statement or information contained in the Official Statement, or is not exempt reflected in the Official Statement but should be reflected in the Official Statement in order to make the statements and information contained in that Statement not misleading in any material respect. There shall have occurred any new outbreak of hostilities directly involving the armed forces of the United States of America, or other new national or international calamity or crisis, other than such that represents the continuation, deterioration or escalation of existing hostilities, calamities or crises, and the effect of which on the financial markets of the United States of America is such that, in the reasonable opinion of the Underwriter, will adversely affect the market for the Bonds or make it impracticable for the Underwriter to sell the Bonds at the contemplated offering price(s) for them. There is in force a general suspension of trading on the New York Stock Exchange or general minimum or maximum prices for trading on the New York Stock Exchange shall have been fixed and be in force, or a general banking moratorium is declared by either federal, Ohio or New York authorities having jurisdiction and is in force. In the reasonable judgment of the Underwriter, the market price of the Bonds, or the market price of securities of the general character of the Bonds, would be adversely affected because either: additional material restrictions not in force as of the date of this Agreement shall have been imposed upon trading in securities generally by any federal, Ohio or New York governmental authority or by any United States national securities exchange; or the New York Stock Exchange or other national securities exchange, or any governmental authority, shall impose as to the Bonds or securities 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. There occurs any material adverse change in the financial affairs and condition of the Issuer from qualification under those reflected in or contemplated by the Trust Indenture Act of 1939, as amended; orOfficial Statement.
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of the Authority City contained herein. The obligation 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 statements of the officers and other officials of the AuthorityCity, as well as authorized representatives of the City Attorney, Bond Counsel, Disclosure Counsel and the Trustee made in any Bonds certificates or other documents furnished pursuant to the provisions hereof; , to the performance by the Authority 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 Authority City contained herein shall be true true, complete and correct at the date hereof and at the time of the Closing, as if made on the Closing Date.date of the Closing;
(b) At the time of Closing, the Authority Legal Documents shall be in full force and effect as valid and binding agreements between or among the various parties thereto, and the Authority Documents, Legal Documents and the Preliminary Official Statement and the Official Statement shall not have been amended, modified or supplemented except as may have been agreed to in writing by the Underwriter, and all such reasonable actions as, in the Authority Resolution opinion of Bond Counsel, shall be reasonably deem necessary in full force and effect.connection with the transactions contemplated hereby;
(c) At the time of the Closing, no material default shall have occurred or be existing under the Authority Documents Legal Documents, or any other agreement or document pursuant to which any of the AuthorityCity’s financial obligations were executed and delivered, and the Authority City shall not be in default in the payment of principal or interest with respect to any of its financial obligations, which default would materially result in any material adverse change to the financial condition of the City or adversely impact the its ability to make payment of the Authority to pay debt service principal or redemption price of and interest on the Bonds from Revenues.when due;
(d) In recognition of the desire of the Authority 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, the Underwriter shall have the right to cancel the Underwriter’s obligation to purchase the Bonds and to terminate this Purchase Agreement shall be subject to termination in the absolute discretion of the Underwriter by written notice notification, in writing, to the Authority ifCity prior to delivery of and payment for the Bonds, between the date of this Purchase Agreement if at any time prior to and including the Closing Datesuch time, in the Underwriter’s sole and reasonable judgment any of the following events shall occur regardless of whether any of the following events statements of fact were in existence or known of on the date 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 SEC or any other governmental authority having jurisdiction; or
(iv) any event shall occur which makes untrue any material statement or results in an omission to state a material fact necessary to make the statements in the 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
(iiv) 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 or the market price thereof, in the reasonable opinion of the Underwriter, has been materially adversely affected by an amendment to the Constitution of the United States of America or by any legislation in or by the Congress of the United States of America or by the State, or the amendment of legislation pending as of the date of this Purchase Agreement in the Congress of the United StatesStates of America, or 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 StatesStates of America, the Treasury Department of the United StatesStates 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 StatesStates 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, or any decision of any federal or state court or any ruling or regulation (final, temporary or proposed) or official statement on behalf of the United States Treasury Department, the Internal Revenue Service or other federal or State authority affecting the federal or State tax status of the Authority, or the interest on or with respect to bonds or notes (including the Bonds); or
(iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority 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
(ivvii) an order, decree or injunction shall have been issued by any court of competent jurisdiction, or order, ruling, regulation (final, temporary or proposed), 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 authority agency having jurisdiction of the subject matter, to the effect that: (i) obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Indenture Trust Agreement is not exempt from qualification under the Trust Indenture Act of 1939; or (ii) the issuance, offering or sale of obligations of the general character of the Bonds, or the issuance, offering or sale of the Bonds, including any or all underlying obligations, as amendedcontemplated 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; or
(viii) legislation shall be introduced, by amendment or otherwise, or be enacted by the House of Representatives or the Senate of the Congress of the United States of America, or a 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 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 provision of the Securities Act of 1933, as amended and as then in effect, or the Securities Exchange Act of 1934, as amended and as then in effect, or the Trust Indenture Act of 1939, as amended and as then in effect, or with the purpose or effect of 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
(x) a material disruption in securities settlement, 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 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 broker dealers; or
(xii) trading in securities on the New York Stock Exchange or 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
(xiii) any rating of the Bonds or the rating of any general fund obligations of the City shall have been downgraded or withdrawn by a national rating service, which, in the reasonable opinion of the Underwriter, materially adversely affects the market price of the Bonds; or
(xiv) 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
(xv) the commencement of any action, suit or proceeding described in Section 6(m).
(e) at or prior to the Closing, the Underwriter shall receive or have received the following documents, in each case to the reasonable satisfaction, in form and substance, of the Underwriter and Xxxxx Xxxx, A Professional Law Corporation, San Francisco, California (“Underwriter’s Counsel”):
(i) a copy of the default judgment, dated , 2021, entered in favor of the City in connection with City of Corona v.
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of the Authority contained herein. The obligation obligations of the Underwriter under this Purchase Contract have been undertaken in reliance on, and shall be subject to, the due performance by the District of its obligations and agreements to accept delivery be performed hereunder and, to the accuracy of and pay for compliance with the Bonds respective representations, warranties, covenants and agreements on the Closing Date shall be subject, at the option part of the UnderwriterDistrict 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 District and other officials of the AuthorityDistrict, as well as authorized representatives of Bond Counsel the Corporation and the Trustee made in the Certificate Documents or any Bonds certificates or other documents furnished pursuant to the provisions hereof; , and to the performance by the Authority District, 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; and . The obligations of the Underwriter hereunder are also subject, in the discretion of the Underwriter to the following additional conditions:
(a) The representations, warranties and covenants of the Authority contained herein shall be true and correct at the date hereof and at the time of the Closing, as if made on At the Closing Date.
(b) At the time of Closing, the Authority Certificates, the Certificate Documents shall be in full force and effect as valid and binding agreements between or among the various parties thereto, and the Authority Documents, and the Official Statement shall have been duly authorized, executed and delivered by the respective parties thereto, in substantially the forms heretofore submitted to the Underwriter with only such changes as shall have been agreed to by the Underwriter, and said documents shall not have been amended, modified or supplemented supplemented, except as may have been agreed to in writing by the Underwriter, and there shall have been taken in connection therewith, with the Authority Resolution execution and delivery of the Certificates and with the transactions contemplated thereby and by this Purchase Contract, all such actions as Special Counsel shall deem to be necessary and appropriate;
(b) The representations and warranties of the District contained in this Purchase Contract shall be true, correct and complete in full force all material respects on the date hereof and effect.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 District, in light of the circumstances under which such statements were made, not misleading;
(c) At the time of the Closing, no material default shall have occurred or be existing under the Authority Documents or any other agreement or document pursuant to which any of the Authority’s financial obligations were executed and delivered, and the Authority shall not be in default in the payment of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition of the desire of the Authority 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, the The Underwriter shall have the right to cancel the Underwriter’s its obligation to purchase the Bonds and to terminate this Purchase Agreement by written notice to the Authority Certificates if, between the date of this Purchase Agreement to Contract and including the Closing DateClosing, in the Underwriter’s sole and reasonable judgment any market price or marketability of the following events shall occur regardless of whether any of the following events were in existence Certificates, or known of on the date of this Purchase Agreement:
(i) any event shall occur which makes untrue any material statement or results in an omission to state a material fact necessary to make the statements in 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 enforce contracts for the Bonds; or
(ii) the marketability sale of the Bonds or the market price thereofCertificates, in the opinion evidenced judgement of the Underwriter, has have been materially adversely affected affected, by an amendment to the Constitution occurrence of any of the United States or following:
(1) legislation enacted by any legislation in or by the Congress of the United States or by the StateCongress, or the amendment of legislation pending as of the date of this Purchase Agreement in the Congress of the United States, or 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, the Treasury Department of the United States, 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 passed by either such Committee or by any member House 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, or the favorable reporting favorably reported for passage of legislation to either House of the Congress of the United States thereto by a any Committee of such House to which such legislation has been referred for consideration, or any by the legislature of the State, or introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court of any federal the United States or state court the State or any ruling by the United States Tax Court, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made:
(i) by or on behalf of the United States Treasury Department, or by or on behalf of the Internal Revenue Service (the “IRS”), with the purpose or other federal effect, directly or State authority affecting indirectly, of changing, directly or indirectly, the federal income tax consequences or State tax status consequences of the Authority, or the interest on or with respect to bonds the Certificates or notes (including of obligations of the Bonds)general character of the Certificates in the hands of the holders thereof; or
(iiiii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority 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
(iv) an order, decree or injunction issued by any court of competent jurisdiction, or order, ruling, regulation (final, temporary or proposed), official statement or other form of notice or communication issued or made by or on behalf of the Securities and Exchange CommissionCommission (the “SEC”), or any other governmental authority agency having jurisdiction of over the subject mattermatter thereof, to the effect that: (i) that the Certificates, or obligations of the general character of the Bonds, or the BondsCertificates, including any or and all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended;
(2) there shall have occurred (i) an outbreak or escalation of military hostilities or the declaration by the United States of a national emergency or war or (ii) any other calamity or crisis, or escalation thereof, that materially adversely affects the financial markets of the United States or elsewhere or the escalation of such calamity or crisis, or the Underwriter’s ability to enforce contracts in connection to the sale of the Certificates;
(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 declaration of a general banking moratorium by federal, New York or State authorities;
(5) the imposition by the New York Stock Exchange, other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Certificates, or obligations of the general character of the 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;
(6) an order, decree or injunction of any court of competent jurisdiction, or order, filing, regulation or official statement by the SEC, or any other governmental agency having jurisdiction over the subject matter thereof, issued or made to the effect that the Indenture issuance, offering or sale of obligations of the general character of the Certificates, or the issuance, offering or sale of the Certificates, 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) there shall have occurred or any notice shall have been given of any intended review, downgrading, suspension, withdrawal, or negative change in credit watch status by any national rating service to the outstanding indebtedness of the District (without regard to credit enhancement);
(8) the occurrence, since the date hereof, of any materially adverse change in the affairs or financial condition of the District;
(9) the suspension by the SEC of trading in the outstanding securities of the District;
(10) any state Blue Sky or securities commission, or other governmental agency or body, shall have withheld registration, exemption or clearance of the offering of the Certificates as described herein, or issued a stop order or similar ruling relating thereto; and
(11) the purchase of and payment for the Certificates by the Underwriter, or the resale of the Certificates by the Underwriter, on the terms and conditions herein provided shall be prohibited by any applicable law, governmental authority, board, agency or commission.
(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) the Official Statement and each Certificate Document, duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to by the Underwriter;
(2) an unqualified approving opinion, dated the Closing Date and addressed to the District, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, a Professional Corporation, San Francisco, California, Special Counsel, in substantially the form attached to the Official Statement as Appendix B, and a letter of such counsel, dated the Closing Date and addressed to the Underwriter, to the effect that such opinion may be relied upon by the Underwriter to the same extent as if such opinion were addressed to them;
(3) a supplemental opinion, dated the Closing Date and addressed to the District and the Underwriter, of Special Counsel, substantially to the effect that (A) this Purchase Contract and the Continuing Disclosure Certificate have been duly authorized, executed and delivered by the District and, assuming the due authorization, execution and delivery by the other parties thereto, are valid and binding agreements of the District enforceable in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights, by the application of equitable principles if equitable remedies are sought, by the exercise of judicial discretion in appropriate cases and by the limitations on legal remedies against public agencies in the State of California, (B) the Certificates are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Trust Agreement is exempt from qualification under the Trust Indenture Act of 1939, and amended, and (C) the statements contained in the Official Statement under the captions “INTRODUCTION,” “THE CERTIFICATES,” and “TAX MATTERS,” and in Appendix A to the Official Statement, insofar as amended; orsuch statements expressly purport to summarize certain provisions of the Certificates, the Certificate Documents and the form and content of Special Counsel’s approving opinion concerning the Certificates, are accurate in all material respects (provided that Special Counsel need not express any opinion regarding (i) any information contained in Appendices C, E and F to the Official Statement, (ii) financial or statistical data or forecasts, numbers, charts, tables, estimates, projections, assumptions or expressions of opinion contained in the Official Statement, including in any of the appendices thereto, (iii) information with respect to DTC or its book-entry only system included therein, (iv) any CUSIP numbers or information relating thereto, (v) the District’s compliance with its obligations to file annual reports or provide notice of the events described in Rule 15c2-12, (vi) any information with respect to the Underwriter or underwriting matters with respect to the Certificates, including but not limited to information under the caption “UNDERWRITING,” and
Appears in 1 contract
Samples: Purchase Contract
Conditions to the Obligations of the Underwriter. The Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of the Authority contained herein. The obligation of the Underwriter to accept delivery of and pay for the Initial Series 2005A Bonds on the Closing Date of Issuance 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 Company and the Issuer contained herein as of the date hereof and as of the Date of Issuance, to the accuracy in all material respects of the statements of the officers and other officials of the AuthorityTrustee, as well as authorized representatives of Bond Counsel the Bank, the Company and the Trustee Issuer made in any Bonds certificates or other documents furnished pursuant to the provisions hereof; , and to the performance by the Authority Company and the Issuer of its obligations their obligations, as applicable, to be performed hereunder at or prior to the Closing Date; Date of Issuance and to the following additional conditions:
(a) The representations, warranties and covenants On the Date of the Authority contained herein shall be true and correct at the date hereof and at the time of the Closing, as if made on the Closing Date.
(b) At the time of ClosingIssuance, the Authority Documents Initial Series 2005A Bonds, the Initial Series 2005B Bonds, the Indenture, the Lease Agreement, the Series 2005B Purchase Agreement, the Remarketing Agreement, the Credit Agreement and the Letter of Credit shall be in full force have been duly authorized, executed and effect as valid and binding agreements between or among delivered by the various respective parties thereto, and in substantially the Authority Documentsforms heretofore submitted to the Underwriter with any such changes as shall have been agreed to in writing by the Underwriter, and the Official Statement said agreements shall not have been amended, modified or supplemented supplemented, except as may have been agreed to in writing by the Underwriter, and there shall have been taken in connection therewith, with the Authority Resolution issuance of the Initial Series 2005A Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as Bond Counsel or Underwriter’s Counsel shall deem to be necessary and appropriate.
(b) The representations and warranties of each of the Company and the Issuer contained in this Bond Purchase Agreement shall be true, correct and complete in full force all material respects on the date hereof and effecton the Date of Issuance, as if made again on the Date of Issuance, 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 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, in the light of the circumstances under which such statements were made, not misleading.
(c) At the time of the Closing, no material default There shall have occurred no material adverse change in the condition (financial or be existing under the Authority Documents or any other agreement or document pursuant to which any otherwise) of the Authority’s financial obligations were executed and delivered, Company between the date hereof and the Authority shall not be in default in the payment Date of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from RevenuesIssuance.
(d) In recognition The Underwriter shall be paid the amount set forth in Section 4(a) on the Date of Issuance.
(e) At or prior to the desire Date of the Authority 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 offeringIssuance, the Underwriter shall have received the right following documents, in each case satisfactory in form, scope and substance to cancel the Underwriter’s obligation to purchase the Bonds and to terminate this Purchase Agreement by written notice to the Authority if, between the date of this Purchase Agreement to and including the Closing Date, in the Underwriter’s sole and reasonable judgment any of the following events shall occur regardless of whether any of the following events were in existence or known of on the date of this Purchase Agreement:
(i) copies of the Indenture, the Lease Agreement, the Series 2005B Purchase Agreement, the Remarketing Agreement, and the Credit 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, the Official Statement duly approved by the Issuer and the Company, and a copy of the Letter of Credit as executed by the Bank;
(ii) a final opinion of Bond Counsel, dated the Date of Issuance, in the form attached to the Official Statement, and a letter of Bond Counsel, dated the Date of Issuance and addressed to the Underwriter, the Trustee, the Bank and the Company, to the effect that its opinion addressed to the Issuer may be relied upon by such parties to the same extent as if such opinion were addressed to each of them;
(iii) an opinion of counsel to the Bank dated the Date of Issuance and addressed to the Issuer, the Company, the Rating Agency rating the Initial Series 2005A Bonds, the Trustee and the Underwriter to the effect that:
(1) the Bank is a national banking association, validly existing under the laws of the United States of America, and is empowered under such laws to issue the Letter of Credit and to take all actions required or permitted on its part to be taken, under the Letter of Credit;
(2) the Letter of Credit constitutes the legal, valid and binding obligation of the Bank, enforceable against the Bank in accordance with its terms, except (A) as limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting generally the enforcement of creditors’ rights and remedies generally; and (B) general principles of equity; and
(3) the Letter of Credit is exempt from the registration requirements of the 1933 Act;
(iv) one or more opinions of counsel to the Company, dated the Date of Issuance and addressed to the Issuer, the Bank, the Trustee and the Underwriter, to the effect, among other things, that:
(1) the Company is possessed of full power and authority to conduct its business as presently conducted and as contemplated to be conducted by the Company Documents;
(2) the Company is a corporation duly organized, validly existing and in good standing under the laws of the Commonwealth of Virginia and is duly qualified to do business in the State of New Mexico;
(3) the Company has full power and authority to execute and deliver the Company Documents; the Company Documents have been duly authorized, executed and delivered on its behalf and when executed by the other parties thereto will be the legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, moratorium or similar laws or by legal or equitable principles relating to or limiting creditors’ rights generally or public policy as to the enforcement of certain provisions, such as indemnification provisions;
(4) the execution and delivery of the Company Documents and compliance by the Company with the provisions thereof will not result in a violation of, a breach of, or a default under the articles of incorporation or bylaws of the Company or any event shall occur statute, indenture, mortgage, deed of trust, note agreement, other agreement or instrument to which makes the Company is a party or by which the Company or any of its property is bound, or any order, rule or regulation of any court or other governmental body having jurisdiction over the Company which breach might have a materially adverse effect on the ability of the Company to perform under the Company Documents;
(5) no authorization, approval, consent or order of any governmental agency or any other person or entity is required for the valid authorization, execution and delivery of the Company Documents on behalf of the Company that has not been obtained except that no opinion will be rendered by it concerning Blue Sky compliance or federal securities law registration exemption;
(6) to the best of counsel to the Company’s knowledge, there is no action, suit, proceeding, inquiry or investigation by or before any court, governmental agency, public board or body pending or threatened against or affecting the Company which, if determined adversely to it, would have a material adverse effect upon the consummation of the transactions contemplated by the Company Documents or the financial condition or assets of the Company; and
(7) to the best of counsel to the Company’s knowledge, the information contained in the Official Statement describing the Company, the use of the proceeds of the Bonds and the Project is true and correct in all material respects, and such information does not contain any untrue any or misleading statement of material statement fact or results in an omission omit to state a material fact necessary to make the statements in the Official Statementtherein, in the light of the circumstances under which they were made, not misleading, which event, in the reasonable opinion ;
(v) a certificate of the Underwriter would materially or adversely affect Company dated the ability Date of Issuance, signed by the Company, confirming the representations set forth in Section 6 hereof as if given on the Date of Issuance;
(vi) a certificate of the Underwriter to market Trustee dated the Bonds; or
(ii) the marketability Date of Issuance, signed by a duly authorized officer of the Bonds or the market price thereof, in the opinion of the Underwriter, has been materially adversely affected by an amendment to the Constitution of the United States or by any legislation in or by the Congress of the United States or by the State, or the amendment of legislation pending as of the date of this Purchase Agreement in the Congress of the United States, or 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, the Treasury Department of the United States, 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, or the favorable reporting for passage of legislation to either House of the Congress of the United States by a Committee of such House to which such legislation has been referred for consideration, or any decision of any federal or state court or any ruling or regulation (final, temporary or proposed) or official statement on behalf of the United States Treasury Department, the Internal Revenue Service or other federal or State authority affecting the federal or State tax status of the Authority, or the interest on or with respect to bonds or notes (including the Bonds); or
(iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority 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
(iv) an order, decree or injunction issued by any court of competent jurisdiction, or order, ruling, regulation (final, temporary or proposed), 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 authority having jurisdiction of the subject matterTrustee, to the effect that: :
(1) such officer is a duly authorized officer of the Trustee;
(2) the Trustee is a national banking association duly organized, validly existing and in good standing under the laws of the United States of America, is authorized to carry out corporate trust powers in the State of New Mexico and has all necessary power and authority to enter into and perform its duties under the Indenture and upon the execution and delivery thereof by the Trustee, the Indenture shall constitute a legally valid and binding obligation of the Trustee, enforceable in accordance with its terms;
(3) the duties and obligations of the Trustee under the Indenture have been duly accepted by the Trustee;
(4) the Trustee is duly authorized to authenticate and deliver the Series 2005A Bonds to the Underwriter under instruction by the Issuer pursuant to the terms of the Indenture;
(5) to the best knowledge of such officer, the acceptance by the Trustee of the duties and obligations under the Indenture and the execution and delivery of the Indenture and compliance with the provisions thereof, will not conflict with, or constitute a breach of or default under, any law, administrative regulation, court decree, resolution, charter, bylaw or other agreement to which the Trustee is subject or by which it is bound;
(6) the representations and warranties of the Trustee in the Indenture are true, complete and correct in all material respects as of the Date of Issuance; and
(7) the Initial Bonds have been validly authenticated, registered and delivered by the Trustee;
(vii) a certificate of the Issuer, dated the Date of Issuance, signed by such officer as is acceptable to the Underwriter, to the effect that the representations of the Issuer contained in this Bond Purchase Agreement are true and correct in all material respects as of the Date of Issuance;
(viii) a certificate of the Bank, dated the Date of Issuance, signed by an authorized representative of the Bank to the effect that:
(1) all conditions precedent to the issuance of the Letter of Credit, including those specified in the Credit Agreement, have been satisfied or have been waived;
(2) to the actual knowledge of such authorized representative of the Bank, there is no action, suit, litigation, proceeding, inquiry or investigation at law or in equity or by or before any judicial or administrative court, agency, body or other entity, pending or threatened against the Bank or any of its properties, where an unfavorable decision, ruling or finding (i) obligations would adversely affect the validity or enforceability of the general character Letter of Credit or (ii) would otherwise adversely affect the legal ability of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration Bank to comply with its obligations under the Securities Act Letter of 1933Credit; and
(3) the information contained in the Official Statement describing the Bank is true and correct in all material respects;
(ix) an opinion of Underwriter’s Counsel dated the Date of Issuance and addressed to the Issuer, the Trustee, the Bank, the Underwriter and the Company substantially in the form of Exhibit B hereto;
(x) an opinion of Underwriter’s Counsel dated the Date of Issuance and addressed to the Underwriter substantially in the form of Exhibit C hereto;
(xi) evidence satisfactory to the Underwriter to the effect that the Initial Series 2005A Bonds have received a rating of “AA/A-1+” or better from Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., which rating remains in effect on the Date of Issuance;
(xii) evidence satisfactory to the Underwriter that the Series 2005B Bond Purchaser has purchased $17,975,000 aggregate principal amount of Initial Series 2005B Bonds for its own account on the Initial Closing Date; and
(xiii) such additional legal opinions, certificates, proceedings, instruments and other documents as the Underwriter, Bond Counsel or Underwriter’s Counsel may reasonably request to evidence compliance by the Issuer, the Company, the Bank and the Trustee with legal requirements, the truth and accuracy, as amendedof the Date of Issuance, of the representations of the Issuer, the Company, the Bank and the Trustee, and the due performance or that satisfaction by the Indenture is not exempt from qualification under Issuer, the Trust Indenture Act Company, the Bank and the Trustee at or prior to such time of 1939all agreements then to be performed and all conditions then to be satisfied by the Issuer, as amended; orthe Company, the Bank and the Trustee.
Appears in 1 contract
Samples: Bond Purchase Agreement (Tempur Pedic International Inc)
Conditions to the Obligations of the Underwriter. The Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of the Authority contained herein. 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 Successor Agency 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 Authority, as well as authorized representatives of Bond Counsel and the Trustee Successor Agency made in any Bonds certificates or other documents furnished pursuant to the provisions hereof; , and to the performance by the Authority Successor Agency of its obligations to be performed hereunder at or prior to the Closing Date; Date and to the following additional conditions:
(a) The representations, warranties and covenants of the Authority contained herein shall be true and correct at the date hereof and at the time of the Closing, as if made on At the Closing Date.
(b) At the time of Closing, the Authority Documents Official Statement, the Indenture, the Escrow Agreement, this Bond Purchase Agreement and the Disclosure Certificate shall be in full force and effect in the form heretofore submitted to the Underwriter, with only such changes as valid and binding agreements between or among shall be agreed to in writing by the various parties theretoUnderwriter, and there shall have been taken in connection with the Authority Documentsissuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of Bond Counsel, shall be necessary and appropriate;
(b) At the Closing Date, the Official Statement, the Indenture, the Escrow Agreement, this Bond Purchase Agreement and the Official Statement Disclosure Certificate shall not have been amended, modified or supplemented supplemented, except as may have been agreed to in writing by the Underwriter, and the Authority Resolution shall be in full force and effect.;
(c) At the time of the Closing, no material default shall have occurred or be existing under the Authority Documents or any other agreement or document pursuant to which any of the Authority’s financial obligations were executed and delivered, and the Authority shall not be in default in the payment of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition of the desire of the Authority 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, the Underwriter shall have the right to cancel the Underwriter’s obligation to purchase the Bonds and to terminate this Purchase Agreement by written notice to the Authority if, between Between the date of this Purchase Agreement to hereof and including the Closing Date, in the Underwriter’s sole and reasonable judgment any of market price or marketability, at the following events shall occur regardless of whether any of the following events were in existence or known of on the date of this Purchase Agreement:
(i) any event shall occur which makes untrue any material statement or results in an omission to state a material fact necessary to make the statements initial public offering prices set forth in the Official Statement, in the light of the circumstances under which they were made, Bonds shall not misleading, which eventhave been materially adversely affected, in the reasonable opinion judgment of the Underwriter would materially or adversely affect (evidenced by a written notice to the ability Successor Agency terminating the obligation of the Underwriter to market accept delivery of and make any payment for the Bonds; or), by reason of any of the following:
(ii1) the marketability of the Bonds or the market price thereof, in the opinion of the Underwriter, has been materially adversely affected by an amendment to the Constitution of the United States or by any 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 by the State, legislature of any state having jurisdiction of the subject matter or the amendment of legislation pending as of the date of this Purchase Agreement in the Congress of the United States, States shall have been amended or legislation shall have been recommended to the recommendation Congress of the United States or to Congress any state having jurisdiction of the subject matter or endorsement otherwise endorsed for passage (by press release, other form of notice or otherwise) of legislation by the President of the United States, the Treasury Department of the United States, 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 legislation shall have been proposed for consideration of legislation by either such Committee or by any member thereof, thereof or the presentment of legislation for consideration presented as an option for consideration by either such Committee, 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 the favorable reporting legislation shall have been favorably reported for passage of legislation to either House of the Congress of the 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 or of the State of California or the Tax Court of the United States, or a ruling shall have been made or a regulation or temporary regulation shall have been proposed or made or any decision other release or announcement shall have been made by the Treasury Department of any the United States, the Internal Revenue Service or other federal or state court State of California authority, with respect to federal or State of California taxation upon revenues or other income of the general character to be derived by the Authority or upon interest received on obligations of the general character of the Bonds which may have the purpose or effect, directly or indirectly, of affecting the tax status of the Authority, its property or income, its securities (including the Bonds) or the interest thereon, or any ruling tax exemption granted or authorized by State of California legislation or materially and adversely affecting the market for the Bonds or the market price generally of obligations of the general character of the Bonds;
(2) legislation 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 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 on behalf of the United States Treasury Department, the Internal Revenue Service or other federal or State authority affecting the federal or State tax status of the Authority, or the interest on or with respect to bonds or notes (including the Bonds); or
(iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority 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
(iv) an order, decree or injunction issued by any court of competent jurisdiction, or order, ruling, regulation (final, temporary or proposed), 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 authority agency having jurisdiction of the subject matter, matter shall have been made or issued to the effect that: (i) that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended; or;
(3) any legislation, ordinance, rule or regulation shall be introduced in, or be enacted by any governmental body, department or agency of the State of California, or a decision by any court of competent jurisdiction within the State of California or any court of the United States of America shall be rendered which, in the reasonable opinion of the Underwriter, materially adversely affects the market price of the Bonds;
(4) the escalation in military hostilities or declaration by the United States of a national emergency or war, or other calamity or crisis or escalation thereof;
(5) 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;
(6) 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;
(7) 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 Bonds, or the issuance, offering or sale of the 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;
(8) any litigation shall be instituted, pending or threatened to restrain or enjoin the issuance or sale of the Bonds or in any way contesting the validity of the Bonds or the Financing Documents, or the existence or powers of the Successor Agency;
(9) any event occurring, or information becoming known that, in the 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;
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of the Authority contained herein. The obligation obligations of the Underwriter under this Bond Purchase Contract have been undertaken in reliance on, and shall be subject to, the due performance by the parties hereto of their respective obligations and agreements to be performed hereunder, and on and as of the date of delivery of this Bond Purchase Contract and on and as of the Closing Date. The obligations of the Underwriter hereunder to accept delivery of and pay for the Bonds on at the Closing Date shall be are also subject, at in the option discretion of the Underwriter, to the accuracy in all material respects of the statements of the officers and other officials of the Authority, as well as authorized representatives of Bond Counsel and the Trustee made in any Bonds or other documents furnished pursuant to the provisions hereof; to the performance by the Authority of its obligations to be performed hereunder at or prior to the Closing Date; and to the following additional further conditions:
(a) The representations, warranties and covenants of the Authority contained herein shall be true and correct at the date hereof and at At the time of the Closing, as if made on (i) the Closing Date.
(b) At Bond Resolution and the time of Closing, the Authority Documents Financing Agreements shall be in full force and effect and shall not have been rescinded, amended, modified or supplemented, except as valid and binding agreements between or among may have been agreed to by the various parties theretoUnderwriter, and the Authority DocumentsDistrict shall have adopted or executed and delivered, as the case may be, and there shall be in full force and effect such additional resolutions, agreements, opinions and certificates, which resolutions, agreements, opinions and certificates shall be reasonably satisfactory in form and substance to the Underwriter, and there shall have been taken in connection therewith and in connection with the issuance of the Bonds all such action as shall, in the opinion of the Underwriter, be necessary in connection with the transactions contemplated hereby, (ii) the Bonds shall have been duly issued, authenticated and delivered, (iii) the Preliminary Official Statement and Official Statement shall not have been amended, modified or supplemented supplemented, except as may have been agreed to in writing by the Underwriter, and (iv) the Authority Resolution District shall perform or have performed all of its obligations under or specified in the Financing Agreements to be in full force and effectperformed by the District at or prior to the Closing.
(cb) At On the time Closing Date, there shall be delivered to the Underwriter in form satisfactory to the Underwriter:
(1) Executed counterparts of the ClosingFinancing Agreements, no material default shall have occurred or be existing under the Authority Documents or any other agreement or document pursuant to which any certified copies of the Authority’s financial obligations were executed and deliveredBond Resolution, and the Authority shall not be in default in the payment of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition of the desire of the Authority such other documents and certificates as the Underwriter may reasonably require in order to effect a successful public offering of evidence the Bonds, and in view of the potential adverse impact accuracy or satisfaction of any of the following events representations, warranties or conditions herein contained.
(2) An approving opinion of Bond Counsel, substantially in the form attached as Appendix C to the Official Statement, and a letter from Bond Counsel addressed to the Underwriter expressly permitting the Underwriter to rely on such a public offering, final approving opinion as if the Underwriter shall have the right to cancel the Underwriter’s obligation to purchase the Bonds and to terminate this Purchase Agreement by written notice to the Authority if, between the date was an addressee thereof.
(3) A supplemental opinion of this Purchase Agreement to and including Bond Counsel dated the Closing Date, in addressed to the Underwriter’s sole and reasonable judgment any of , to the following events shall occur regardless of whether any of the following events were in existence or known of on the date of this Purchase Agreementeffect that:
(i) The District has duly and validly executed the Bond Purchase Contract, and the Bond Purchase Contract constitutes the legal, valid and binding agreement of the District, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors’ rights heretofore or hereafter enacted and to the exercise of judicial discretion in appropriate cases.
(ii) The Bonds are exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), and the Indenture is exempt from qualification under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
(iii) The statements contained in the Official Statement under the captions “THE BONDS” (other than the information relating to the book-entry only system), “SECURITY FOR THE BONDS,” “TAX MATTERS” and in APPENDIX B - “Summary of Certain Provisions of the Indenture,” and in APPENDIX C - “Form of Bond Counsel Opinion,” insofar as such statements purport to summarize certain provisions of the Bonds, the Indenture and the opinion of Bond Counsel are accurate in all material respects.
(4) A letter of Xxxxx Xxxx, A Professional Law Corporation, San Francisco, California (“Disclosure Counsel”), addressed to the Underwriter and dated the Closing Date, to the effect that no information came to the attention of the attorneys in such firm rendering legal services which caused such firm to believe that the Official Statement as of its date (except for any event shall occur financial or statistical or engineering data or forecasts, numbers, charts, estimates, projections, assumptions or expressions of opinion or any information about book- entry or DTC included therein, as to which makes no opinion or view need be expressed) contained any untrue any material statement or results in an omission to state of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements in the Official Statementtherein, in the light of the circumstances under which they were made, not misleading.
(5) A certificate, which eventdated the Closing Date, signed by an authorized official of the District, and in form and substance satisfactory to the Underwriter, to the effect that:
(i) Except as described in the reasonable opinion Official Statement, there is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending or, to the best knowledge of the Underwriter District based on reasonable inquiry, threatened against or affecting the District wherein an unfavorable decision, ruling or finding would materially or adversely affect the validity or enforceability of, or the authority or ability of the Underwriter District to market perform its obligations under, any of the Financing Agreements or the transactions contemplated to be performed by it as described in the Official Statement, or which would restrain or enjoin the sale, execution or delivery of the Bonds or in any way contest or affect the validity of the Bonds; or, the proceedings of the District taken with respect to the issuance, delivery or sale thereof, the pledge or application of any moneys or securities provided for the payment of the Bonds and the existence or powers of the District or the title of any officers of the District to their respective positions.
(ii) the marketability The representations and warranties of the Bonds District contained in this Bond Purchase Contract are true and correct in all material respects on and as of the Closing Date.
(iii) The District has complied, or is presently in compliance, with all agreements and has satisfied all conditions on its part to be observed or satisfied under the market price thereofFinancing Agreements at or prior to the Closing Date.
(iv) The information and statements in the Official Statement (except with respect to DTC and the book-entry system) do not contain any untrue 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.
(6) An opinion of the Underwriter, has been materially adversely affected by an amendment general counsel to the District, dated the Closing Date, to the effect that:
(i) The District is a county water district duly organized and validly existing under the Constitution and the laws of the United States State of California.
(ii) The District has full legal power and lawful authority to enter into the Financing Agreements.
(iii) The Financing Agreements have been duly authorized, executed and delivered by the District and constitute the legal, valid and binding agreements of the District enforceable against the District 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 limiting creditors’ rights generally.
(iv) The Bond Resolution, approving and authorizing the execution and delivery of the Financing Agreements and approving the Official Statement, was duly adopted at a meeting of the Board of Directors called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout and the Bond Resolution is in full force and effect and has not been modified, amended or rescinded.
(v) The execution and delivery of the Financing Agreements and compliance with the provisions thereof, under the circumstances contemplated thereby, do not and will not in any material respect conflict with, or constitute on the part of the District a breach of or default under, any agreement or other instrument to which the District is a party or by which it is bound or any legislation in existing law, regulation, court order or consent decree to which the District is subject.
(vi) No additional authorization, approval, consent, waiver or any other action by the Congress of the United States any person, board or by the Statebody, public or the amendment of legislation pending private, not previously obtained is required as of the date of this Purchase Agreement the Closing for the District to enter into the Financing Agreements, or to perform its obligations thereunder.
(vii) Except as otherwise disclosed in the Congress Official Statement, there is no litigation, proceeding, action, suit, or investigation at law or in equity before or by any court, governmental agency or body, pending or, to the best knowledge of such counsel after due investigation, threatened against the District, challenging the creation, organization or existence of the United StatesDistrict, or the recommendation to Congress or endorsement for passage (by press release, other form of notice or otherwise) of legislation by the President validity of the United States, Financing Agreements or seeking to restrain or enjoin the Treasury Department District’s obligations under the Financing Agreements or in any way contesting or affecting the validity of the United StatesFinancing Agreements or any of the transactions referred to therein or contemplated thereby or contesting the authority of the District to enter into or perform its obligations under any of the Financing Agreements, or under which a determination adverse to the Internal Revenue Service District would have a material adverse effect upon the financial condition or the Chairman or ranking minority member revenues of the Committee on Finance District, or which, in any manner, questions or affects the right or ability of the United States Senate District to enter into the Financing Agreements or affects in any manner the Committee on Ways and Means right or ability of the United States House of RepresentativesDistrict to pay debt service on the Bonds.
(viii) Except as otherwise disclosed in the Official Statement, there is no litigation, proceeding, action, suit, or the proposal for consideration of legislation by either such Committee investigation at law or in equity before or by any member thereofcourt, governmental agency or body, pending or, to the best knowledge of such counsel after due investigation, threatened against the District, challenging the creation, organization or existence of either, or under which a determination adverse to either would have a material adverse effect upon the presentment financial condition of legislation for consideration as an option by either such Committee, or by the staff operation of the Joint Committee on Taxation facilities thereof.
(ix) Nothing has come to the attention of such counsel which would lead it to believe that the Official Statement (excluding therefrom the financial and statistical data and forecasts included therein and information about the Insurer and DTC, as to which no opinion need be expressed) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the Congress of the United Statescircumstances under which they were made, or the favorable reporting for passage of legislation to either House of the Congress of the United States by a Committee of such House to which such legislation has been referred for consideration, or any decision of any federal or state court or any ruling or regulation (final, temporary or proposed) or official statement on behalf of the United States Treasury Department, the Internal Revenue Service or other federal or State authority affecting the federal or State tax status of the Authority, or the interest on or with respect to bonds or notes (including the Bonds); ornot misleading.
(iii7) any legislationAn opinion of counsel to the Trustee, ordinance, rule or regulation shall be enacted by any governmental body, department or authority of dated 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
(iv) an order, decree or injunction issued by any court of competent jurisdiction, or order, ruling, regulation (final, temporary or proposed), 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 authority having jurisdiction of the subject matterClosing Date, to the effect that: :
(i) The Trustee is a national banking association duly organized and existing under the laws of the United States of America and has duly authorized, executed and delivered the Indenture and by all proper action has authorized acceptance of the trusts created thereunder.
(ii) The Indenture constitutes a legally valid and binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws or equitable principles relating to or limiting creditors’ rights generally.
(iii) The Bonds have been validly authenticated by the Trustee.
(iv) The Trustee has duly authorized, executed and delivered the Indenture and by all proper action has authorized acceptance of the trusts created thereunder.
(8) An executed copy of a nonarbitrage certificate in form and substance satisfactory to Bond Counsel, together with a copy of the completed and executed IRS Form 8038-G.
(9) A certificate dated the Closing Date and signed by the Trustee or its designee, in form and substance satisfactory to the Underwriter to the effect that:
(i) The Trustee has all necessary power and authority to enter into, and perform its duties and accepts the trusts created under, the Indenture.
(ii) The Trustee is duly authorized to enter into the Indenture and to authenticate the Bonds pursuant to the terms of the Indenture.
(iii) The Bonds have been duly authenticated and delivered by the Trustee to the Underwriter pursuant to the direction from the District.
(iv) The Trustee is not in breach of or default under any law or administrative rule or regulation of the State of California or the United States of America, or of any department, division, agency or instrumentality thereof, or any applicable court or administrative decree or order, or any other instrument to which the Trustee is a party or is otherwise subject or bound and which would materially impair the ability of the Trustee to perform its obligations under the Indenture.
(v) To the best of the Trustee’s knowledge, the execution and delivery of the Indenture and the authentication of the Bonds will not conflict with or constitute a breach of or default under the Trustee’s duties under any law, administrative regulation, court decree, resolution, charter or bylaws to which the Trustee is subject or by which it is bound.
(10) Written evidence satisfactory to the Underwriter that the ratings described in the Official Statement shall be in effect on and as of the Closing Date.
(c) If the conditions to the obligations of the general character Underwriter contained in this Bond Purchase Contract shall not be satisfied, unless otherwise waived by the Underwriter, this Bond Purchase Contract shall terminate with the effect stated in paragraph (c) of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended; orSection 5 hereof.
Appears in 1 contract
Samples: Bond Purchase Contract
Conditions to the Obligations of the Underwriter. The Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of the Authority contained herein. 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 and warranties on the part of the Community Facilities District contained herein, to the accuracy in all material respects of the statements of the officers and other officials of the Authority, as well as authorized representatives of Bond Counsel and the Trustee Community Facilities District made in any Bonds certificates or other documents furnished pursuant to the provisions hereof; , to the performance by the Authority Community Facilities District of its their obligations to be performed hereunder at or prior to the Closing 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) The representations, warranties and covenants of the Authority contained herein shall be true and correct at the date hereof and at the time of the Closing, as if made on A. At the Closing Date.
(b) At the time of Closing, the Authority Community Facilities District Resolutions and the Community Facilities District Documents shall be in full force and effect as valid and binding agreements between or among the various parties theretoeffect, and the Authority Documents, and the Official Statement shall not have been amended, modified or supplemented supplemented, except as may have been agreed to in writing by the Underwriter, and there shall have been taken in connection therewith, with the Authority Resolution shall be in full force and effect.
(c) At the time issuance of the Closing, no material default shall have occurred or be existing under the Authority Documents or any other agreement or document pursuant to which any of the Authority’s financial obligations were executed Bonds and delivered, and the Authority shall not be in default in the payment of principal or interest with respect to any of its financial obligations, which default would materially adversely impact the ability of the Authority to pay debt service on the Bonds from Revenues.
(d) In recognition of the desire of the Authority and the Underwriter to effect a successful public offering of the Bonds, and in view of with the potential adverse impact of any of the following events on such a public offeringtransactions contemplated thereby, the Underwriter shall have the right to cancel the Underwriter’s obligation to purchase the Bonds and to terminate by this Purchase Agreement by written notice to Agreement, all such actions as, in the Authority ifopinion of Bond Counsel, between the date of this Purchase Agreement to shall be necessary and including appropriate.
B. At the Closing Date, except as described in the Underwriter’s sole 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 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 reasonable judgment 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, 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 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 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 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 Community Facilities District Documents, and any other instruments contemplated by any of such documents, and compliance with the following events shall occur regardless provisions of whether any each thereof, or the performance of the following events were 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 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 existence any manner which would materially and adversely affect the performance by the Community Facilities District of its obligations under the Community Facilities District Documents or known the performance of on 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 this Purchase Agreement:
(i) any event shall occur which makes 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 any statement of a material statement fact or results in an omission omit to state a material fact required to be stated therein or necessary to make the statements in the Official Statementtherein, in the light of the circumstances under which they were made, not misleading.
E. Between the date hereof and the Closing Date, which eventthe market price or marketability, in at the reasonable opinion initial offering prices set forth on the cover page of the Underwriter would materially Official Statement, of the Bonds or adversely affect the ability of the Underwriter to market enforce contracts for the sale of the Bonds; or
(ii) the marketability of the Bonds or the market price thereof, shall not have been materially adversely affected, in the opinion reasonable judgment of the Underwriter, has been materially adversely affected Underwriter (evidenced by an amendment a written notice to the Constitution Community Facilities District terminating the obligation of the United States or Underwriter to accept delivery of and pay for the Bonds), by reason of any legislation of the following:
1. Legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or by the State, or the amendment of legislation pending as of the date of this Purchase Agreement in recommended to the Congress of the United States, or 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, the Treasury Department of the United StatesTreasury, the Internal Revenue Service Service, or the Chairman or ranking minority any member of the Committee on Finance of the United States Senate or the Committee on Ways and Means of the United States House of RepresentativesCongress, 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, or the favorable reporting favorably reported for passage of legislation to either House of the Congress of the United States by a Committee any committee of such House to which such legislation has had been referred for consideration, or any a decision rendered by a court established under Article III of any federal the Constitution of the United States of America or state court by the Tax Court of the United States of America, or any ruling or an order, ruling, regulation (final, temporary or proposed) ), press release or official statement other form of notice issued or made by or on behalf of the Treasury Department of the United States Treasury Department, of America or the Internal Revenue Service Service, with the purpose or other effect, directly or indirectly, of imposing federal or State authority affecting the federal or State tax status income taxation upon such interest as would be received by any owners of the Authority, or Bonds beyond the extent to which such interest on or with respect is subject to bonds or notes (including the Bonds); or
(iii) any legislation, ordinance, rule or regulation shall be enacted by any governmental body, department or authority taxation as of the State, date hereof;
2. Legislation introduced in or a decision enacted (or resolution passed) by any court of competent jurisdiction within the State shall be rendered which materially adversely affects the market price of the Bonds; or
(iv) Congress or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), official statement press release or other form of notice or communication issued or made by or on behalf of the Securities and Exchange CommissionCommission (“SEC”), or any other governmental authority agency having jurisdiction of the subject matter, to the effect that: (i) that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under or other requirements of the 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.
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. The Official Statement, executed on behalf of the Community Facilities District by an authorized officer;
2. The Community Facilities District Documents, 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;
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 opinion for the Bonds, dated the Closing Date and 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, 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 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;
5. A supplemental opinion or opinions of Bond Counsel dated the Closing Date and addressed to the Underwriter to the effect that:
(i) this Purchase Agreement 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 other parties thereto, constitute the valid and binding obligations of the 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 judicial discretion in accordance with general principles of equity or otherwise in appropriate cases and by limitations on legal remedies against public agencies in the State;
(ii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification under the Trust Indenture Act of 1939, as amended; orand
(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.
6. A letter, dated the Closing Date and addressed to the Underwriter, of Disclosure Counsel, to the effect that such counsel is not passing upon and has not undertaken to determine independently or to verify the accuracy or completeness of the statements contained in the Preliminary Official Statement or in the Official Statement, and is, therefore, unable to make 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 value as of February 9, 2024 (the “Appraisal Report”), prepared by Xxxxx Xxxxx & Associates, Inc. (the “Appraiser”), Empire Economics, Inc., Special District Financing & Administration, LLC (the “Special Tax Consultant”), the Municipal Advisor, representatives of the Underwriter and others, during which conferences the content of the Preliminary Official Statement and 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 attorneys in the firm working on such matter which has led them to believe that the Prelimi
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Samples: Bond Purchase Agreement