Representations, Warranties and Agreements of the Authority. For purposes of this Section 6, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof. (a) the Authority is a joint exercise of powers authority duly organized and validly existing under and pursuant to the laws of the State, with full legal right, power and authority to issue, sell and deliver the Bonds to the Underwriters pursuant to the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase Agreement, the Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate executed by the Authority and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each of the aforesaid documents and the Preliminary Official Statement and the Official Statement, and compliance with the provisions of the Bonds and the Legal Documents will not materially conflict with or constitute a breach of or default under any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject; (b) the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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and at which a quorum was present and acting throughout, and is in full force and effect and has not been amended or repealed; (c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture; (d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally; (e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing; (f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect; (g) the Authority will comply with the requirements of the Tax Certificate; (h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same; (i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds; (j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests; (k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading; (l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading; (m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds; (n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents; (o) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o); (p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and (q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bonds.
Appears in 2 contracts
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority represents, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.warrants, and agrees that:
(a) The Authority is a public body corporate and politic created and existing under the Act and, unless otherwise required by law, shall maintain its corporate existence so long as any Bonds are Outstanding. Under the provisions of the Act, the Authority is a joint exercise authorized to enter into and carry out the transactions contemplated by this Contract and the Resolution;
(b) The Authority and the City heretofore have agreed that the Authority will provide financing and services for the undertakings described in the preamble to this Contract by the issuance of powers authority duly organized and validly existing under and pursuant the Bonds as set forth in the Resolution;
(c) There is no litigation or proceeding pending, or to the laws knowledge of the StateAuthority threatened, against the Authority or against any other party which would have a material adverse effect on the right of the Authority to execute this Contract or the ability of the Authority to comply with full legal right, power and authority to issue, sell and deliver the Bonds to the Underwriters pursuant to the Indenture, and execute, deliver and perform any of its obligations, as the case may be, obligations under this Bond Purchase Agreement, the Bonds, the Site Leasethis Contract, the Facility LeaseResolution, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate or any other documents contemplated to be executed by the Authority in connection with the issuance and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each delivery of the aforesaid documents and Bonds;
(d) This Contract, upon execution of the Preliminary Official Statement and same, will constitute the Official Statementlegal, valid, and compliance binding obligation of the Authority in accordance with its terms, and performance by the Authority of its obligations hereunder will not violate, or result in a breach of any of the provisions of the Bonds and the Legal Documents will not materially conflict with of, or constitute a breach of or default under under, any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by which the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generallybound;
(e) at The Authority has not made, done, executed, or suffered, and warrants that it will not make, do, execute, or suffer any act or thing whereby any title to or interest the date hereof and as of Authority may have in the Closing Date, Project will or may be impaired or encumbered in any manner except as otherwise disclosed permitted herein and the Resolution; and
(f) Except as herein and in the Preliminary Official Statement and the Official StatementResolution provided, the Authority will be in compliance with the covenants and agreements contained not encumber any part of its interest in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time Project or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute Revenues described herein or its rights under this Contract. The pledge made in the Resolution of the Revenues payable under this Contract constitutes a condition precedent to the due performance first and prior pledge of and lien on said Revenues and said pledge shall at no time be impaired by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will Revenues shall not otherwise be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;
(o) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bondspledged.
Appears in 2 contracts
Samples: Intergovernmental Contract, Intergovernmental Contract
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6, “The Authority represents and warrants to and agrees with the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.Underwriter that:
(a) The Authority is, and will be at the Authority is a joint exercise of powers authority Closing Date, duly organized and validly existing under and pursuant to the laws of the StateState of California as a joint powers authority, with has the full legal right, power and authority to issueissue the Bonds, sell and deliver to adopt the Bonds Authority Resolution, to the Underwriters pursuant to enter into the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase Agreement, the BondsLease, the Site Lease, and this Purchase Contract and to perform its obligations under the Facility Indenture, the Lease, the Site Lease, and this Purchase Contract, and when executed and delivered by the respective parties thereto, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate executed by the Authority and the City (the “Tax Certificate” and collectively with this Bond Purchase AgreementLease, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each of the aforesaid documents and the Preliminary Official Statement and the Official Statement, and compliance with the provisions of the Bonds and the Legal Documents will not materially conflict with or constitute a breach of or default under any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and Contract will constitute the valid and binding limited obligations of the Authority in conformity withlegal, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium or and other similar laws or equitable principles relating related to or affecting creditors’ rights generallygenerally and to the application of equitable principles as the court having jurisdiction may impose, regardless of whether such proceeding is considered a proceeding in equity or law, to the exercise of judicial discretion in appropriate cases, and to the limitations on legal remedies against governmental entities in the State of California and by matters of public policy;
(eb) When delivered to and paid for by the Underwriter at the date hereof Closing in accordance with the provisions of this Purchase Contract and as assuming proper authentication by the Trustee by the manual signature of an authorized officer thereof, the Bonds will have been duly authorized, executed, issued, and delivered and will constitute valid and binding limited obligations of the Closing DateAuthority, except as otherwise disclosed enforceable in accordance with their terms and entitled to the benefit and security of the Indenture;
(c) By official action of the Authority prior to or concurrently with the acceptance hereof, the Authority has authorized and approved the distribution of the Preliminary Official Statement Statement, authorized and approved the distribution of the Official Statement, and authorized and approved the Authority will be in compliance with the covenants execution and agreements contained in the Legal Documentsdelivery of, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of of, the obligations on its obligations under part contained in, the Bonds Bonds, the Indenture, the Lease, the Site Lease, and this Purchase Contract, and the Legal Documents have been duly obtained or made, consummation by the Authority of all other transactions on its part contemplated by the Official Statement and are, and will be as of the Closing Date, in full force and effectthis Purchase Contract;
(gd) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, pending (with service of process against the Authority will comply with having been accomplished) or known to the requirements Authority to be threatened against the Authority, seeking to restrain or enjoin the issuance, sale, execution or delivery of the Tax Certificate;
(h) Bonds, or in any certificate signed by way contesting or affecting any officer proceedings of the Authority and delivered to taken concerning the Underwriters pursuant to issuance or sale thereof, the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by adoption of the Authority to Resolution, the Underwriters as to pledge or application of any moneys or security provided for the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge payment of the AuthorityBonds, as or in any way contesting the validity or enforceability of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposedBonds, the results Indenture, the Lease, the Site Lease, or this Purchase Contract, or contesting in any way the completeness or accuracy of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement Statement, as amended or supplemented, or the validity existence or enforceability powers of the Authority relating to the issuance of the Bonds;
(je) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as As of the date of the Preliminary Official Statement thereof and as of the date hereof, was the statements and is true information contained in the Preliminary Official Statement entitled “INTRODUCTION,” insofar as such statements pertain to the Authority, and “THE AUTHORITY,” and the statements and information in the Official Statement entitled “INTRODUCTION,” insofar as such statements pertain to the Authority, and “THE AUTHORITY” were and will be true, correct and complete in all material respects, and did not and does will not contain any untrue statement of a misstatement of any material fact or omit any statement to state a material fact required to be stated therein or necessary to make the statements contained and information therein, in the light of the circumstances in under which such statements they were made, not misleading;.
(lf) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise furnish such information, execute such instruments and take such other action in cooperation with the Representative promptly Underwriter as the Underwriter may reasonably request in endeavoring (i) to qualify the Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions of the institution of any proceedings known United States as the Underwriter may designate, and (ii) to it by any governmental agency prohibiting or otherwise affecting determine the use eligibility of the Preliminary Official Statement or Bonds for investment under the Official Statement laws of such states and other jurisdictions, and subject to Section 7 hereof, will use its best efforts to continue such qualification in connection with the offering, sale or effect so long as required for distribution of the Bonds; provided, however, that in no event shall the Authority be required to qualify as a foreign corporation in any such state or take any action that would subject it to general, special or unlimited serviceof process in any jurisdiction in which it is not now so subject;
(ng) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to To the best knowledge of the Authority, the adoption of the Authority Resolution will not, and the execution and delivery by the Authority of the Bonds, the Indenture, the Lease, the Site Lease, and this Purchase Contract (collectively, the “Authority Documents”) and compliance with the provisions on the Authority’s knowledgepart contained therein will not, in any material respect, conflict with or constitute on the part of the Authority a breach of or default under any material law, administrative regulation, court order, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the Authority is a party or by which it is bound, which breach or default would have a material adverse effect on the Authority’s ability to perform its obligations under the Authority Documents;
(h) The Authority is not and will not be in breach of or in default under any applicable constitutional provision, material law or administrative rule or regulation of the State of California or the United States, States or any applicable material judgment or decree or any trust material loan agreement, loan agreementindenture, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, which breach or default would have a material adverse effect on the Authority’s ability to perform its obligations under the Authority Documents, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a breach of or a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or have a material adverse effect on the Authority’s performance ability to perform its obligations under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;
(o) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigation, threatened (i) in The Authority covenants that it will not take any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the action that would cause interest on the Bonds from to be included in gross income for federal income tax purposes or contesting purposes; and
(j) If between the powers date of this Purchase Contract and up to and including the 25th day following the end of the underwriting period (as such term is defined in Rule 15c2-12) (i) an event occurs, of which the Authority has knowledge, which might or its authority to issue would cause the Bonds; (iii) which may result information in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement Statement, as then supplemented or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any amended, to contain an untrue statement of a material fact or omitted to omit to state any a material fact required to be stated therein or necessary to make the statements such information therein, in the light of the circumstances under which they were madeit was presented, not misleading, noror (ii) if the Authority is otherwise requested to amend, supplement or otherwise change the Official Statement, the Authority will notify the Underwriter, and if in the reasonable opinion of the Underwriter such event requires the preparation and publication of a supplement or amendment to the Official Statement, the Authority will participate in the amendment or supplement in a form and in a manner approved by the Underwriter and counsel to the Authority, provided all expenses thereby incurred will be paid by the Authority and provided further that, for purposes of this provision, the end of the underwriting period shall be the Closing Date unless the Underwriter on or prior to the Closing provides written notice to the contrary to the Authority; and For twenty-five (25) days from the date of the end of the underwriting period (as such term is defined in Rule l5c2-12), (i) the Authority will not participate in the issuance of any amendment of or supplement to the Official Statement to which, after being furnished with a copy, the Trustee or the Underwriter shall reasonably object in writing or which shall be disapproved by any of their respective counsel, and (ii) if any event relating to or affecting the Authority shall occur as a result of which it is necessary, in the opinion of counsel for the Underwriter, to amend or supplement the best knowledge Official Statement in order to make the Official Statement not misleading in light of the circumstances existing at the time it is delivered to a purchaser, the Authority will forthwith prepare and furnish to the Underwriter and the City (at the expense of the Authority is there any basis for any actiontwenty-five (25) days from the date of Closing, suit, proceeding, inquiry or investigation and thereafter at the expense of the nature described Underwriter) a reasonable number of copies of an amendment of or supplement to the Official Statement (in clauses (iform and substance satisfactory to counsel for the Underwriter and counsel to the Authority) through (iv) which will amend or supplement the Official Statement so that it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Official Statement is delivered to a purchaser, not misleading. For purposes of this clause (o);
(p) for purposes of the Rulesubsection, the Authority has heretofore deemed final will furnish such information with respect to itself as the Preliminary Official Statement prior to its use Underwriter may from time-to-time reasonably request. The execution and distribution delivery of this Purchase Contract by the UnderwritersAuthority shall constitute a representation by the Authority to the Underwriter that the representations, except for the information specifically permitted to be omitted by paragraph (b)(1) warranties and agreements contained in this Section 2 are true as of the Ruledate hereof; and
(q) except provided that as to information furnished by the City pursuant to this Purchase Contract or otherwise disclosed and in the Preliminary Official Statement and in the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to is relying on such information in making the Rule. All Authority’s representations, warranties and agreements agreements; and as to all matters of law, other than federal tax and securities laws, the Authority is relying on the advice of counsel to the Authority; and as to matters of federal tax law and securities laws, the Authority is relying on the advice of Bond Counsel; and provided further that no member of the governing body or officer, employee or agent of the Authority shall remain operative and in full force and effect, regardless be individually liable for the breach of any investigations made by representation, warranty or on the Underwriters’ behalf, and shall survive the delivery of the Bondsagreement contained herein.
Appears in 2 contracts
Samples: Purchase Contract, Purchase Contract
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority hereby represents, “to warrants and agrees with the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.Underwriter as follows:
(a) The Authority is, and will be on the Authority is Closing Date, a joint exercise powers agency of powers authority duly the State of California organized and validly existing under and operating pursuant to the laws of the State, State of California with the full legal right, power and authority to issueissue the Series 2023[●] Bonds pursuant to the Act, sell to execute and deliver the Bonds Official Statement and to the Underwriters pursuant to enter into the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase Agreement, the Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate executed by the Authority and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Accounts Agreement, the Ground Lease, the Lease Agreement, [the Landlord Estoppel Certificate (Lease Agreement),] the Continuing Disclosure Agreement and the Indenturethis Purchase Contract (collectively, the “Legal Authority Documents”) and, when executed and to carry out delivered by the respective parties thereto, the Authority Documents will constitute the legal, valid and consummate all transactions contemplated by each binding obligations of the aforesaid documents and Authority in accordance with their respective terms.
(b) By all necessary official action of the Authority prior to or concurrently with the acceptance hereof, the Authority has duly approved the distribution of the Preliminary Official Statement and the execution, delivery and distribution of the Official Statement, and compliance with the provisions of the Bonds has duly authorized and the Legal Documents will not materially conflict with or constitute a breach of or default under any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and approved the execution and delivery of, and the performance by the Authority of this Bond Purchase Agreementthe obligations on its part contained in, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement Authority Documents and the Tax Certificate (consummation by it of all other transactions contemplated by the “Authority Resolution”) was duly adopted at a meeting of Preliminary Official Statement and the Authority 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 is in full force and effect and has not been amended or repealed;Documents.
(c) when When delivered by the Authority and paid for by the Underwriters Underwriter in accordance with the provisions of this Bond Purchase AgreementContract, the Series 2023[●] Bonds will have been duly authorized, executed and delivered and will constitute the legal, valid and binding limited special obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;Indenture and the Assignment Agreement.
(d) The Authority will deliver the duly executed Series 2023[●] Bonds and the Authority has duly authorized and approved Documents on the execution and delivery of the BondsClosing Date and, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Series 2023[●] Bonds and the Legal Authority Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;.
(e) at None of the Authority’s proceedings or authority for the issuance, sale, execution and delivery of the Series 2023[●] Bonds, or the execution and delivery of the Authority Documents, or the adoption of the resolution or resolutions of the governing body of the Authority authorizing the issuance, sale, execution and delivery of the Series 2023[●] Bonds and the Authority Documents, has been repealed, modified, amended, revoked or rescinded.
(f) At the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Authority Documents, and no event of default thereunder and no event, event has occurred and is continuing which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has shall have occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which be continuing that would constitute a condition precedent to materially adversely affect the due performance by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;Authority Documents.
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, to which it is subject or any applicable judgment or decree or any trust loan agreement, loan agreementindenture, bond, note, resolution, ordinanceagreement or other instrument to which the Authority is a party or to which the Authority or any of its property or assets is otherwise subject, and no event has occurred and is continuing which with the passage of time or the giving of notice, or both, would constitute such a default or event of default in any material respect under any such instrument which would affect its ability to perform under the Authority Documents; and the issuance of the Series 2023[●] Bonds and the execution and delivery of the Official Statement and the Authority Documents and compliance with the provisions on the Authority’s part contained herein and therein, will not in any material respect 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 Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or the properties or assets of the Authority under the terms of any such law, regulation administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as may be provided by in the Bonds and the Legal Collateral Documents;.
(oh) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government governmental agency, public board or body, is pending or or, to the best knowledge of the Authority’s knowledge Authority after reasonable investigation, threatened (i) against the Authority in any way questioning material respect affecting the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority its officers to their respective offices; (ii) affecting, contesting offices or affecting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any the Series 2023[●] Bonds or contesting or affecting, as to the Authority, the validity or enforceability of the Bonds, Series 2023[●] Bonds or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Authority Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue enter into, adopt or perform its obligations under any of the Bonds; (iii) which may result foregoing, or contesting in any material adverse change relating to the Authority; or (iv) contesting way the completeness or accuracy of the Preliminary Official Statement or the Official Statement Statement, or any amendment or supplement thereto, wherein an unfavorable decision, ruling or amendment thereto finding would materially adversely affect the validity or asserting that enforceability of the Authority Documents.
(i) All authorizations, approvals, licenses, permits, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the Authority of its obligations in connection with the issuance of the Series 2023[●] Bonds under the Indenture have been duly obtained, except for such approvals, consents and orders as may be required under the Blue Sky or securities laws of any state in connection with the offering and sale of the Series 2023[●] Bonds; and, except as described in or contemplated by the Preliminary Official Statement and the Official Statement, all authorizations, approvals, licenses, permits, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the Authority of its obligations under the Series 2023[●] Bonds and the Authority Documents have been duly obtained.
(j) The Authority will furnish such information, execute such instruments and take such other action in cooperation with the Underwriter as it may reasonably request in order
(i) to qualify the Series 2023[●] Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions of the United States as the Underwriter may designate and (ii) to determine the eligibility of the Series 2023[●] Bonds for investment under the laws of such states and other jurisdictions, and will use its best efforts to continue such qualification in effect so long as required for distribution of the Series 2023[●] Bonds; provided,
(k) As of its date and the date hereof, the information contained under the captions “INTRODUCTION — General Purpose and Background”, “— Summary of Security and Sources of Repayment for the Series 2023[●] Bonds” and “— Summary of the Series 2023[●] Bonds and Additional Bonds”; “SECURITY AND SOURCES OF PAYMENT FOR THE BONDS”; “PROJECT PARTICIPANTS — The Authority”; “BANKRUPTCY RISK CONSIDERATIONS — Bankruptcy of the Authority; Enforceability of Documents with Respect to the Bankruptcy of the Authority”; and “LITIGATION — The Authority” (collectively, the “Authority Information”) in the Preliminary Official Statement contained Statement, did not, except as to the information permitted to be omitted by Rule 15c2-12, contain any untrue statement of a material fact or omitted omit to state any 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, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bonds.
Appears in 2 contracts
Samples: Purchase Contract, Purchase Contract
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.
(a) the Authority is a joint exercise of powers authority duly organized and validly existing under and pursuant to the laws of the State, with full legal right, power and authority to issue, sell and deliver the Bonds to the Underwriters pursuant to the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase Agreement, the Bonds, the Site Lease, the Facility MTS Site Lease, the Facilities Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate executed by the Authority and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility MTS Site Lease, the Assignment Agreement, the Escrow Agreement Facilities Lease and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each of the aforesaid documents and the Preliminary Official Statement and the Official Statement, and compliance with the provisions of the Bonds and the Legal Documents will not materially conflict with or constitute a breach of or default under any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;on
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Second Amendment to Site Lease, the Facility Second Amendment to Facilities Lease, the Indenture, the Escrow Agreement Second Supplemental Indenture and the Tax Certificate, Certificate and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, event has occurred and is continuing which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuingthereunder;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, knowledge the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, instrument which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Second Amendment to Site Lease, the Facility Second Amendment to Facilities Lease, the Indenture, the Escrow Agreement Second Supplemental Indenture and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;
(o) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; ;
(ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through through
(iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bonds.
Appears in 2 contracts
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority, “subject to the best of limitations provided herein, warrants, represents to and agrees with the Authority’s knowledge” means Underwriter with respect to the best knowledge of the officers thereof.Bonds that:
(a) the The Authority is a joint exercise of powers authority duly organized public instrumentality and validly existing under and pursuant to the laws political subdivision of the StateState of California authorized under the Act to issue the Bonds and to exercise all rights and powers permitted under the Act;
(b) The Authority has complied with the provisions of the Act and all other applicable laws, with full legal rightrules and regulations necessary, and has the requisite power and authority authority, to issue, sell (i) execute and deliver the Bonds to the Underwriters pursuant to the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase AgreementContract, the Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement Indenture and the Tax and Nonarbitrage Certificate executed by the Authority and the City Loan Agreement (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenturecollectively, the “Legal Documents”), (ii) issue and to carry out deliver the Bonds as provided in this Purchase Contract, and (iii) consummate all the transactions on its part contemplated by each by, and perform its obligations under the Legal Documents;
(c) By the adoption of its delegation resolution, dated May 26, 2010, and its final resolution, dated May 26, 2010 (collectively, the aforesaid documents and “Authorizing Resolution”), the Authority has duly authorized the distribution of the Preliminary Official Statement and the Official Statement, and compliance approved the execution and delivery of, and the due performance by the Authority of the obligations on its part contained in the Legal Documents and the Bonds and the consummation by the Authority of the transactions contemplated thereby and hereby;
(d) When executed and delivered on the Closing Date (as hereinafter defined) in accordance with the provisions of this Purchase Contract and assuming the due authorization, execution, and delivery by the other respective parties thereto, the Legal Documents and the Bonds will constitute valid and binding obligations of the Authority enforceable against the Authority in accordance with their respective terms, except as their enforceability may be limited by reasons of bankruptcy, insolvency, reorganization or other laws generally affecting creditors’ remedies; the application of equitable principles regardless of whether equitable remedies are sought; by provisions of California law governing claims against public agencies; and by matters of public policy;
(e) To the best knowledge of the Authority, the execution and delivery by the Authority of the Legal Documents and the Bonds and compliance with the Legal Documents terms thereof will not materially conflict with with, or constitute a violation, breach of of, or default under any applicable constitutional provisionunder, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, indenture, resolution or any other agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by which it is bound, or any law or any rule, regulation, order or decree of any court or governmental agency or body having jurisdiction over the Authority at a regularly scheduled meeting on or any of its activities or properties, 2015 approving or result in the creation or imposition of any prohibited lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Authority, which conflict, violation, breach, default, lien, charge or encumbrance would materially and authorizing adversely affect the issuance transactions contemplated hereby or which, in any way, would materially and adversely affect the validity of the Bonds and the execution and delivery by the Authority or any of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents; provided, assuming due authorizationhowever, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in that no representation is made regarding compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time any federal or giving of notice, state securities or both, would constitute an event of default thereunder has occurred and is continuing“blue sky” laws;
(f) all approvalsThere is no action, consents and orders of suit, or proceeding at law or in equity before or by any court, or any inquiry or investigation before or by any governmental authority agency, public board, or agency having jurisdiction in the matter body, with respect to which would constitute a condition precedent to the due performance by service of process on the Authority of its obligations under the Bonds and the Legal Documents have has been duly obtained or madecompleted or, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as without independent investigation, threatened against the Authority: (i) seeking to prohibit, restrain, or enjoin the execution and delivery of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated Bonds by the Legal Documents, the Preliminary Official Statement Authority or the Official Statement collection of revenues pledged or to be pledged to pay the principal of and interest on the Bonds; (ii) contesting or seeking to affect the validity or enforceability of the BondsBonds or the Legal Documents; or (iii) contesting the power of the Authority to enter into, adopt, or perform its obligations under any of the foregoing documents, wherein an unfavorable decision, ruling, or finding would materially and adversely affect the transactions contemplated hereby, or which would materially and adversely affect the validity of the Bonds or the Legal Documents;
(jg) No consent, approval, authorization, or other action by any governmental or regulatory authority having jurisdiction over the Indenture creates a valid pledge Authority that has not been obtained is or will be required for the execution and delivery of the Bonds or the consummation by the Authority of the other transactions on its part contemplated by this Purchase Contract, except as such may be required for the state securities or “blue sky” laws, for final filings or notice to the California Debt Limit Allocation Committee or the California Debt and grant of a first priority security interest in the Revenues purported Investment Advisory Commission, and for filings to be pledged thereby, subject made to no prior pledges or security intereststhe Internal Revenue Service on Form 8038;
(kh) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to To the best knowledge of the Authority’s knowledge, without independent investigation, (i) the Authority is not and will not be in breach of or in default under (A) any applicable constitutional provision, law or administrative rule or regulation of the State of California or the United States, States or any applicable judgment or decree decree, or (B) any trust loan agreement, loan agreementindenture, bond, note, resolution, ordinanceagreement, agreement or other instrument to which the Authority is a party or is otherwise subject, ; and (ii) no event has occurred and is continuing which, with the passage of time or the giving of notice, notice or both, would constitute a default or an event of default under any such instrument, which breach or default would materially and adversely affect the security transactions contemplated hereby and by the Official Statement or which, in any way would materially and adversely affect the validity of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and provided that no representation is made regarding compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with any federal or constitute a breach of state securities or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents“blue sky” laws;
(oi) as As of the time of acceptance hereof date hereof, the statements and information contained in the Closing, except as disclosed in Preliminary Official Statement under the captions “THE AUTHORITY” and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigation, threatened “ABSENCE OF MATERIAL LITIGATION,” (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating solely as it relates to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained do not contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein or which is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(qj) except The Authority agrees to cooperate with the Underwriter and its counsel in endeavoring to qualify the Bonds for offering and sale under the securities or blue sky laws of such jurisdictions of the United States as otherwise disclosed in the Preliminary Official Statement and the Official StatementUnderwriter may request; provided, however, that the Authority has will not previously failed be required to comply execute a consent to service of process or to qualify as a foreign corporation in connection with any continuing disclosure obligation undertaken pursuant to the Rulesuch qualification in any jurisdiction in which it is not now so subject. All representations, warranties and agreements Any certificate signed by any officer of the Authority and delivered to the Underwriter shall remain operative be deemed a representation and warranty of the Authority to the Underwriter as to the statements made therein. The execution and delivery of this Purchase Contract by the Authority shall constitute a representation by the Authority to the Underwriter that the representations and warranties contained in full force this Section 4 are true as of the date hereof; provided, however, that the Authority makes no representations or warranties as to the Borrower or any party to the agreements or instruments described herein other than the Authority and effectdoes not represent or warrant in any respect as to any of the statements, regardless of information (financial or otherwise), action taken or to be taken, representations or certifications furnished, or to be made and furnished, by the Borrower or any investigations made by parties to the agreements or on instruments described herein other than the Underwriters’ behalf, Authority in connection with the execution and shall survive the delivery of the BondsBonds or any such statements or information (financial or otherwise) contained in the Official Statement or the Legal Documents. Additionally, as to matters of law other than federal tax law the Authority is relying on the advice of counsel to the Authority; and as to matters of federal tax law the Authority is relying on the advice of Bond Counsel (as hereinafter defined). No member of the governing body of the Authority, or any officer or employee of the Authority, shall be individually liable for the breach of any representation, warranty, or agreement contained herein.
Appears in 2 contracts
Samples: Bond Purchase Agreement, Bond Purchase Contract (SJW Corp)
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority represents, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.warrants, and agrees that:
(a) The Authority is a public body corporate and politic created and existing under the Act and, unless otherwise required by law, shall maintain its corporate existence so long as the Series 2023 Bond is outstanding. Under the provisions of the Act, the Authority is a joint exercise authorized to enter into and carry out the transactions contemplated by this Contract, the Bond Resolution, the issuance of powers authority duly organized the Series 2023 Bond and validly existing under and pursuant the financing of the Project;
(b) There is no litigation or proceeding pending, or to the laws knowledge of the StateAuthority threatened, against the Authority which would have a material adverse effect on the right of the Authority to execute this Contract or the ability of the Authority to comply with full legal rightany of its obligations under the Series 2023 Bond, power and authority to issue, sell and deliver the Bonds to the Underwriters pursuant to the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase AgreementContract, the Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate Bond Resolution or any other documents contemplated to be executed by the Authority in connection with the issuance and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each delivery of the aforesaid documents Series 2023 Bond;
(c) This Contract, upon execution of the same, will constitute the legal, valid and binding obligation of the Preliminary Official Statement and the Official StatementAuthority in accordance with its terms, and compliance with performance by the Authority of its obligations hereunder will not violate, or result in a breach of any of the provisions of the Bonds and the Legal Documents will not materially conflict with of, or constitute a breach of or default under under, any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;by which the Authority is bound; and
(bd) Except as herein and in the resolution adopted Bond Resolution provided, the Authority will not encumber any part of its interest in moneys paid to the Authority or the holder of the Series 2023 Bond (the “Holder”), by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing City under this Contract (the “Revenues”) or its rights under this Contract. The pledge made of the Revenues payable under this Contract upon issuance of the Series 2023 Bond will constitute a first and prior pledge of and lien on said Revenues on a parity with the pledge or lien for the payment of any Parity Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”defined below) was duly adopted at a meeting of the Authority called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughouthereafter issued, and is in full force and effect and has not been amended or repealed;
(c) when delivered said pledge shall at no time be impaired by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective termsRevenues shall not otherwise be pledged, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;
(o) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bondsso provided.
Appears in 2 contracts
Samples: Intergovernmental Contract, Intergovernmental Contract
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.
(a) the Authority is a joint exercise of powers authority duly organized and validly existing under and pursuant to the laws of the State, with full legal right, power and authority to issue, sell and deliver the Bonds to the Underwriters Underwriter pursuant to the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase Agreement, the Bonds, the Site Lease, the Facility Facilities Lease, the Indenture, the Escrow Agreement and the [Tax and Nonarbitrage Certificate Certificate] executed by the Authority and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement Facilities Lease and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each of the aforesaid documents and the Preliminary Official Statement and the Official Statement, and compliance with the provisions of the Bonds and the Legal Documents will not materially conflict with or constitute a breach of or default under any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by the Authority at a regularly scheduled meeting on [ ], 2015 2012 approving and authorizing authorizing, among other things, the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement Facilities Lease and the Tax Certificate Indenture (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters Underwriter in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Facilities Lease, the Indenture, the Escrow Agreement Indenture and the Tax Certificate, Certificate and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generallygenerally and to the extent the indemnification provisions in this Bond Purchase Agreement may be limited by applicable federal and state securities laws;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, event has occurred and is continuing which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuingthereunder;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters Underwriter pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters Underwriter as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative Underwriter promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the RepresentativeUnderwriter, which consent will not be unreasonably withheld. The Authority will advise the Representative Underwriter promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, after due inquiry, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, instrument which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate Legal Documents and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds such agreements or instruments do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;
(o) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge knowledge, after reasonable investigation, threatened (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the UnderwritersUnderwriter, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ Underwriter’s behalf, and shall survive the delivery of the Bonds.
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority hereby represents, “to warrants and agrees with the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.Remarketing Agents that:
(a) the The Authority has been duly created and is a joint exercise of powers authority duly organized and validly existing under and pursuant to the laws of the StateState and has the power to have issued the Series 2012A Bonds pursuant to the Act, with the Bond Resolution and the Indenture.
(b) The Authority has full legal right, power and authority under the Constitution and the laws of the State to cause the collection of the Sales Tax, to have adopted the Bond Resolution, to have entered into the Legal Documents and this Remarketing Agreement; the Authority has full legal right, power and authority to issue, sell and deliver the Bonds to the Underwriters pursuant to the Indenture, and execute, deliver and perform its obligations, as obligations under the case may be, under this Bond Purchase AgreementResolution, the Series 2012A Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement Legal Documents and the Tax and Nonarbitrage Certificate executed by the Authority and the City (the “Tax Certificate” and collectively with this Bond Purchase Remarketing Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all the transactions contemplated thereby and hereby and by each the Remarketing Memorandum; except as described in the Preliminary Remarketing Memorandum and the Remarketing Memorandum, the Authority has complied with, or will at the Settlement Time be in compliance with, in all respects material to this transaction, the Constitution, the Act, the Ordinance and laws of the aforesaid documents State, and the Preliminary Official Statement and the Official Statement, and compliance with the provisions terms of the Bonds and Bond Resolution, the Series 2012A Bonds, the Legal Documents will not materially conflict with or constitute a breach of or default under any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Remarketing Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;.
(c) when delivered Except as described in the Preliminary Remarketing Memorandum and the Remarketing Memorandum, by all necessary official action, the Authority has duly adopted
(i) Ordinance 88-01, which was approved by a majority of voters in the County on November 8, 1988 and paid for extended by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations more than a two thirds vote of the Authority voters in conformity withthe County voting on such extension on November 2, 2004 and entitled to (ii) Ordinance 06-01 (the benefit “Ordinance”), which amended and security ofrestated Ordinance 88-01, the Indenture;as previously amended.
(d) By all necessary official action, the Authority has duly adopted the Bond Resolution, has duly authorized the preparation and distribution of the Preliminary Remarketing Memorandum, and the preparation, execution and delivery of the Remarketing Memorandum, has duly authorized and approved the execution and delivery of, and the performance of its obligations under, the Series 2012A Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Remarketing Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, and the consummation by it of all other transactions contemplated by this Remarketing Agreement, the Bond Resolution, and the Legal Documents. The Legal Documents and this Remarketing Agreement (assuming due authorization, execution and delivery by and enforceability against the other respective parties thereto) are in full force and effect and each constitutes legal, will constitute the legally valid and binding agreements or obligations of the Authority Authority, enforceable in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting limiting creditors rights generally, the application of equitable principles, the exercise of judicial discretion and the limitations on legal remedies against public entities in the State. DRAFT
(e) The Series 2012A Bonds constitute legal, valid and binding obligations of the Authority, enforceable in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(e) at , the date hereof application of equitable principles, the exercise of judicial discretion and as the limitations on legal remedies against public entities in the State, and will be entitled to the benefits of the Closing Datelaws of the State, except as otherwise disclosed in the Preliminary Official Statement Indenture and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;Bond Resolution.
(f) all All consents, approvals, consents and orders authorizations, orders, licenses or permits of any governmental authority authority, legislative body, board, agency or agency commission having jurisdiction in of the matter which matter, that are required for the due authorization by, or that would constitute a condition precedent to or the due absence of which would materially adversely affect the remarketing of the Series 2012A Bonds and the performance of the Legal Documents by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained (except for such approvals, consents and orders as may be required under the Blue Sky or made, and are, and will be as securities laws of any state in connection with the remarketing of the Closing DateSeries 2012A Bonds, in full force and effect;as to which no representation is made).
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters Except as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) described in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement Remarketing Memorandum and the Official Statement, to the best of the Authority’s knowledgeRemarketing Memorandum, the Authority is not and will not be in any material respect in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or of the United States, States or any applicable agency or instrumentality of either or any judgment or decree or any trust loan agreement, loan agreementindenture, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or to which the Authority or any of its property or assets is otherwise subjectsubject (including, without limitation, the Bond Resolution and the Legal Documents), and no event has occurred and is continuing which, which with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect ; and the security adoption of the Bond Resolution, the issuance and remarketing of the Series 2012A Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Remarketing Agreement and the Tax Certificate and the Bonds Legal Documents and compliance with the provisions of each of the Legal Documents Authority’s obligations therein and the Bonds herein do not and will not in any material respect conflict with with, violate or constitute result in a breach of or constitute a default under under, any applicable constitutional provision, law or law, administrative rule or regulation of the State or the United States or any applicable regulation, judgment, decree, license, permit, trust agreement, loan agreement, bondindenture, noteagreement, resolutionmortgage, ordinance agreement lease or other instrument to which the Authority (is a party or to which the Authority or any of its officers in their respective capacities as such) property or assets is otherwise subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its the property or assets or properties of the Authority or under the terms of any such law, regulation or instrumentinstruments, except as may be provided by the Bonds Bond Resolution and the Legal Documents;. DRAFT
(oh) as As of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statementdate hereof, no action, suit, proceeding, inquiry or investigation, investigation at law or in equity, equity before or by any court, government agency, public board or body, is pending or or, to the best of the Authority’s knowledge after reasonable investigationknowledge, threatened against the Authority: (i) in any way questioning affecting the corporate existence of the Authority or in any way challenging the respective powers of the several offices or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer officials of the Authority to their respective such offices; (ii) affecting, contesting affecting or seeking to prohibit, restrain or enjoin the issuance, sale issuance or delivery remarketing of any of the Series 2012A Bonds, or the payment application of the proceeds of the remarketing of the Series 2012A Bonds, the proceedings authorizing and approving the Sales Tax, the levy or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or Sales Tax; (iii) in any way contesting or affecting affecting, as to the Authority, the validity or enforceability of the Act, the proceedings authorizing the Sales Tax, the Bond Resolution, the Series 2012A Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or this Remarketing Agreement; (iv) in any way contesting the powers of the Authority or its authority with respect to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; issuance or (iv) contesting the completeness or accuracy remarketing of the Preliminary Official Statement Series 2012A Bonds, the adoption of the Bond Resolution, or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use execution and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bonds.Legal Documents or this Remarketing Agreement, or contesting the power or authority to levy the Sales Tax;
Appears in 1 contract
Samples: Remarketing Agreement
Representations, Warranties and Agreements of the Authority. For purposes The Authority represents and warrants to the Dealer at the date of this Section 6Agreement, “to at each date upon which an agreement for the best sale of the Authority’s knowledge” means Designated Notes is made, and at each date upon which Designated Notes is, or is to the best knowledge of the officers thereof.be, issued, that:
(a) the The Authority is a joint exercise of powers authority duly organized and validly existing under and pursuant to the laws of the State, with has full legal right, power power, and authority to issueenter into, perform and observe the covenants and agreements contained in this Agreement, the Indenture and the Issuing and Paying Agency Agreement (this Agreement, the Indenture and the Issuing and Paying Agency Agreement, collectively, the “Transaction Documents”), to issue and sell and deliver the Designated Notes as special obligations of the Authority payable as Subordinated Bonds to the Underwriters pursuant to in accordance with the Indenture, and executeto deliver the Designated Notes to the Dealer as provided herein, deliver and perform its obligations, as the case may be, under this Bond Purchase Agreement, the Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate executed by the Authority and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all other transactions contemplated by each described in the Transaction Documents;
(b) By official action of the aforesaid documents Authority prior to or concurrently with the acceptance hereof, the Authority has duly and validly authorized and approved the execution and delivery of, and the Preliminary Official Statement performance by the Authority of the obligations contained in, the Transaction Documents and the Official Statement, Designated Notes; and compliance with the provisions Transaction Documents and the Designated Notes have been duly and validly executed and delivered by the Authority and constitute valid and binding contractual obligations of the Bonds and the Legal Documents will Authority;
(c) The Authority is not materially conflict with or constitute a in breach of or default under any applicable constitutional provision, law, law or administrative regulation, court order regulation of the State or consent decree the United States or any applicable judgment or decree or any loan agreement, note, indenture, resolution, indentureagreement, agreement or other instrument instrument, to which the Authority is a party or may be is otherwise subject;
(b) , which would have a material and adverse effect upon the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance business or financial condition of the Bonds Authority; and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery Transaction Documents by the other respective parties thereto, will constitute the legally valid Authority and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event provisions of default thereunder and no event, which, with the passage of time each thereof will not violate or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provisionexisting law, law or administrative rule or regulation of the State or the United Statesregulation, judgment, decree, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;
(od) The Offering Memorandum, as of the time of acceptance hereof same may be amended or supplemented, and the Closingeach update thereof, except as disclosed in Preliminary Official Statement and for the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change information relating to the Authority; or (iv) contesting Subordinated Credit Providers and under the completeness or accuracy caption “The Letters of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any Credit and Reimbursement Agreements” and in Appendix B – “The Book-Entry System”, does not contain an untrue statement of a material fact or omitted to state any an omission of a material fact required to be stated therein or necessary to make the statements any statement contained therein, in the light of the circumstances under which they were such statement was made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bonds.
Appears in 1 contract
Samples: Dealer Agreement
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority represents, “warrants and covenants to and agrees with the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.Underwriter that:
(a) the The Authority is duly organized and validly existing as a joint exercise of powers authority agency under the laws of the State of California and has duly authorized the formation of the District pursuant to the Resolution of Formation and the Xxxxx-Xxxx Community Facilities Act of 1982, as amended (Sections 53311 et seq. of the Government Code of the State of California) (the “Law”). The Board, as the legislative body of the District, has duly adopted the District Resolutions, and has caused to be recorded in the real property records of the City and County of San Francisco as Document No. 0000-0000000-00 recorded on September 7, 2007, an Amended and Restated Notice of Special Tax Lien (the “Notice of Special Tax Lien”) (such District Resolutions and Notice of Special Tax Lien being collectively referred to herein as the “Formation Documents”). Each of the Formation Documents remains in full force and effect as of the date hereof and has not been amended. The District is duly organized and validly existing as a community facilities district under and pursuant to the laws of the StateState of California. The Authority has, with and at the Closing Date will have, as the case may be, full legal right, power and authority (i) to execute, deliver and perform its obligations under this Purchase Agreement and the Continuing Disclosure Certificate, and to carry out all transactions contemplated by each of such agreements, (ii) to issue, sell and deliver the Bonds to the Underwriters Underwriter pursuant to the Resolution of Issuance and the Indenture as provided herein, and (iii) to carry out, give effect to and consummate the transactions contemplated by the Formation Documents and by the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase Agreement, the BondsEscrow Agreement, the Site Leaseby and between MUFG Union Bank, the Facility LeaseN.A., the Indenture, the as Escrow Agreement and the Tax and Nonarbitrage Certificate executed by the Authority and the City Bank (the “Tax Certificate” and collectively with this Bond Purchase AgreementEscrow Bank”), the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the IndentureAuthority, for and on behalf of the District, dated as of August 1, 2018 (the “Escrow Agreement”), and the Continuing Disclosure Certificate (collectively, the “Legal District Documents”) and the Official Statement;
(b) The Authority has complied, and will at the Closing Date be in compliance, in all material respects, with the Formation Documents and the District Documents, and any immaterial noncompliance by the Authority, if any, will not impair the ability of the Authority to carry out and out, give effect to or consummate all the transactions contemplated by each the foregoing. From and after the date of issuance of the aforesaid documents Bonds, the Authority will continue to comply with the covenants of the Authority contained in the District Documents;
(c) The Board, or the Committee thereof, has duly and validly: (i) adopted the District Resolutions, (ii) called, held and conducted in accordance with all requirements of the Law an election within the District to approve the levy of the Special Tax within the District and the issuance of the Bonds and recorded the Notice of Special Tax Lien which established a continuing lien on the land within the District securing the Special Tax, (iii) authorized and approved the execution, delivery and due performance of the Bonds and the District Documents, (iv) authorized the preparation, delivery and distribution of the Preliminary Official Statement and the Official Statement, and (v) authorized and approved the performance by the Authority of its obligations contained in, and the taking of any and all action as may be necessary to carry out, give effect to and consummate the transactions contemplated by, each of the District Documents (including, without limitation, the collection of the Special Tax), the Bonds and the Official Statement and at the Closing Date, the Formation Documents will be in full force and effect and the District Documents and the Bonds will constitute the valid, legal and binding obligations of the Authority and the District and (assuming due authorization, execution and delivery by other parties thereto, where necessary) will be enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights in general and to the application of equitable principles if equitable remedies are sought;
(d) To the best of the Authority’s knowledge, neither the District nor the Authority is in breach of or default under any applicable law or administrative rule or regulation of the State of California (the “State”) or the United States, or of any department, division, agency or instrumentality thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, fiscal agent agreement, contract, agreement or other instrument to which the District or the Authority is a party or is otherwise subject or bound, a consequence of which could be to materially and adversely affect the performance by the District or the Authority of its obligations under the Bonds, the Formation Documents or the District Documents, and compliance with the provisions of the Bonds and the Legal Documents each thereof will not materially conflict with or constitute a breach of or default under any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or of any department, division, agency or instrumentality thereof, or under any applicable judgment court or administrative decree or order, or a material breach of or default under any trust agreement, loan agreement, bond, note, resolution, ordinancetrust agreement, contract, agreement or other instrument to which the Authority District or the Authority, as the case may be, is a party or is otherwise subject, and no event has occurred and is continuing which, subject or bound;
(e) Except for compliance with the passage blue sky or other states securities law filings, as to which the Authority makes no representations, all approvals, consents, authorizations, elections and orders of time or the giving of noticefilings or registrations with any State governmental authority, board, agency or both, commission having jurisdiction which would constitute a default condition precedent to, or an event the absence of default under any such instrument, which breach or default would materially adversely affect affect, the performance by the Authority of its obligations hereunder, or under the Formation Documents or the District Documents, have been obtained and are in full force and effect;
(f) The Special Tax constituting the security for the Bonds has been duly and lawfully authorized and may be levied under the Law, the State Constitution and the applicable laws of the Bonds State, and such Special Tax, when levied, will constitute a valid and legally binding continuing lien on the properties on which it has been levied;
(g) The Authority shall not supplement or amend the Authority’s performance under Official Statement or cause the Legal Documents; andOfficial Statement to be supplemented or amended without the prior written consent of the Underwriter. Until the date which is twenty-five (25) days after the “end of the underwriting period” (as hereinafter defined), if any event shall occur of which the Authority is aware, as a result of such times, except as disclosed in which it may be necessary to supplement the Preliminary Official Statement and in order to make the statements in the Official Statement, in light of the authorizationcircumstances existing at such time, execution and delivery of this Bond Purchase Agreementnot misleading, the Site Lease, Authority shall forthwith notify the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms Underwriter of any such lawevent of which it has knowledge and shall cooperate fully in furnishing any information available to it for any supplement to the Official Statement necessary, regulation or instrumentin the Underwriter’s opinion, except so that the statements therein as may so supplemented will not be provided by misleading in light of the circumstances existing at such time and the Authority shall promptly furnish to the Underwriter a reasonable number of copies of such supplement. As used herein, the term “end of the underwriting period” means the later of such time as (i) the Authority delivers the Bonds to the Underwriter, or (ii) the Underwriter does not retain, directly or as a member of an underwriting syndicate, an unsold balance of the Bonds for sale to the public. Unless the Underwriter gives notice to the contrary, the “end of the underwriting period” shall be deemed to be the Closing Date. Any notice delivered pursuant to this provision shall be written notice delivered to the Authority at or prior to the Closing Date, and shall specify a date (other than the Legal DocumentsClosing Date) to be deemed the “end of the underwriting period”;
(oh) as The Indenture creates a valid pledge of the Trust Estate (as defined in the Indenture) pursuant to the Indenture. Until such time as moneys have been set aside in an amount sufficient to pay all then outstanding Bonds at maturity or to the date of acceptance hereof redemption if redeemed prior to maturity, plus unpaid interest thereon to maturity or to the date of redemption if redeemed prior to maturity, and premium, if any, the ClosingAuthority will faithfully perform and abide by all of the covenants, except undertakings and provisions contained in the Indenture;
(i) Except as disclosed in Preliminary Official Statement and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government regulatory agency, public board or body, body is pending or or, to the best knowledge of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning which would materially adversely affect the corporate existence ability of either the Authority or the titles of District to perform its obligations under the CommissionersBonds, Chairthe Formation Documents or the District Documents, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or to enjoin the issuance, sale or delivery of any of the Bonds, the application of the proceeds thereof in accordance with the Indenture, or the payment collection or collection application of any amounts the Special Tax pledged or to be pledged to pay the principal of and interest on the Bonds, or the pledge thereof, or in any way contesting or affecting the validity or enforceability of the Bonds, the Legal Documents or Formation Documents, the consummation of the transactions contemplated thereby or herebyDistrict Documents, or contesting the exclusion any action contemplated by any of the interest on the Bonds from gross income for federal income tax purposes said documents, or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) way contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or the powers or authority of the Authority or the District with respect to the Bonds, the Formation Documents, the District Documents, or any supplement action of the Authority or amendment thereto the District contemplated by any of said documents; nor is there any action pending or, to the best knowledge of the Authority, threatened against the Authority or asserting the District which alleges that interest on the Bonds is not exempt from California personal income taxation;
(j) The Authority will furnish such information, execute such instruments and take such other action in cooperation with the Underwriter, at the expense of the Underwriter, as the Underwriter may reasonably request in order for the Underwriter (i) to qualify the Bonds for offer and sale under the “Blue Sky” or other securities laws and regulations of such states and other jurisdictions of the United States as the Underwriter may designate and (ii) to determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions, and will use its best efforts to continue such qualification in effect so long as required for distribution of the Bonds; provided, however, the Authority shall not be required to register as a dealer or a broker of securities or to consent to service of process in connection with any blue sky filing;
(k) Any certificate signed by any official of the Authority authorized to do so shall be deemed a representation and warranty to the Underwriter as to the statements made therein;
(l) The Authority will apply the proceeds of the Bonds in accordance with the Indenture and as described in the Official Statement;
(m) The information contained in the Preliminary Official Statement or relating to the Authority, the District, the Indenture, the Bonds, the Rate and Method, the Authority’s continuing disclosure compliance, the Continuing Disclosure Certificate and the District Resolutions was as of the date thereof, and the information contained in the Official Statement contained relating to the Authority, the District, the Indenture, the Bonds, the Rate and Method, the Authority’s continuing disclosure compliance, the Continuing Disclosure Certificate and the District Resolutions as of its date and on the Closing Date shall be, true and correct in all material respects and such information does not and shall not contain any untrue or misleading statement of a material fact or omitted omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(pn) for purposes of the Rule, the Authority has heretofore deemed final the The Preliminary Official Statement prior heretofore delivered to its use and distribution the Underwriter has been deemed final by the UnderwritersAuthority as of its date, except for the omission of such information specifically as is permitted to be omitted by in accordance with paragraph (b)(1) of Rule 15c2-12. The Authority hereby covenants and agrees that, within seven (7) business days from the Rule; anddate hereof, the Authority shall cause a final printed or electronic form of the Official Statement to be delivered to the Underwriter in a quantity mutually agreed upon by the Underwriter and the Authority so that the Underwriter may comply with paragraph (b)(4) of Rule 15c2-12 and Rules G-12, G-15 and G-32 of the Municipal Securities Rulemaking Board;
(qo) except [Except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority is, and has not previously failed always been, during the previous five years, in material compliance with respect to comply with any all of the Authority’s continuing disclosure obligation undertaken pursuant undertakings entered into to satisfy the related underwriters’ obligations under Rule 15c2-12;]
(p) Except as otherwise disclosed in the Preliminary Official Statement and Official Statement, the Formation Documents have not been amended, terminated, rescinded or modified;
(q) The Authority shall not voluntarily undertake any course of action inconsistent with satisfaction of the requirements applicable to the Rule. All representationsAuthority as set forth in this Purchase Agreement;
(r) The Authority shall cooperate with the Underwriter, warranties at the expense of the Underwriter, in the qualification of the Bonds for offering and agreements sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Underwriter may designate;
(s) The Authority shall not knowingly take or omit to take any action that, under existing law, may adversely affect the exemption from state income taxation of the interest on the Bonds.
(t) No member, officer, agent or employee of the governing body of the Authority or the District shall remain operative and in full force and effect, regardless be individually liable for the breach of any investigations made representation, warranty or agreement contained herein.
(u) The Authority shall not be directly, indirectly, contingently or otherwise liable for any costs, expenses, losses, damages, claims or actions of any conceivable kind under any conceivable theory under this Purchase Agreement or any document or instrument referred to herein or by reason of or on in connection with this Purchase Agreement or other document or instrument except to the Underwriters’ behalf, and shall survive the delivery extent of the BondsTrust Estate.
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority represents and warrants to and agrees with the Underwriter that, “to the best as of the Authority’s knowledge” means to the best knowledge date hereof and as of the officers thereof.Closing:
(a) The statements and information contained in the Official Statement, under the captions “THE AUTHORITY,” “LITIGATION” and “STATE NOT LIABLE ON BONDS” with respect to the Authority are true and correct in all material respects for the purposes for which its use is authorized and do not (or will not) contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(b) The Authority is a joint exercise of powers authority duly public body corporate and politic, organized and validly existing under and pursuant to the laws constituting a public instrumentality of the State, with and has duly adopted the Bond Resolution authorizing the execution and delivery of this Purchase Agreement and the Official Statement.
(c) The Authority has the full legal right, power and authority to issue, sell the Bonds pursuant to this Purchase Agreement and to execute and deliver this Purchase Agreement and the Bonds to Official Statement for use in accordance with applicable legal requirement by the Underwriters pursuant to Underwriter in connection with the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase Agreement, sale of the Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Authority has taken all actions and Nonarbitrage Certificate obtained all approvals required in connection with the same. This Purchase Agreement has been duly authorized, executed and delivered by the Authority and and, assuming the City (the “Tax Certificate” and collectively with this Bond Purchase Agreementdue authorization, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each of the aforesaid documents and the Preliminary Official Statement and the Official Statement, and compliance with the provisions of the Bonds and the Legal Documents will not materially conflict with or constitute a breach of or default under any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreementother parties hereto, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement will constitute a valid and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting binding obligation of the Authority called and held pursuant Authority, enforceable in accordance with its terms subject to law and with all public notice required by law and at which a quorum was present and acting throughoutany applicable bankruptcy, and is in full force and effect and has not been amended insolvency, moratorium or repealed;the similar laws or equitable principles affecting creditors’ rights or remedies generally.
(cd) The Authority has the full power and authority to execute the Bonds and, when delivered by the Authority to and paid for by the Underwriters Underwriter at the Closing in accordance with the provisions of this Purchase Agreement, the Bond Purchase Resolution, the Act and the Loan and Trust Agreement, the Bonds will have been duly authorized, executed and delivered issued and will constitute the valid and binding special limited obligations of the Authority enforceable in conformity with, accordance with their terms and entitled to the benefit benefits and security ofof the Loan and Trust Agreement subject to any applicable bankruptcy, the Indenture;insolvency, moratorium or other similar laws or equitable principles affecting creditors’ rights or remedies generally.
(de) The Authority has the full power and authority to enter into the Loan and Trust Agreement and to authorize the distribution of the Official Statement and the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Loan and Trust Agreement and the Tax Certificatedistribution of the Official Statement. The Loan and Trust Agreement, and when executed and deliveredby the Authority, the Bonds and the Legal Documentswill, assuming the due authorization, execution and delivery by the other respective parties thereto, will constitute the legally a legal, valid and binding obligations obligation of the Authority Authority, enforceable in accordance with their respective terms, except as enforcement may be limited by its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws or equitable principles relating to or affecting creditors’ rights or remedies generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;).
(f) With respect to the issuance of the Bonds, the Authority has, and at the date of the Closing will have, in all respects complied with the Bond Resolution and the Act.
(g) All approvals, consents and orders of any governmental authority authority, board, agency, council, commission or agency other body having jurisdiction in the matter which that would constitute a condition precedent to the due issuance of the Bonds on the part of the Authority and performance by the Authority of its obligations hereunder and under the Bonds Bond Resolution, the Loan and Trust Agreement and the Legal Documents Bonds have been duly obtained or madeor, and areif not, and will be as obtained at the time of or prior to the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;Closing.
(h) any certificate signed by any officer of the Authority and delivered No litigation is pending or, to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which threatened against the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;
(o) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale issuance or delivery of any of the Bonds, Bonds or the payment application of proceeds of the Bonds as provided in the Loan and Trust Agreement or the collection of any amounts revenues pledged or to be pledged to pay under the principal of Bond Resolution and interest on the BondsLoan and Trust Agreement, or (ii) in any way contesting or affecting any authority for the issuance of the Bonds or the validity of the Bonds, the Legal Documents or Bond Resolution, the consummation of the transactions contemplated thereby or herebyLoan and Trust Agreement, or this Purchase Agreement, or (iii) in any way contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes existence or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses .
(i) through (iv) of this clause (o);
(p) The State has been designated as a “recovery zone” for purposes of the Rule, American Recovery and Reinvestment Tax Act of 2009 and the volume cap authorization to the State has been delegated and allocated from the Vermont counties to the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except State. The Bonds have been designated as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken “recovery zone facility bonds” pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the BondsInternal Revenue Service Notice 2009-50.
Appears in 1 contract
Samples: Bond Purchase Agreement (Central Vermont Public Service Corp)
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority hereby represents, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.warrants and agrees as follows:
(a) the The Authority is has been duly and validly created as a joint exercise of powers authority pursuant to the Act and the Joint Powers Agreement, and is a duly organized and validly existing public entity under and pursuant to the laws of the State, with State of California.
(b) The Authority has full legal right, power and authority to issue(i) enter into this Bond Purchase Agreement, sell (ii) sell, issue and deliver the Bonds to the Underwriters pursuant to Underwriter under the Indenture, and execute, deliver and perform its obligationsAct, as provided herein; and (iii) carry out and consummate the case may be, under transactions contemplated by this Bond Purchase Agreement.
(c) To the best knowledge of the officer of the Authority executing this Bond Purchase Agreement, the Bondsafter due inquiry, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate executed by the Authority and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each of the aforesaid documents and the Preliminary Official Statement and the Official Statement, and compliance with the provisions of the Bonds and the Legal Documents will not materially conflict with or constitute a breach of or default under any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and there is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;
(o) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, equity before or by any court, government agency, public board or body, is pending or to the best of threatened against the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning affecting the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority its officers to their respective offices; (ii) affecting, contesting or affecting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any the Bonds or contesting or affecting, as to the Authority, the validity or enforceability of the BondsAct, the Bonds or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bondsthis Bond Purchase Agreement, or in any way contesting or affecting the validity of the Bonds, the Legal Documents or challenging the consummation of the transactions contemplated thereby hereby.
(d) The Authority will furnish such information, execute such instruments and take such other action in cooperation with the Underwriter as the Underwriter may reasonably request in order (i) to qualify the Bonds for offer and sale under the Blue Sky or hereby, or contesting the exclusion other securities laws and regulations of such states and other jurisdictions of the interest on United States as the Underwriter may designate, and (ii) to determine the eligibility of the Bonds from gross income for federal income tax purposes investment under the laws of such states and other jurisdictions, and will use its best efforts to continue such qualifications in effect so long as required for the distribution of the Bonds; provided, however, that the Authority will not be required to qualify to do business in connection with any such qualification or contesting determination in any jurisdiction or take any other action which is inconsistent with or violates the powers Joint Powers Agreement.
(e) Any certificate signed by any officer of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating and delivered to the Authority; or (iv) contesting Underwriter will be deemed a representation by the completeness or accuracy of Authority to the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted Underwriter as to state any material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bonds.
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority represents, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.warrants, and agrees that:
(a) The Authority is a public body corporate and politic created and existing under the Act and, unless otherwise required by law, shall maintain its corporate existence so long as the Series 2023B Bond is outstanding. Under the provisions of the Act, the Authority is a joint exercise authorized to enter into and carry out the transactions contemplated by this Contract, the Bond Resolution, the issuance of powers authority duly organized the Series 2023B Bond and validly existing under and pursuant the financing of the Project;
(b) There is no litigation or proceeding pending, or to the laws knowledge of the StateAuthority threatened, against the Authority which would have a material adverse effect on the right of the Authority to execute this Contract or the ability of the Authority to comply with full legal rightany of its obligations under the Series 2023B Bond, power and authority to issue, sell and deliver the Bonds to the Underwriters pursuant to the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase AgreementContract, the Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate Bond Resolution or any other documents contemplated to be executed by the Authority in connection with the issuance and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each delivery of the aforesaid documents Series 2023B Bond;
(c) This Contract, upon execution of the same, will constitute the legal, valid and binding obligation of the Preliminary Official Statement and the Official StatementAuthority in accordance with its terms, and compliance with performance by the Authority of its obligations hereunder will not violate, or result in a breach of any of the provisions of the Bonds and the Legal Documents will not materially conflict with of, or constitute a breach of or default under under, any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;by which the Authority is bound; and
(bd) At the resolution adopted time of the execution of this Contract, neither the Contract nor any of the amounts to be received by the Authority at a regularly scheduled meeting on hereunder have been assigned, 2015 approving pledged or hypothecated in any way. Except as herein and authorizing in the Bond Resolution provided, the Authority will not encumber any part of its interest in moneys paid to the Authority or the holder of the Series 2023B Bond (the “Holder”), by the City under this Contract (the “Revenues”) or its rights under this Contract. The pledge made of the Revenues payable under this Contract upon issuance of the Bonds Series 2023B Bond will constitute a first and prior pledge of and lien on said Revenues on a parity with the execution and delivery by pledge or lien for the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting payment of the Authority called Series 2023A Bond and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughoutany Parity Bonds (defined below) hereafter issued, and is in full force and effect and has not been amended or repealed;
(c) when delivered said pledge shall at no time be impaired by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective termsRevenues shall not otherwise be pledged, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;
(o) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bondsso provided.
Appears in 1 contract
Samples: Intergovernmental Contract
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.
(a) the Authority is a joint exercise of powers authority duly organized and validly existing under and pursuant to the laws of the State, with full legal right, power and authority to issue, sell and deliver the Bonds to the Underwriters pursuant to the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase Agreement, the Bonds, the Site Lease, the Facility Facilities Lease, the Indenture[Tax Certificate and Agreement], dated [ ], 2017 (the Escrow Agreement “Tax Certificate”), executed and the Tax and Nonarbitrage Certificate executed delivered by the Authority and the City (the “Tax Certificate” and collectively with this Bond Purchase AgreementCity, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the IndentureIndenture (collectively, the “Authority Legal Documents”) and to carry out and consummate all transactions on its part contemplated by each of the aforesaid documents and the Preliminary Official Statement and the Final Official Statement, and compliance by the Authority with the provisions of the Bonds and the Authority Legal Documents will not materially conflict with or constitute a breach of or default under any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by the Board of Commissioners of the Authority at a regularly scheduled meeting on [ ], 2015 201[ ] approving and authorizing authorizing, among other things, the issuance of the Bonds Bonds, and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, Facilities Lease and the Indenture, the Escrow Agreement and the Tax Certificate resolution adopted by the Board of Commissioners of the Authority on [ ], 201[ ] approving and authorizing the execution and delivery of the Preliminary Official Statement and the Final Official Statement (collectively, the “Authority ResolutionResolutions”) was were duly adopted at a meeting meetings of the Authority 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 is are in full force and effect and has have not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered by, and will constitute the valid and binding limited obligations of of, the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the issuance of the Bonds and the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, Authority Legal Documents and when fully executed and delivered, the Bonds and the Authority Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Final Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Authority Legal Documents, and no event of default thereunder has occurred and no event, is continuing which, with the passage of time or giving of notice, or both, would would, to the knowledge of the Authority, constitute an event of default thereunder has occurred and is continuingthereunder;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Bonds and the Authority Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any duly authorized officer of the Authority and delivered to the Underwriters pursuant to the Authority Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the sametherein;
(i) to the best knowledge of the Authority, Authority as of the date hereof and as of the Closing Datehereof, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Authority Legal Documents, the Preliminary Official Statement or the Final Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement to state a material fact necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Final Official Statement is, and at all times subsequent to the date of the Final Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Final Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative and the City promptly of any proposal to amend or supplement the Final Official Statement and will not effect or consent to any such amendment or supplement without the consent of the RepresentativeRepresentative and the City, which consent consents will not be unreasonably delayed or withheld. The , and the Authority will advise the Representative and the City promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Final Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Final Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, instrument which breach or default would materially adversely affect the security of for the Bonds or the Authority’s performance under the Authority Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Final Official Statement, the authorization, execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate Authority Legal Documents and the Bonds and compliance by the Authority with the provisions of each of the Legal Documents and the Bonds such agreements or instruments do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Authority Legal Documents;
(o) as of the time of acceptance hereof and the Closing, except as disclosed in the Preliminary Official Statement and the Final Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, notice of which has been given to the Authority, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Vice Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Authority Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal Federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Final Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Final Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority Authority, is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o)paragraph;
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Final Official Statement, the Authority has not previously within the last five years failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bonds.
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority hereby represents, “to warrants and agrees with the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.Underwriters as follows:
(a) the The Authority is a joint exercise of powers authority duly organized organized, existing and validly existing under and operating pursuant to the laws of the StateState of California, including Articles 1 through 4 (commencing with Section 6500) of Chapter 5, Division 7 of the California Government Code, with the full legal right, power and authority to issue, sell execute and deliver the Bonds to the Underwriters pursuant to the IndentureOfficial Statement, and executeto enter into this Bond Purchase Agreement and the Legal Documents to which the Authority is a party;
(b) By all necessary official action of the Authority prior to or concurrent with the acceptance hereof, deliver the Authority has duly authorized and perform approved the execution and delivery of, and the performance by the Authority of the obligations on its obligationspart contained in, as the case may beLegal Documents, under the Official Statement and this Bond Purchase Agreement, and the Bondsconsummation by it of all other transactions contemplated by the Official Statement and this Bond Purchase Agreement;
(c) The Authority represents to the Underwriters that the Preliminary Official Statement relating to the 2013B Bonds (including the cover page, the Site Leaseintroduction and all appendices thereto, the Facility Lease"Preliminary Official Statement"), the Indenturedated , the Escrow Agreement and the Tax and Nonarbitrage Certificate executed 2013, has been "deemed final" by the Authority as of its date within the meaning of paragraph (b)(1) of Rule 15c2-12, except for the omission of some or all of such information the omission of which is permitted under Rule 15c2-12. The Preliminary Official Statement as of its date and as of the City date hereof does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(the “Tax Certificate” d) The Legal Documents and collectively with this Bond Purchase Agreement, when duly executed and delivered by the Site Leaseparties thereto, will constitute valid and binding obligations of the Facility LeaseAuthority, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws affecting the Assignment Agreementenforcement of creditors' rights in general and to the application of equitable principles, whether or not equitable principles are sought, and to the Escrow exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State, including the City and the Authority;
(e) The execution and delivery of the Legal Documents, this Bond Purchase Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each of the aforesaid documents and the Preliminary Official Statement and by the Official StatementAuthority, and compliance with the provisions of on the Bonds Authority's part contained herein and the Legal Documents therein, will not materially in any material respect conflict with or constitute a breach of or default under any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States subject or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement judgment or other instrument decree to which the Authority is a party or is otherwise subject (or any and of its officers in their respective capacities as such) is subjectwhich the Authority has knowledge), or by which it or any of its properties is bound; nor will any such authorization, execution, delivery delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or the properties or assets of the Authority under the terms of any such law, regulation administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as may be provided by the Bonds and in the Legal DocumentsDocuments and disclosed in the Official Statement;
(of) Except as of the time of acceptance hereof and the Closing, except as is otherwise disclosed in Preliminary Official Statement and the Official Statement, the Authority is not in any material respect in breach of, or in default under, any applicable law or administrative regulation of the State of California or the United States of America or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the Authority is a party or is otherwise subject or any judgment or decree to which the Authority is a party or is otherwise subject (and of which the Authority has knowledge) that would have a materially adverse effect on the transactions contemplated hereby or by the Official Statement or on the Authority's liabilities and obligations under the Legal Documents to which it is a party, and no event has occurred and is continuing that, with the passage of time or the giving of notice or both, would constitute a default or an event of default under any such instrument that would have a materially adverse effect on the transactions contemplated hereby or by the Official Statement or on the Authority's liabilities and obligations under the Legal Documents to which it is a party;
(g) Except as otherwise disclosed in the Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government governmental agency, public board or body, that has been served on the Authority and that is now pending or or, to the best knowledge of the official executing this Bond Purchase Agreement on the Authority’s knowledge after reasonable investigation's behalf, threatened (i) against the Authority in any way questioning material respect affecting the corporate Project, the existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority its officers to their respective offices; (ii) affecting, contesting offices or seeking to prohibit, restrain or enjoin the issuance, sale sale, or delivery of any the 2013B Bonds or the receipt of the BondsBase Rental Payments or the Additional Payments, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity or enforceability of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes this Bond Purchase Agreement or contesting the powers of the Authority or its authority to issue enter into, adopt or perform its obligations under any of the Bonds; (iii) which may result in any material adverse change relating to the Authority; foregoing, or (iv) contesting the completeness or accuracy of the Preliminary Official Statement Statement, or any amendment or supplement thereto, wherein an unfavorable decision, ruling or finding would materially adversely affect the validity or enforceability of the Legal Documents or this Bond Purchase Agreement;
(h) The Authority will furnish such information, execute such instruments and take such other action in cooperation with the Underwriters as the Underwriters may reasonably request in order (i) to qualify the 2013B Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions of the United States (collectively, "Blue Sky laws") as the Underwriters may designate and (ii) to determine the eligibility of the 2013B Bonds for investment under the laws of such states and other jurisdictions, and will use its best efforts to continue such qualification in effect so long as required for distribution of the 2013B Bonds (at the sole expense of the Underwriters); provided, however, that in no event shall the Authority be required to take any action that would subject it to general or unlimited service of process in any jurisdiction in which it is not now so subject; and provided, further, that notwithstanding the foregoing, nothing in this Bond Purchase Agreement shall impose any past or future requirement upon the Authority, or constitute a representation or warranty by the Authority, with respect to compliance with any Blue Sky laws;
(i) As of the date thereof, except for statements regarding DTC, as to which the Authority makes no representation or warranty, the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained does not contain any untrue statement of a material fact or omitted omit to state any a material fact required necessary to be stated therein make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) If between the date hereof and the date that is 25 days after the End of the Underwriting Period (as such term is hereinafter defined) for the 2013B Bonds, an event occurs that would cause the information contained in the Official Statement, as then supplemented or amended, to contain an untrue statement of a material fact or to omit to state a material fact necessary to make such information therein, in the light of the circumstances under which they were made, not misleading, the Authority will notify the Representative, and, if in the opinion of the Authority, the Representative or their respective counsel, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the Authority will forthwith prepare and furnish to the Underwriters (at the expense of the Authority) a reasonable number of copies of an amendment of or supplement to the Official Statement (in form and substance satisfactory to counsel for the Authority and counsel for the Underwriters) that will amend or supplement the Official Statement so that it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. For the purposes of this subsection, nor, to between the best knowledge date hereof and the date that is 25 days after the End of the Underwriting Period for the 2013B Bonds, the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of will furnish such information with respect to itself as the nature described in clauses (i) through (iv) of this clause (o)Representative may from time to time reasonably request;
(pk) for purposes If the information contained in the Official Statement is amended or supplemented pursuant to paragraph (j) hereof, at the time of the Ruleeach supplement or amendment thereto, the Authority has heretofore deemed final will represent and warrant that the Preliminary portions of the Official Statement prior to its use so supplemented or amended (including any financial and distribution by the Underwritersstatistical data contained therein), except for statements regarding DTC, as to which the Authority does not make any representation or warranty, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information specifically permitted to be omitted by paragraph (b)(1) therein, in the light of the Rulecircumstances under which they are made, not misleading; and
(ql) except as otherwise disclosed in As used herein and for the Preliminary Official Statement purposes of the foregoing (and for purposes of Section 3 below), the term "End of the Underwriting Period" for the 2013B Bonds shall mean the Closing Date unless the Authority and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant City shall have been notified in writing to the Rule. All representations, warranties and agreements of contrary by the Authority shall remain operative and in full force and effect, regardless of any investigations made by Representative on or on prior to the Underwriters’ behalf, and shall survive the delivery of the BondsClosing Date.
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority represents, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.warrants, and agrees that:
(a) The Authority is a public body corporate and politic created and existing under the Act and, unless otherwise required by law, shall maintain its corporate existence so long as any Bond is Outstanding. Under the provisions of the Act, the Authority is a joint exercise authorized to enter into and carry out the transactions contemplated by this Contract and the Resolution;
(b) The Authority and the City heretofore have agreed that the Authority will provide financing and services for the undertakings described in the preamble to this Contract by the issuance of powers authority duly organized and validly existing under and pursuant the Bond as set forth in the Resolution;
(c) There is no litigation or proceeding pending, or to the laws knowledge of the StateAuthority threatened, against the Authority or against any other party which would have a material adverse effect on the right of the Authority to execute this Contract or the ability of the Authority to comply with full legal rightany of its obligations under the Bond, power and authority to issue, sell and deliver the Bonds to the Underwriters pursuant to the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase AgreementContract, the BondsResolution, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate or any other documents contemplated to be executed by the Authority in connection with the issuance and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each delivery of the aforesaid documents and Bond;
(d) This Contract, upon execution of the Preliminary Official Statement and same, will constitute the Official Statementlegal, valid, and compliance binding obligation of the Authority in accordance with its terms, and performance by the Authority of its obligations hereunder will not violate, or result in a breach of any of the provisions of the Bonds and the Legal Documents will not materially conflict with of, or constitute a breach of or default under under, any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by which the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generallybound;
(e) at The Authority has not made, done, executed, or suffered, and warrants that it will not make, do, execute, or suffer, any act or thing whereby the date hereof and as of Authority’s or the Closing Date, City’s title to or interest in the Project will or may be impaired or encumbered in any manner except as otherwise disclosed permitted herein and the Resolution and except for acts or things done or permitted by the City; and
(f) Except as herein and in the Preliminary Official Statement and the Official StatementResolution provided, the Authority will be in compliance with the covenants and agreements contained not encumber any part of its interest in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time Project or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute Revenues payable under this Contract or its rights under this Contract. The pledge made in the Resolution of the Revenues payable under this Contract constitutes a condition precedent to the due performance first and prior pledge of and lien on said Revenues and said pledge shall at no time be impaired by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will Revenues shall not otherwise be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;
(o) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bondspledged.
Appears in 1 contract
Samples: Intergovernmental Contract
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority hereby represents, “to warrants and agrees with the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.Underwriters that:
(a) the The Authority has been duly created and is a joint exercise of powers authority duly organized and validly existing under and pursuant to the laws of the StateState and has the power to issue the Series 2018B Bonds pursuant to the Act, with the Bond Resolution and the Indenture.
(b) The Authority has full legal right, power and authority under the Constitution and the laws of the State to cause the collection of the Sales Tax, to adopt the Bond Resolution, to enter into the Legal Documents and this Bond Purchase Agreement, and to sell, issue and deliver the Series 2018B Bonds to the Underwriters as provided herein; the Authority has full legal right, power and authority to issue, sell and deliver the Bonds to the Underwriters pursuant to the Indenture, and execute, deliver and perform its obligationsobligations under the Bond Resolution, as the case may beSeries 2018B Bonds, under the Legal Documents and this Bond Purchase Agreement, the Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate executed by the Authority and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all the transactions contemplated thereby and hereby and by each of the aforesaid documents and Official Statement; except as described in the Preliminary Official Statement and the Official Statement, the Authority has complied with, or will at the Closing Time be in compliance with, in all respects material to this transaction, the Constitution, the Act, the Ordinance and compliance with the provisions laws of the Bonds State, and the terms of the Bond Resolution, the Series 2018B Bonds, the Legal Documents will not materially conflict with or constitute a breach of or default under any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;.
(c) when delivered Except as described in the Preliminary Official Statement and the Official Statement, by all necessary official action, the Authority has duly adopted (i) Ordinance 88-01, which was approved by a majority of voters in the County on November 8, 1988 and paid for extended by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations more than a two thirds vote of the Authority voters in conformity withthe County voting on such extension on November 2, 2004 and entitled to (ii) Ordinance 06-01 (the benefit “Ordinance”), which amended and security ofrestated Ordinance 88-01, the Indenture;as previously amended.
(d) By all necessary official action, the Authority has duly adopted the Bond Resolution, has duly authorized the preparation and distribution of the Preliminary Official Statement and the preparation, execution and delivery of the Official Statement, has duly authorized and approved the execution and delivery of, and the performance of its obligations under, the Series 2018B Bonds, this Bond Purchase Agreement and the Legal Documents, and the consummation by it of all other transactions contemplated by this Bond Purchase Agreement, the Site LeaseBond Resolution, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents. When executed and delivered by their respective parties, the Legal Documents and this Bond Purchase Agreement (assuming due authorization, execution and delivery by and enforceability against the other respective parties thereto, ) will be in full force and effect and each will constitute the legally legal, valid and binding agreements or obligations of the Authority Authority, enforceable in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting limiting creditors rights generally, the application of equitable principles, the exercise of judicial discretion and the limitations on legal remedies against public entities in the State.
(e) The Series 2018B Bonds, when issued, authenticated and delivered in accordance with the Bond Resolution and the Indenture, and sold to the Underwriters as provided herein, will constitute legal, valid and binding obligations of the Authority, enforceable in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;, the application of equitable principles, the exercise of judicial discretion and the limitations on legal remedies against public entities in the State, and will be entitled to the benefits of the laws of the State, the Indenture and the Bond Resolution.
(ef) at the date hereof and as All consents, approvals, authorizations, orders, licenses or permits of any governmental authority, legislative body, board, agency or commission having jurisdiction of the Closing Datematter, that are required for the due authorization by, or that would constitute a condition precedent to or the absence of which would materially adversely affect the issuance, delivery or sale of the Series 2018B Bonds and the execution, delivery of and performance of the Legal Documents by the Authority have been duly obtained (except for such approvals, consents and orders as otherwise disclosed may be required under the Blue Sky or securities laws of any state in connection with the offering and sale of the Series 2018B Bonds, as to which no representation is made).
(g) Except as described in the Preliminary Official Statement and the Official Statement, the Authority will be is not in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be respect in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or of the United States, States or any applicable agency or instrumentality of either or any judgment or decree or any trust loan agreement, loan agreementindenture, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or to which the Authority or any of its property or assets is otherwise subjectsubject (including, without limitation, the Bond Resolution and the Legal Documents), and no event has occurred and is continuing which, which with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect ; and the security adoption of the Bond Resolution, the issuance, delivery and sale of the Series 2018B Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds Legal Documents and compliance with the provisions of each of the Legal Documents Authority’s obligations therein and the Bonds do not and herein will not in any material respect conflict with with, violate or constitute result in a breach of or constitute a default under under, any applicable constitutional provision, law or law, administrative rule or regulation of the State or the United States or any applicable regulation, judgment, decree, license, permit, trust agreement, loan agreement, bondindenture, noteagreement, resolutionmortgage, ordinance agreement lease or other instrument to which the Authority (is a party or to which the Authority or any of its officers in their respective capacities as such) property or assets is otherwise subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its the property or assets or properties of the Authority or under the terms of any such law, regulation or instrumentinstruments, except as may be provided by the Bonds Bond Resolution and the Legal Documents;.
(oh) as As of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statementdate hereof, no action, suit, proceeding, inquiry or investigation, investigation at law or in equity, equity before or by any court, government agency, public board or body, is pending or or, to the best of the Authority’s knowledge after reasonable investigationknowledge, threatened against the Authority: (i) in any way questioning affecting the corporate existence of the Authority or in any way challenging the respective powers of the several offices or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer officials of the Authority to their respective such offices; (ii) affecting, contesting affecting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Series 2018B Bonds, or the payment application of the proceeds of the sale of the Series 2018B Bonds, the proceedings authorizing and approving the Sales Tax, the levy or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or Sales Tax; (iii) in any way contesting or affecting affecting, as to the Authority, the validity or enforceability of the Act, the proceedings authorizing the Sales Tax, the Bond Resolution, the Series 2018B Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or this Bond Purchase Agreement; (iv) in any way contesting the powers of the Authority or its authority with respect to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; issuance or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Series 2018B Bonds., the adoption of the Bond Resolution, or the execution and delivery of the Legal Documents or this Bond Purchase Agreement, or contesting the power or authority to levy the Sales Tax;
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority hereby represents, “to warrants and agrees with the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.Underwriter as follows:
(a) The Authority is, and will be on the Authority is Closing Date, a joint exercise powers agency of powers authority duly the State of California organized and validly existing under and operating pursuant to the laws of the State, State of California with the full legal right, power and authority to issueissue the Bonds pursuant to the Act, sell to execute and deliver the Bonds Official Statement and to enter into the Underwriters pursuant to the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Installment Purchase Agreement, the Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement Trust Indenture and the Tax and Nonarbitrage Certificate executed by the Authority and the City this Purchase Contract (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenturecollectively, the “Legal Authority Documents”) and, when executed and to carry out delivered by the respective parties thereto, the Authority Documents will constitute the legal, valid and consummate all transactions contemplated by each binding obligations of the aforesaid documents and Authority in accordance with their respective terms.
(b) By all necessary official action of the Authority prior to or concurrently with the acceptance hereof, the Authority has duly approved the distribution of the Preliminary Official Statement and the execution, delivery and distribution of the Official Statement, and compliance with has duly authorized and approved the provisions execution and delivery of, and the performance by the Authority of the Bonds obligations on its part contained in, the Authority Documents and the Legal Documents will consummation by it of all other transactions contemplated by the Preliminary Official Statement and the Authority Documents.
(c) The Authority is not materially conflict with or constitute a in breach of or default under any applicable constitutional provision, law, law or administrative regulation, court order or consent decree regulation to which it is subject or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be to which the Authority or any of its property or assets is otherwise subject;
(b) , and no event has occurred and is continuing which with the resolution adopted by passage of time or the Authority at giving of notice, or both, would constitute such a regularly scheduled meeting on , 2015 approving default or event of default in any material respect under any such instrument; and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in Documents and compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of provisions on the Authority’s knowledgepart contained herein and therein, the Authority is not and will not be in any material respect conflict with or constitute a breach of or in default under any applicable constitutional provisionlaw, law or administrative rule or regulation of the State or the United Statesregulation, or any applicable judgment or decree or any trust agreementjudgment, decree, loan agreement, indenture, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or the properties or assets of the Authority under the terms of any such law, regulation administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as may be provided by in the Bonds and Trust Indenture or the Legal Documents;Installment Purchase Agreement.
(od) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government governmental agency, public board or body, is pending or or, to the best knowledge of the Authority’s knowledge Authority after reasonable investigation, threatened (i) against the Authority in any way questioning material respect affecting the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority its officers to their respective offices; (ii) affecting, contesting offices or affecting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any the Bonds or contesting or affecting, as to the Authority, the validity or enforceability of the Bonds, Bonds or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Authority Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue enter into, adopt or perform its obligations under any of the Bonds; (iii) which may result foregoing, or contesting in any material adverse change relating to the Authority; or (iv) contesting way the completeness or accuracy of the Preliminary Official Statement or the Official Statement Statement, or any amendment or supplement thereto, wherein an unfavorable decision, ruling or amendment thereto finding would materially adversely affect the validity or asserting enforceability of the Authority Documents.
(e) All authorizations, approvals, licenses, permits, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the Authority of its obligations in connection with the issuance of the Bonds under the Trust Indenture have been duly obtained, except for such approvals, consents and orders as may be required under the Blue Sky or securities laws of any state in connection with the offering and sale of the Bonds; and, except as described in or contemplated by the Official Statement, all authorizations, approvals, licenses, permits, consents and orders of any governmental authority, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the Authority of its obligations under the Authority Documents have been duly obtained.
(f) The Authority will furnish such information, execute such instruments and take such other action in cooperation with the Underwriter as the Underwriter may reasonably request in order (i) to qualify the Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions of the United States as the Underwriter may designate and (ii) to determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions, and will use its best efforts to continue such qualification in effect so long as required for distribution of the Bonds; provided, however, that in no event shall the Authority be required to take any action which would subject it to service of process in any jurisdiction in which it is not now so subject.
(g) As of its date and the date hereof, the Preliminary Official Statement or (excluding information concerning DTC and the Official Statement contained book-entry system as to which no representation is made) did not, except as to the information permitted to be omitted by Rule 15c2-12, contain any untrue statement of a material fact or omitted omit to state any a material fact required necessary to be stated therein make the statements therein, in light of the circumstances under which they were made, not misleading.
(h) As of the date thereof and at all times subsequent thereto to and including the date which is 25 days following the End of the Underwriting Period (as such term is hereinafter defined) for the Bonds, the Official Statement (excluding information concerning DTC and the book- entry system and the information under the caption “UNDERWRITING” (collectively, the “Excluded Information”)) as to which no representation is made) did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(i) If between the date hereof and the date which is 25 days after the End of the Underwriting Period for the Bonds, an event occurs which might or would cause the information contained in the Official Statement, as then supplemented or amended, to contain an untrue statement of a material fact or to omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Authority will notify the Underwriter, and, if in the opinion of the Authority, the Underwriter or their respective counsel, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the Authority will forthwith prepare and furnish to the Underwriter (at the expense of the Authority, except in the case of supplements or amendments to the Excluded Information) a reasonable number of copies of an amendment of or supplement to the Official Statement (in form and substance satisfactory to the Underwriter) which will amend or supplement the Official Statement so that it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Official Statement is delivered to prospective purchasers, not misleading. For the purposes of this subsection, between the date hereof and the date which is 25 days after the End of the Underwriting Period for the Bonds, the Authority will furnish such information with respect to itself as the Underwriter may from time to time reasonably request.
(j) If the information contained in the Official Statement is amended or supplemented pursuant to paragraph (i) of this Section 4, at the time of each supplement or amendment thereto and (unless subsequently again supplemented or amended pursuant to such paragraph) at all times subsequent thereto up to and including the date which is 25 days after the End of the Underwriting Period for the Bonds, the portions of the Official Statement so supplemented or amended (other than the Excluded Information) will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) After the Closing Date, nor, the Authority will not participate in the issuance of any amendment of or supplement to the best knowledge Official Statement to which, after being furnished with a copy, the Underwriter shall reasonably object in writing.
(l) As used herein and for the purposes of the Authority is there any basis for any actionforegoing, suit, proceeding, inquiry or investigation the term “End of the nature described in clauses Underwriting Period” for the Bonds shall mean the earlier of (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of Closing Date unless the Authority shall remain operative have been notified in writing to the contrary by the Underwriter on or prior to the Closing Date, or (ii) the date on which the End of the Underwriting Period for the Bonds has occurred under Rule 15c2-12; provided, however, that the Authority may treat as the End of the Underwriting Period for the Bonds the date specified as such in a notice from the Underwriter stating the date which is the End of the Underwriting Period.
(m) The Authority will apply, or cause the application of, the proceeds of the Bonds in accordance with the Installment Purchase Agreement and in full force and effect, regardless the Trust Indenture.
(n) Any certificate signed by any authorized official of any investigations made by or on the Underwriters’ behalfAuthority, and shall survive delivered to the Underwriter in connection with the delivery of the Bonds, shall be deemed a representation and warranty by the Authority to the Underwriter as to the statements made therein.
Appears in 1 contract
Samples: Purchase Contract
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority represents, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.warrants, and agrees that:
(a) The Authority is a public body corporate and politic created and existing under the Act and, unless otherwise required by law, shall maintain its corporate existence so long as any Bonds are Outstanding. Under the provisions of the Act, the Authority is a joint exercise authorized to enter into and carry out the transactions contemplated by this Contract and the Resolution;
(b) The Authority and the City heretofore have agreed that the Authority will provide financing and services for the undertakings described in the preamble to this Contract by the issuance of powers authority duly organized and validly existing under and pursuant the Bonds as set forth in the Resolution;
(c) There is no litigation or proceeding pending, or to the laws knowledge of the StateAuthority threatened, against the Authority or against any other party which would have a material adverse effect on the right of the Authority to execute this Contract or the ability of the Authority to comply with full legal right, power and authority to issue, sell and deliver the Bonds to the Underwriters pursuant to the Indenture, and execute, deliver and perform any of its obligations, as the case may be, obligations under this Bond Purchase Agreement, the Bonds, the Site Leasethis Contract, the Facility LeaseResolution, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate or any other documents contemplated to be executed by the Authority in connection with the issuance and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each delivery of the aforesaid documents and Bonds;
(d) This Contract, upon execution of the Preliminary Official Statement and same, will constitute the Official Statementlegal, valid, and compliance binding obligation of the Authority in accordance with its terms, and performance by the Authority of its obligations hereunder will not violate, or result in a breach of any of the provisions of the Bonds and the Legal Documents will not materially conflict with of, or constitute a breach of or default under under, any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by which the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generallybound;
(e) at The Authority has not made, done, executed, or suffered, and warrants that it will not make, do, execute, or suffer, any act or thing whereby the date hereof and as of Authority’s or the Closing Date, City’s title to or interest in the Project will or may be impaired or encumbered in any manner except as otherwise disclosed permitted herein and the Resolution and except for acts or things done or permitted by the City; and
(f) Except as herein and in the Preliminary Official Statement and the Official StatementResolution provided, the Authority will be in compliance with the covenants and agreements contained not encumber any part of its interest in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time Project or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute Revenues payable under this Contract or its rights under this Contract. The pledge made in the Resolution of the Revenues payable under this Contract constitutes a condition precedent to the due performance first and prior pledge of and lien on said Revenues and said pledge shall at no time be impaired by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will Revenues shall not otherwise be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;
(o) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bondspledged.
Appears in 1 contract
Samples: Intergovernmental Contract
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority represents, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.warrants and agrees as follows:
(a) the The Authority is a joint exercise of powers authority entity duly organized and validly existing under and pursuant to the laws of the StateState of California pursuant to a Joint Exercise of Powers Agreement between the City and the Milpitas Housing Authority, with dated as of March 1, 2016 (the “JPA Agreement”).
(b) The Authority has full legal right, power and authority (i) to issueenter into, execute and deliver the Authority Documents and to sell and deliver the Bonds to the Underwriters pursuant to the Indenture, Underwriter as provided herein; and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase Agreement, the Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate executed by the Authority and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”ii) and to carry out and consummate all the transactions on its part contemplated by each the Authority Documents and the Official Statement.
(c) By all necessary official action, the Authority has duly authorized and approved the issuance of the aforesaid documents Bonds and the Authority Documents, has duly authorized and approved the Preliminary Official Statement and the Official StatementStatement and approved the distribution thereof (including in electronic form), has duly authorized and approved the execution and delivery of, and compliance the performance by the Authority of the obligations in connection with the provisions execution and delivery of the Bonds on its part contained in the Bonds and the Legal Authority Documents, and the consummation by it of all other transactions contemplated by the Authority Documents in connection with the execution and delivery of the Bonds, all pursuant to the Authority Resolution adopted at a meeting duly called and held in accordance with the requirements of all applicable laws and at which a quorum of the board members of the Authority was continuously present. The Authority Resolution has not been modified, amended or rescinded since the date of its adoption and each Authority Document is the valid and binding obligation of the Authority. When executed and delivered by the Authority, the Authority Documents will constitute legal, valid and binding agreements of the Authority, enforceable against the Authority in accordance with their respective terms except as enforcement may be limited by bankruptcy, insolvency and other laws affecting the enforcement of creditors’ rights and remedies in general, or by the application of equitable principles if equitable remedies are sought.
(d) The Authority is not materially conflict with or constitute a in any material respect in breach of or default under any applicable constitutional provision, lawlaw or administrative regulation of the State of California or of the United States, administrative regulationor any agency or instrumentality of either, court order or consent decree or any applicable judgment or decree decree, or the JPA Agreement, or any loan agreement, indenture, bond, note, resolution, indentureagreement (including, agreement without limitation, the Authority Documents) or other instrument to which the Authority is a party which breach or default has or may be otherwise subject;
(b) have an adverse effect on the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting ability of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of perform its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, which with the passage of time or the giving of notice, or both, would constitute such a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement Bonds and the Tax Certificate and the Bonds Authority Documents, and compliance with the provisions of each of on the Legal Documents and the Bonds do not and Authority’s part contained therein, will not conflict in any material way with or constitute a material breach of or a material default under any applicable constitutional provision, law or law, administrative rule or regulation of the State or the United States or any applicable regulation, judgment, decree, license, permit, trust agreement, loan agreement, bondindenture, Bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; a party nor will any such authorization, execution, delivery 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 its the property or assets or properties of the Authority or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Authority Documents;.
(oe) as All authorizations, approvals, licenses, permits, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction of the time matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of acceptance hereof which would materially adversely affect the due performance by, the Authority of its obligations in connection with the execution and delivery of the ClosingBonds under the Authority Documents or the consummation by it of all other transactions contemplated by the Authority Documents have been duly obtained, except for such approvals, consents and orders as disclosed may be required under the Blue Sky or securities laws of any state in Preliminary Official Statement connection with the offering and sale of the Bonds; except as described in or contemplated by the Official Statement, all authorizations, approvals, licenses, permits, consents and orders of any governmental authority, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the Authority of its obligations under the Bonds and the Authority Documents have been duly obtained.
(f) The Bonds, when executed, issued, authenticated and delivered in accordance with the Indenture, and sold to the Underwriter as provided herein, will be validly executed and outstanding obligations, entitled to the benefits of the Indenture, and upon such execution and delivery, the Indenture will provide, for the benefit of the Owners from time to time of the Bonds, the legally valid and binding security interest it purports to create.
(g) There is no action, suit, proceeding, inquiry or investigation, notice of which has been duly served on the Authority, at law or in equity, equity before or by any court, government agency, public board or body, is pending or to the best knowledge of the Authority’s knowledge after reasonable investigationofficer of the Authority executing this Bond Purchase Agreement, threatened (i) in any way questioning against the corporate Authority, affecting the existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority its officers to their respective offices; (ii) affecting, contesting or affecting or seeking to prohibit, restrain or enjoin the sale, issuance, sale execution or delivery of any of the BondsBonds pursuant to the Indenture, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting as to the Authority the validity or enforceability of the Bonds, the Legal Documents Bonds or the consummation of the transactions contemplated thereby or herebyAuthority Documents, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement Statement, or contesting the powers of the Authority to cause the execution and delivery of the Bonds, or the execution and delivery or adoption by the Authority of the Authority Documents, or in any supplement way contesting or amendment thereto challenging the consummation of the transactions contemplated hereby or asserting thereby; nor, to the best knowledge of the Authority, is there any basis for any such action, suit, proceeding, inquiry or investigation, wherein an unfavorable decision, ruling or finding would materially adversely affect the validity of the Bonds or the authorization, execution, delivery or performance by the Authority of the Bonds or the Authority Documents.
(h) The Authority will furnish such information, execute such instruments and take such other action in cooperation with the Underwriter as the Underwriter may reasonably request in order (i) to qualify the Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions of the United States as the Underwriter may designate and (ii) to determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions, and will use its best efforts to continue such qualifications in effect so long as required for the distribution of the Bonds; provided, however, that the Authority shall not be required to execute a general or special consent to service of process or qualify to do business in connection with any such qualification or determination in any jurisdiction, and the Underwriter shall bear all costs in connection with the foregoing.
(i) As of the date thereof, the Preliminary Official Statement or did not, except for the Official Statement contained omission of certain information permitted to be omitted in accordance with the Rule, contain any untrue statement of a material fact or omitted omit to state any a material fact required necessary to be stated make the statements therein, in the light of the circumstances under which they were made, not misleading.
(j) At the time of the Authority’s acceptance hereof, and (unless an event occurs of the nature described in paragraph (l) of this Section 7) at all times subsequent thereto up to and including the Closing Date, the Official Statement (other than information therein provided by the Underwriter) did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) If the Official Statement is supplemented or amended pursuant to paragraph (l) of this Section 7, at the time of each supplement or amendment thereto and (unless subsequently again supplemented or amended pursuant to such paragraph) at all times subsequent thereto up to and including the Closing Date, the Official Statement (other than information therein provided by the Underwriter) as so supplemented or amended will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(l) If between the date of this Bond Purchase Agreement and that date which is 25 days after the end of the underwriting period (as determined in accordance with Section 14 hereof) any event of which the officer of the Authority executing this Bond Purchase Agreement has knowledge shall occur affecting the Authority which might adversely affect the marketability of the Bonds or the market prices thereof, or which might cause the Official Statement, as then supplemented or amended, to contain any untrue statement of a material fact or to omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, northe Authority shall notify the Underwriter, to and if in the best knowledge opinion of the Authority is there any basis for any action, suit, proceeding, inquiry Underwriter such event requires the preparation and publication of a supplement or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior amendment to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed will at its expense prepare and furnish to comply with the Underwriter a reasonable number of copies of such supplement to, or amendment of, the Official Statement in a form and in a manner approved by the Underwriter.
(m) Any certificate signed by any continuing disclosure obligation undertaken officer of the Authority and delivered to the Underwriter pursuant to the Rule. All representations, warranties Authority Documents or any document contemplated thereby or required for the valid execution and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the BondsBonds shall be deemed a representation and warranty by the Authority to the Underwriter as to the statements made therein.
(n) The Authority will cause the proceeds from the sale of the Bonds to be paid to the Trustee for the purposes specified in the Indenture and the Official Statement. So long as any of the Bonds are outstanding and except as may be authorized by the Indenture, the Authority will not issue or sell any Bonds or other obligations, other than the Bonds delivered thereunder, the interest on and premium, if any, or principal of which will be payable from the Revenues.
(o) The Authority shall honor all other covenants on its part contained in the Indenture and the Installment Sale Agreement which are incorporated herein and made a part of this Bond Purchase Agreement.
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.
(a) the Authority is a joint exercise of powers authority duly organized and validly existing under and pursuant to the laws of the State, with full legal right, power and authority to issue, sell and deliver the Series 2015 Bonds to the Underwriters pursuant to the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase Agreement, the Series 2015 Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate executed by the Authority and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the IndentureIndenture (collectively, the “Legal Documents”) and to carry out and consummate all transactions on its part contemplated by each of the aforesaid documents and the Preliminary Official Statement and the Final Official Statement, and compliance by the Authority with the provisions of the Bonds and the Legal Documents will not materially conflict with or constitute a breach of or default under any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution resolutions adopted by the Board of Commissioners of the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of the Third Supplement, the 2015-1 Supplement, the Escrow Agreement, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate Series 2015 Bonds, and the resolution adopted by the Board of Commissioners of the Authority on , 2015 approving and authorizing the execution and delivery of the Preliminary Official Statement and the Final Official Statement (collectively, the “Authority ResolutionResolutions”) was were duly adopted at a meeting meetings of the Authority 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 is are in full force and effect and has have not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Series 2015 Bonds will have been duly authorized, executed and delivered by, and will constitute the valid and binding limited obligations of of, the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, Legal Documents and when fully executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Final Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, event has occurred and is continuing which, with the passage of time or giving of notice, or both, would would, to the knowledge of the Authority, constitute an event of default thereunder has occurred and is continuingthereunder;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax CertificateCompliance Certificate executed by the Authority and the City in connection with the delivery of the Series 2015 Bonds;
(h) any certificate signed by any duly authorized officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the sametherein;
(i) to the best knowledge of the Authority, Authority as of the date hereof and as of the Closing Datehereof, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement Documents or the Final Official Statement or the validity or enforceability of the Series 2015 Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interestsinterests other than as described in the Final Official Statement;
(k) the information under the headings “THE AUTHORITY,” “LITIGATION” and “LITIGATIONCHALLENGES TO OTHER AUTHORITY LEASE REVENUE BONDS” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement to state a material fact necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY,” “LITIGATION” and “LITIGATIONCHALLENGES TO OTHER AUTHORITY LEASE REVENUE BONDS” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Final Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative and the City promptly of any proposal to amend or supplement the Final Official Statement and will not effect or consent to any such amendment or supplement without the consent of the RepresentativeRepresentative and the City, which consent consents will not be unreasonably delayed or withheld. The , and the Authority will advise the Representative and the City promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Final Official Statement in connection with the offering, sale or distribution of the Series 2015 Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Final Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, instrument which breach or default would materially adversely affect the security of for the Series 2015 Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Final Official Statement, the authorization, execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement Legal Documents and the Tax Certificate and the Series 2015 Bonds and compliance by the Authority with the provisions of each of the Legal Documents and the Bonds such agreements or instruments do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Series 2015 Bonds and the Legal Documents;
(o) as of the time of acceptance hereof and the Closing, except as disclosed in the Preliminary Official Statement and the Final Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, notice of which has been given to the Authority, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Vice Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Series 2015 Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Series 2015 Bonds, or in any way contesting or affecting the validity of the Series 2015 Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Series 2015 Bonds from gross income for federal Federal income tax purposes or contesting the powers of the Authority or its authority to issue the Series 2015 Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bonds.
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority hereby represents, “to warrants and agrees with the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.Underwriter as follows:
(a) the The Authority is and will be on the Closing Date a joint exercise of powers authority agency duly organized and validly existing under and pursuant to the laws of the State, State with the full legal right, power and authority to issueconduct its business, sell to adopt the Authority Resolution, to issue the Series 2017 Bonds for the purposes described in the Official Statement and to execute and deliver the Bonds Official Statement and enter into this Purchase Agreement and the Financing Documents to the Underwriters pursuant to the Indenturebe executed by it, and executeto consummate the transactions contemplated hereby and thereby;
(b) The Board of Directors of the Authority has duly adopted the Authority Resolution, deliver and perform the Authority has duly authorized and approved the execution and delivery of, and the performance by the Authority of the obligations on its obligationspart contained in, the Financing Documents to be executed by it and the consummation by it of all other transactions of the Authority contemplated by the Official Statement and this Purchase Agreement;
(c) The Series 2017 Bonds, this Purchase Agreement and the Financing Documents to be executed by the Authority, when executed and delivered by the Authority and assuming due execution and delivery by all other parties thereto, will constitute the valid and binding obligations of the Authority, enforceable in accordance with their respective terms except as the case enforceability may bebe subject to applicable limitations of bankruptcy, under insolvency, reorganization, arrangement, fraudulent conveyance, moratorium or equitable principles affecting the enforcement of creditors’ rights. The enforcement of this Bond Purchase Agreement, the Financing Documents and the Series 2017 Bonds are subject to the effect of the general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law, and to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State;
(d) The execution and delivery by the Authority of the Series 2017 Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate Financing Documents to be executed by the Authority and the City (the “Tax Certificate” and collectively with it, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each of the aforesaid documents and the Preliminary Official Statement and the Official Statement, and compliance with the provisions on the Authority’s part contained herein and therein, will not, as of the Bonds and date hereof or as of the Legal Documents will not materially Closing Date, conflict with or constitute a material breach of or material default under any applicable constitutional provision, State or federal law, administrative regulation, court order judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or consent decree other instrument to which the Authority is a party, nor will, as of the date hereof or as of the Closing Date, any such execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties or assets of the Authority under the terms of any such State or federal law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as provided in the Financing Documents;
(e) The Authority is not in material breach of or in material default under any existing law or administrative regulation of the State or the United States of America or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, notice or both, would constitute a default or an event of material default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;
(of) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, There is no action, suit, proceeding, inquiry or investigation, investigation at law or in equity, equity or before or by any State or federal court, government agency, public board or bodybody pending or, is pending or to the best knowledge of the Authority’s knowledge after reasonable investigation, threatened against the Authority (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Series 2017 Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or (ii) in any way contesting or affecting (a) the validity or enforceability of the Series 2017 Bonds, this Purchase Agreement, or the Legal Financing Documents to which the Authority is a party, (b) the existence or powers of the Authority, (c) the transactions contemplated hereby or by the Official Statement or any agreement or instrument to which the Authority is a party or that is used or contemplated for use in the consummation of the transactions contemplated thereby hereby or herebyby the Official Statement, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iiid) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement Statement, or (e) the tax-exempt status of the interest on the Series 2017 Bonds;
(g) No consent, approval, authorization, order, filing, registration, qualification, election or referendum, of or by any State or federal court or State or federal governmental agency or public body is required by the Authority in connection with the issuance, delivery or sale of the Series 2017 Bonds or the Official Statement consummation of the other transactions effected or contemplated herein or hereby, except for such actions as may be necessary to qualify the Series 2017 Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and jurisdictions of the United States of America as the Underwriter may reasonably request, or which have not been taken or obtained; provided, however, that the Authority shall not be required to subject itself to service of process in any supplement or amendment thereto or asserting that jurisdiction in which it is not so subject as of the date hereof;
(h) As of the date thereof, the information and statements regarding the Authority contained in the Preliminary Official Statement or were true and correct, and the Preliminary Official Statement contained (excluding information relating to DTC and the book-entry system as to which no representation is made) did not contain any untrue statement of a material fact or omitted omit to state any 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, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted therefrom by paragraph Rule 15c2-12; and the Official Statement (b)(1excluding information relating to DTC and the book-entry system as to which no representation is made) does not and will not on the Closing Date contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the Rule; andcircumstances under which they were made, not misleading;
(qi) except as otherwise disclosed If between the date hereof and the date which is 25 days after the End of the Underwriting Period for the Series 2017 Bonds, an event occurs which might or would cause the information contained in the Preliminary Official Statement as then supplemented or amended, to contain any untrue statement of a material fact or to omit to state a material fact required to be stated therein or necessary to make such information therein, in the light of the circumstances under which it was made, not misleading, the Authority will notify the Underwriter, and, if in the opinion of the Authority or the Underwriter, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant will forthwith prepare and furnish to the RuleUnderwriter (at the expense of the County) (i) a reasonable number of copies of an amendment of or supplement to the Official Statement (in form and substance reasonably satisfactory to the Underwriter) which will amend or supplement the Official Statement so that it will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (ii) if such event takes place subsequent to the Closing, such certificates, instruments and other documents as the Underwriter may deem necessary to evidence the truth and accuracy of such supplement or amendment to the Official Statement. All representationsFor the purposes of this subsection, warranties between the date hereof and agreements the date which is 25 days after the End of the Underwriting Period for the Series 2017 Bonds, the Authority will furnish such information with respect to itself as the Underwriter may from time to time reasonably request; and
(j) Any certificate signed by an authorized officer of the Authority delivered to the Underwriter shall remain operative be deemed a representation and in full force and effect, regardless of any investigations warranty by the Authority to the Underwriter as to the statements made by or on the Underwriters’ behalf, and shall survive the delivery of the Bondstherein.
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority represents, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.warrants, and agrees that:
(a) The Authority is a public body corporate and politic created and existing under the Act and, unless otherwise required by law, shall maintain its corporate existence so long as the Bond is Outstanding. Under the provisions of the Act, the Authority is a joint exercise authorized to enter into and carry out the transactions contemplated by this Contract and the Resolution;
(b) The Authority and the City heretofore have agreed that the Authority will provide financing for the undertakings of powers authority duly organized and validly existing under and pursuant the City described in the preamble to this Contract by the issuance of the Bond as set forth in the Resolution;
(c) There is no litigation or proceeding pending or, to the laws knowledge of the StateAuthority, threatened against the Authority or against any other party which would have a material adverse effect on the right of the Authority to execute this Contract or the ability of the Authority to comply with full legal rightany of its obligations under the Bond, power and authority to issue, sell and deliver the Bonds to the Underwriters pursuant to the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase AgreementContract, the BondsResolution, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate or any other documents contemplated to be executed by the Authority in connection with the issuance and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each delivery of the aforesaid documents and Bond;
(d) This Contract, upon execution of the Preliminary Official Statement and same, will constitute the Official Statementlegal, valid, and compliance binding obligation of the Authority in accordance with its terms, and performance by the Authority of its obligations hereunder will not violate or result in a breach of any of the provisions of the Bonds and the Legal Documents will not materially conflict with or constitute a breach of or default under any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by which the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generallybound;
(e) at The Authority has not made, done, executed, or suffered, and warrants that it will not make, do, execute, or suffer, any act or thing relating to the date hereof and as of the Closing Date, Bond except as otherwise disclosed permitted herein and the Resolution and except for acts or things done or permitted by the City; and
(f) Except as herein and in the Preliminary Official Statement and the Official StatementResolution provided, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of not encumber any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority part of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges payable under this Contract or security interests;
(k) the information its rights under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as this Contract. The pledge made of the date Revenues payable under this Contract constitutes a first and prior pledge of the Preliminary Official Statement and as of the date hereof, was lien on said Revenues and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and said pledge shall at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) time be impaired by the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is Revenues shall not and will not otherwise be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;
(o) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bondspledged.
Appears in 1 contract
Samples: Intergovernmental Contract
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority represents, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.warrants and agrees as follows:
(a) the The Authority is a joint exercise of powers authority duly organized and validly existing under and pursuant to the laws of the State, with State of California.
(b) The Authority has full legal right, power and authority (i) to issueenter into the Authority Documents, sell (ii) to sell, issue and deliver the Bonds to the Underwriters pursuant to the IndentureUnderwriter as provided herein, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase Agreement, the Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate executed by the Authority and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”iii) and to carry out and consummate all the transactions on its part contemplated by each of the aforesaid documents Authority Documents and the Official Statement.
(c) By all necessary official action, the Authority has duly authorized and approved the Authority Documents, has duly authorized and approved the Preliminary Official Statement and the Official StatementStatement and has duly authorized and approved the execution and delivery of, and compliance the performance by the Authority of the obligations in connection with the provisions issuance of the Bonds on its part contained in the Bonds and the Legal Authority Documents, and the consummation by it of all other transactions contemplated by the Authority Documents will in connection with the issuance of the Bonds.
(d) To the best of its knowledge, the Authority is not materially conflict with or constitute a in any material respect in breach of or default under any applicable constitutional provision, lawlaw or administrative regulation of any state or of the United States, administrative regulationor any agency or instrumentality of either, court order or consent decree or any applicable judgment or decree decree, or any loan agreement, indenture, bond, note, resolution, indentureagreement (including, agreement without limitation, the Indenture) or other instrument to which the Authority is a party which breach or default has or may be otherwise subject;
(b) have an adverse effect on the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting ability of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of perform its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subjectIndenture, and no event has occurred and is continuing which, which with the passage of time or the giving of notice, or both, would constitute such a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement Bonds and the Tax Certificate and the Bonds Authority Documents, and compliance with the provisions of each of on the Legal Documents and the Bonds do not and Authority’s part contained therein, will not conflict in any material way with or constitute a material breach of or a material default under any applicable constitutional provision, law or law, administrative rule or regulation of the State or the United States or any applicable regulation, judgment, decree, license, permit, trust loan agreement, loan agreementindenture, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; a party nor will any such authorization, execution, delivery 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 its the property or assets or properties of the Authority or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;Indenture.
(oe) as To the best of its knowledge, all authorizations, approvals, licenses, permits, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction of the time matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of acceptance hereof and which would materially adversely affect the Closingdue performance by, the Authority of its obligations in connection with the issuance of the Bonds under the Authority Documents have been duly obtained, except for such approvals, consents and orders as disclosed may be required under the “Blue Sky” or securities laws of any state or of the United States in Preliminary Official Statement connection with the offering and sale of the Bonds; except as described in or contemplated by the Official Statement, all authorizations, approvals, licenses, permits, consents and orders of any governmental authority, board, agency or commission having jurisdiction of the matters which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the Authority of its obligations under the Indenture have been duly obtained.
(f) The Bonds when issued will conform to the descriptions thereof contained in the Official Statement under the captions “INTRODUCTORY STATEMENT” and “THE BONDS,” and the Authority Documents when executed and delivered will conform to the descriptions thereof contained in the Official Statement under the captions “INTRODUCTORY STATEMENT,” “THE BONDS,” “SOURCES OF PAYMENT FOR THE BONDS” and “APPENDIX A – SUMMARY OF THE INDENTURE.”
(g) The Bonds, when issued, authenticated and delivered in accordance with the Indenture, and sold to the Underwriter as provided herein, will be validly issued and outstanding obligations of the Authority, entitled to the benefits of the Indenture, and upon such issuance and delivery, the Indenture will provide, for the benefit of the owners from time to time of the Bonds, the legally valid and binding pledge of and lien and security interest it purports to create.
(h) As of the date hereof, there is no action, suit, proceeding, inquiry or investigation, notice of which has been served on the Authority, at law or in equity, equity before or by any court, government agency, public board or body, is pending or to the best knowledge of the officer of the City executing this Purchase Contract on behalf of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning against the corporate Authority, affecting the existence of the Authority Authority, or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting affecting or seeking to prohibit, restrain or enjoin the issuancesale, sale issuance or delivery of any the Bonds or the pledge and lien on the Revenues pursuant to the Indenture, or contesting or affecting as to the Authority the validity or enforceability of the BondsBond Law, the Bonds or the Authority Documents, or contesting the payment or collection tax- exempt status of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement Statement, or contesting the powers of the Authority for the issuance of the Bonds, or the execution and delivery or adoption by the Authority of the Authority Documents, or in any supplement way contesting or amendment thereto challenging the consummation of the transactions contemplated hereby or asserting thereby; nor, to the best knowledge of the Authority, is there any basis for any such action, suit, proceeding, inquiry or investigation, wherein an unfavorable decision, ruling or finding would materially adversely affect the validity of the Bond Law, as to the Authority, or the authorization, execution, delivery or performance by the Authority of the Bonds or the Authority Documents.
(i) The Authority will furnish such information, execute such instruments and take such other action in cooperation with the Underwriter as the Underwriter may reasonably request in order (x) to qualify the Bonds for offer and sale under the “Blue Sky” or other securities laws and regulations of such states and other jurisdictions of the United States as the Underwriter may designate, (y) to determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions, and will use its best efforts to continue such qualifications in effect so long as required for the distribution of the Bonds; provided, however, that the Authority shall not be required to execute a general or special consent to service of process or qualify to do business in connection with any such qualification or determination in any jurisdiction, provided, that the Underwriter shall bear all costs in connection with the Authority’s action under (x) and (y) herein, and (z) to assure or maintain the tax-exempt status of the interest on the Bonds.
(j) As of the date thereof, the Preliminary Official Statement or does not, except for the Official Statement contained omission of certain information permitted to be omitted in accordance with Rule 15c2-12 (as defined below), contain any untrue statement of a material fact or omitted omit to state any a material fact required necessary to be stated make the statements therein with respect to the Authority, in light of the circumstances under which they were made, not misleading.
(k) At the time of the Authority’s acceptance hereof, and (unless an event occurs of the nature described in paragraph (m) of this Section 5) at all times subsequent thereto up to and including the date of the Closing, the Official Statement does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that these representations and warranties of the Authority shall apply only to the information contained in the Official Statement relating to the Authority.
(l) If the Official Statement is supplemented or amended pursuant to paragraph (m) of this Section 5, at the time of each supplement or amendment thereto and (unless subsequently again supplemented or amended pursuant to such paragraph) at all times subsequent thereto up to and including the date of the Closing, the Official Statement as so supplemented or amended will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that these representations and warranties of the Authority shall apply only to the information contained in the Official Statement relating to the Authority.
(m) If between the date of this Purchase Contract and that date which is 25 days after the end of the underwriting period (as determined in accordance with Section 14 hereof) any event known to the Authority shall occur affecting the Authority which might adversely affect the marketability of the Bonds or the market prices thereof, or which might cause the Official Statement, as then supplemented or amended, to contain any untrue statement of a material fact or to omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, northe Authority shall notify the Underwriter thereof, to and if in the best knowledge opinion of the Authority is there any basis for any action, suit, proceeding, inquiry Underwriter such event requires the preparation and publication of a supplement or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior amendment to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed will at its expense prepare and furnish to comply the Underwriter a reasonable number of copies of such supplement to, or amendment of, the Official Statement in a form and in a manner approved by the Underwriter.
(n) The Authority will refrain from taking any action, or permitting any action to be taken, with regard to which the Authority may exercise control, that results in the loss of the tax-exempt status of the interest on the Bonds.
(o) Any certificate signed by any continuing disclosure obligation undertaken officer of the City on behalf of the Authority and delivered to the Underwriter pursuant to the Rule. All representationsIndenture, warranties this Purchase Contract or any document contemplated thereby shall be deemed a representation and agreements warranty by the Authority to the Underwriter as to the statements made therein.
(p) The Authority will cause the proceeds from the sale of the Bonds to be paid to the Trustee for the purposes specified in the Indenture and the Official Statement. So long as any of the Bonds are outstanding and except as may be authorized by the Indenture, the Authority will not issue or sell any bonds or other obligations, other than the Bonds sold thereby, the interest on and premium, if any, or principal of which will be payable from the payments to be made under the Indenture.
(q) The Authority shall remain operative honor all other covenants on its part contained in the Indenture which are incorporated herein and in full force and effect, regardless made a part of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bondsthis Purchase Contract.
Appears in 1 contract
Samples: Purchase Contract
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority hereby represents, “to warrants and agrees with the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.Underwriter as follows:
(a) The Authority is, and will be on the Authority is Closing Date, a joint exercise of powers authority duly organized and validly existing under and operating pursuant to the laws of the State, State of California with the full legal right, power and authority to issueissue the Series 2015 Bonds pursuant to the Act, sell to execute and deliver the Bonds Official Statement and to the Underwriters pursuant to the Indenture, and execute, deliver and perform its obligations, as the case may be, under enter into this Bond Purchase Agreement, the Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Trust Agreement and the Tax Improvement Agreement
(b) The Joint Exercise of Powers Agreement creating the Authority, dated April 1, 1993, and Nonarbitrage Certificate all amendments thereto, including the amendment dated as of _ , 2015, has been duly authorized and executed by the Members of the Authority, and is in full force and effect;
(c) By all necessary official action of the Authority and prior to or concurrently with the City (the “Tax Certificate” and collectively with this Bond Purchase Agreementacceptance hereof, the Site LeaseAuthority has duly approved, ratified and confirmed the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each distribution of the aforesaid documents and the Preliminary Official Statement and the execution, delivery and distribution of the Official Statement, and compliance with has duly authorized and approved the provisions issuance of the Series 2015 Bonds and the Legal Documents execution and delivery of, and the performance by the Authority of the obligations on its part contained in, the Trust Agreement, the Improvement Agreement and this Bond Purchase Agreement and the consummation by it of all other transactions contemplated by the Official Statement, the Trust Agreement, the Improvement Agreement and this Bond Purchase Agreement;
(d) The Trust Agreement and the Series 2015 Bonds will conform to the descriptions thereof contained in the Official Statement and the Series 2015 Bonds, when duly issued and authenticated in accordance with the Trust Agreement and delivered to the Underwriter as provided herein, will be validly issued and outstanding obligations of the Authority, entitled to the benefits of the Trust Agreement and payable from the sources therein specified.
(e) The Authority is not materially conflict with or constitute a in any material respect in breach of or default under any applicable constitutional provision, law, law or administrative regulation, court order or consent decree regulation to which it is subject or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be to which the Authority or any of its property or assets is otherwise subject;
(b) the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder has occurred and no event, which, is continuing which with the passage of time or the giving of notice, or both, would constitute an such a default or event of default thereunder has occurred in any material respect under any such instrument; and is continuing;
(f) all approvals, consents and orders the issuance of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Series 2015 Bonds and the Legal Documents have been duly obtained or made, execution and are, and will be as delivery of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposedTrust Agreement, the results of which could materially adversely affect the transactions contemplated by the Legal DocumentsImprovement Agreement, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement this Bond Purchase Agreement and the Official Statement, to and compliance with the best of provisions on the Authority’s knowledgepart contained herein and in the Trust Agreement, the Authority is not Improvement Agreement and this Bond Purchase Agreement will not be in any material respect conflict with or constitute a breach of or in default under any applicable constitutional provisionlaw, law or administrative rule or regulation of the State or the United Statesregulation, or any applicable judgment or decree or any trust agreementjudgment, decree, loan agreement, indenture, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or the properties or assets of the Authority under the terms of any such law, regulation administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as may be provided by the Bonds and the Legal Documents;
(of) as To the best knowledge of the time of acceptance hereof and the ClosingAuthority after reasonable investigation, except as disclosed in Preliminary Official Statement and the Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government governmental agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigationor, threatened (i) in any way questioning against the corporate Authority affecting the existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority its officers to their respective offices; (ii) affecting, contesting offices or affecting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any the Series 2015 Bonds or contesting or affecting, as to the Authority, the validity or enforceability of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Series 2015 Bonds, the Legal Documents Improvement Agreement, the Trust Agreement or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes this Bond Purchase Agreement or contesting the powers of the Authority or its authority to issue enter into, adopt or perform its obligations under any of the Bonds; (iii) which may result foregoing, or contesting in any material adverse change relating to the Authority; or (iv) contesting way the completeness or accuracy of the Preliminary Official Statement or the Official Statement Statement, or any amendment or supplement thereto, wherein an unfavorable decision, ruling or amendment thereto finding would materially adversely affect the validity or asserting enforceability of the Trust Agreement, the Improvement Agreement or this Bond Purchase Agreement;
(g) All authorizations, approvals, licenses, permits, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the Authority of its obligations in connection with the issuance of the Series 2015 Bonds under the Trust Agreement have been duly obtained, except for such approvals, consents and orders as may be required under the Blue Sky or securities laws of any state in connection with the offering and sale of the Series 2015 Bonds; and all authorizations, approvals, licenses, permits, consents and orders of any governmental authority, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the Authority of its obligations under the Trust Agreement, the Improvement Agreement or this Bond Purchase Agreement have been duly obtained;
(h) The Authority will furnish such information, execute such instruments and take such other action in cooperation with the Underwriter as the Underwriter may reasonably request in order (i) to qualify the Series 2015 Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions of the United States as the Underwriter may designate and (ii) to determine the eligibility of the Series 2015 Bonds for investment under the laws of such states and other jurisdictions, and will use its best efforts to continue such qualification in effect so long as required for distribution of the Series 2015 Bonds; provided, however, that in no event shall the Authority be required to take any action which would subject it to service of process in any jurisdiction in which it is not now so subject;
(i) As of the date thereof and hereof, the information in the Preliminary Official Statement or relating to the Authority did not, and as of the date hereof, the Official Statement contained (excluding therefrom information about The Depository Trust Company and its book-entry-only system, as to which no opinion is expressed) does not, contain any untrue statement of a material fact or omitted omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(j) As of the date hereof and at all times subsequent thereto to and including the date which is 25 days following the End of the Underwriting Period (as such term is hereinafter defined) for the Series 2015 Bonds, the information in the Official Statement relating to the Authority did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(k) If between the date hereof and the date which is 25 days after the End of the Underwriting Period for the Series 2015 Bonds, an event occurs which might or would cause the information contained in the Official Statement relating to the Authority, as then supplemented or amended, to contain an untrue statement of a material fact or to omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, northe Authority will notify the Underwriter, to and, if in the best knowledge opinion of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the RuleAuthority, the Authority has heretofore deemed final Underwriter or Underwriter’s Counsel, such event requires the Preliminary Official Statement prior preparation and publication of a supplement or amendment to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has will forthwith prepare and furnish to the Underwriter (at the expense of the Authority) a reasonable number of copies of an amendment of or supplement to the Official Statement (in form and substance satisfactory to Underwriter’s Counsel) which will amend or supplement the Official Statement so that the information relating to the Authority will not previously failed contain an untrue statement of a material fact or omit to comply 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. For the purposes of this subsection, between the date hereof and the date which is 25 days after the End of the Underwriting Period for the Series 2015 Bonds, the Authority will furnish such information with any continuing disclosure obligation undertaken respect to itself as the Underwriter may from time to time reasonably request;
(l) If the information contained in the Official Statement relating to the Authority is amended or supplemented pursuant to paragraph (i) hereof, at the Rule. All representations, warranties time of each supplement or amendment thereto and agreements (unless subsequently again supplemented or amended pursuant to such subparagraph) at all times subsequent thereto up to and including the date which is 25 days after the End of the Underwriting Period for the Series 2015 Bonds, the portions of the Official Statement relating to the Authority shall remain operative so supplemented or amended (including any financial and statistical data contained therein) will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in full force the light of the circumstances under which they were made, not misleading;
(m) For the period after the Closing, up to and effectincluding the date which is 25 days after the End of the Underwriting Period for the Series 2015 Bonds, regardless the Authority will not participate in the issuance of any investigations made amendment of or supplement to the Official Statement to which, after being furnished with a copy, the Underwriter reasonably objects in writing or which is disapproved by counsel for the Underwriter;
(n) As used herein and for the purposes of the foregoing, the term “End of the Underwriting Period” for the Series 2015 Bonds shall mean the earlier of (i) the Closing Date unless the Authority or the District has been notified in writing to the contrary by the Underwriter on or prior to the Underwriters’ behalfClosing Date, or (ii) the date on which the End of the Underwriting Period for the Series 2015 Bonds has occurred under Rule 15c2-12; provided, however, that the Authority or the District, as applicable, may treat as the End of the Underwriting Period for the Series 2015 Bonds the date specified as such in a notice from the Underwriter stating the date which is the End of the Underwriting Period;
(o) The Authority will apply, or cause the application of, the proceeds of the Series 2015 Bonds in accordance with the Improvement Agreement and the Trust Agreement; and
(p) Any certificate signed by any authorized official of the Authority, and shall survive delivered to the Underwriter in connection with the execution and delivery of the Series 2015 Bonds, shall be deemed a representation and warranty by the Authority to the Underwriter as to the statements made therein.
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority represents, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.warrants and agrees as follows:
(a) the The Authority is a joint exercise of powers authority duly organized and validly existing under and pursuant to the laws of the State, with State of California.
(b) The Authority has full legal right, power and authority (i) to issueenter into the Authority Documents, sell (ii) to sell, issue and deliver the Bonds to the Underwriters pursuant to the IndentureUnderwriter as provided herein, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase Agreement, the Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate executed by the Authority and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”iii) and to carry out and consummate all the transactions on its part contemplated by each of the aforesaid documents Authority Documents and the Official Statement.
(c) By all necessary official action, the Authority has duly authorized and approved the Authority Documents, has duly authorized and approved the Preliminary Official Statement and the Official StatementStatement and has duly authorized and approved the execution and delivery of, and compliance the performance by the Authority of the obligations in connection with the provisions issuance of the Bonds on its part contained in the Bonds and the Legal Authority Documents, and the consummation by it of all other transactions contemplated by the Authority Documents will in connection with the issuance of the Bonds.
(d) To the best of its knowledge, the Authority is not materially conflict with or constitute a in any material respect in breach of or default under any applicable constitutional provision, lawlaw or administrative regulation of any state or of the United States, administrative regulationor any agency or instrumentality of either, court order or consent decree or any applicable judgment or decree decree, or any loan agreement, indenture, bond, note, resolution, indentureagreement (including, agreement without limitation, the Indenture) or other instrument to which the Authority is a party which breach or default has or may be otherwise subject;
(b) have an adverse effect on the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting ability of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of perform its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subjectIndenture, and no event has occurred and is continuing which, which with the passage of time or the giving of notice, or both, would constitute such a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement Bonds and the Tax Certificate and the Bonds Authority Documents, and compliance with the provisions of each of on the Legal Documents and the Bonds do not and Authority’s part contained therein, will not conflict in any material way with or constitute a material breach of or a material default under any applicable constitutional provision, law or law, administrative rule or regulation of the State or the United States or any applicable regulation, judgment, decree, license, permit, trust loan agreement, loan agreementindenture, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; a party nor will any such authorization, execution, delivery 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 its the property or assets or properties of the Authority or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;Indenture.
(oe) as To the best of its knowledge, all authorizations, approvals, licenses, permits, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction of the time matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of acceptance hereof and which would materially adversely affect the Closingdue performance by, the Authority of its obligations in connection with the issuance of the Bonds under the Authority Documents have been duly obtained, except for such approvals, consents and orders as disclosed may be required under the “Blue Sky” or securities laws of any state or of the United States in Preliminary Official Statement connection with the offering and sale of the Bonds; except as described in or contemplated by the Official Statement, all authorizations, approvals, licenses, permits, consents and orders of any governmental authority, board, agency or commission having jurisdiction of the matters which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the Authority of its obligations under the Indenture have been duly obtained.
(f) The Bonds when issued will conform to the descriptions thereof contained in the Official Statement under the captions “SUMMARY STATEMENT” and “THE BONDS – GENERAL PROVISIONS,” and the Authority Documents when executed and delivered will conform to the descriptions thereof contained in the Official Statement under the captions “SUMMARY STATEMENT,” “THE BONDS – GENERAL PROVISIONS,” “SOURCES OF PAYMENT FOR THE BONDS” and “APPENDIX A – SUMMARY OF THE INDENTURE.”
(g) The Bonds, when issued, authenticated and delivered in accordance with the Indenture, and sold to the Underwriter as provided herein, will be validly issued and outstanding obligations of the Authority, entitled to the benefits of the Indenture, and upon such issuance and delivery, the Indenture will provide, for the benefit of the owners from time to time of the Bonds, the legally valid and binding pledge of and lien and security interest it purports to create.
(h) As of the date hereof, there is no action, suit, proceeding, inquiry or investigation, notice of which has been served on the Authority, at law or in equity, equity before or by any court, government agency, public board or body, is pending or to the best knowledge of the officer of the City executing this Purchase Contract on behalf of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning against the corporate Authority, affecting the existence of the Authority Authority, or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting affecting or seeking to prohibit, restrain or enjoin the issuancesale, sale issuance or delivery of any the Bonds or the pledge and lien on the Revenues pursuant to the Indenture, or contesting or affecting as to the Authority the validity or enforceability of the BondsBond Law, the Bonds or the Authority Documents, or contesting the payment or collection tax- exempt status of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement Statement, or contesting the powers of the Authority for the issuance of the Bonds, or the execution and delivery or adoption by the Authority of the Authority Documents, or in any supplement way contesting or amendment thereto challenging the consummation of the transactions contemplated hereby or asserting thereby; nor, to the best knowledge of the Authority, is there any basis for any such action, suit, proceeding, inquiry or investigation, wherein an unfavorable decision, ruling or finding would materially adversely affect the validity of the Bond Law, as to the Authority, or the authorization, execution, delivery or performance by the Authority of the Bonds or the Authority Documents.
(i) The Authority will furnish such information, execute such instruments and take such other action in cooperation with the Underwriter as the Underwriter may reasonably request in order (x) to qualify the Bonds for offer and sale under the “Blue Sky” or other securities laws and regulations of such states and other jurisdictions of the United States as the Underwriter may designate, (y) to determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions, and will use its best efforts to continue such qualifications in effect so long as required for the distribution of the Bonds; provided, however, that the Authority shall not be required to execute a general or special consent to service of process or qualify to do business in connection with any such qualification or determination in any jurisdiction, provided, that the Underwriter shall bear all costs in connection with the Authority’s action under (x) and (y) herein, and (z) to assure or maintain the tax-exempt status of the interest on the Bonds.
(j) As of the date thereof, the Preliminary Official Statement or does not, except for the Official Statement contained omission of certain information permitted to be omitted in accordance with Rule 15c2-12 (as defined below), contain any untrue statement of a material fact or omitted omit to state any a material fact required necessary to be stated make the statements therein with respect to the Authority, in light of the circumstances under which they were made, not misleading.
(k) At the time of the Authority’s acceptance hereof, and (unless an event occurs of the nature described in paragraph (m) of this Section 5) at all times subsequent thereto up to and including the date of the Closing, the Official Statement does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(l) If the Official Statement is supplemented or amended pursuant to paragraph (m) of this Section 5, at the time of each supplement or amendment thereto and (unless subsequently again supplemented or amended pursuant to such paragraph) at all times subsequent thereto up to and including the date of the Closing, the Official Statement as so supplemented or amended will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that these representations and warranties of the Authority shall apply only to the information contained in the Official Statement relating to the Authority.
(m) If between the date of this Purchase Contract and that date which is 25 days after the end of the underwriting period (as determined in accordance with Section 14 hereof) any event known to the Authority shall occur affecting the Authority which might adversely affect the marketability of the Bonds or the market prices thereof, or which might cause the Official Statement, as then supplemented or amended, to contain any untrue statement of a material fact or to omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, nor, to the best knowledge Authority shall notify the Underwriter thereof; and if in the opinion of the Authority is there any basis for any action, suit, proceeding, inquiry Underwriter such event requires the preparation and publication of a supplement or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior amendment to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed will at its expense prepare and furnish to comply the Underwriter a reasonable number of copies of such supplement to, or amendment of, the Official Statement in a form and in a manner approved by the Underwriter.
(n) The Authority will refrain from taking any action, or permitting any action to be taken, with regard to which the Authority may exercise control, that results in the loss of the tax-exempt status of the interest on the Bonds.
(o) Any certificate signed by any continuing disclosure obligation undertaken officer of the City on behalf of the Authority and delivered to the Underwriter pursuant to the Rule. All representationsIndenture, warranties this Purchase Contract or any document contemplated thereby shall be deemed a representation and agreements warranty by the Authority to the Underwriter as to the statements made therein.
(p) The Authority will cause the proceeds from the sale of the Bonds to be paid to the Trustee for the purposes specified in the Indenture and the Official Statement. So long as any of the Bonds are outstanding and except as may be authorized by the Indenture, the Authority will not issue or sell any bonds or other obligations, other than the Bonds sold thereby, the interest on and premium, if any, or principal of which will be payable from the payments to be made under the Indenture.
(q) The Authority shall remain operative honor all other covenants on its part contained in the Indenture which are incorporated herein and in full force and effect, regardless made a part of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bondsthis Purchase Contract.
Appears in 1 contract
Samples: Purchase Contract
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority represents, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.warrants, and agrees that:
(a) The Authority is a public body corporate and politic created and existing under the Act and, unless otherwise required by law, shall maintain its corporate existence so long as any Bond are Outstanding. Under the provisions of the Act, the Authority is a joint exercise authorized to enter into and carry out the transactions contemplated by this Contract and the Resolution;
(b) The Authority and the City heretofore have agreed that the Authority will provide financing and services for the undertakings described in the preamble to this Contract by the issuance of powers authority duly organized and validly existing under and pursuant the Bond as set forth in the Resolution;
(c) There is no litigation or proceeding pending, or to the laws knowledge of the StateAuthority threatened, against the Authority or against any other party which would have a material adverse effect on the right of the Authority to execute this Contract or the ability of the Authority to comply with full legal rightany of its obligations under the Bond, power and authority to issue, sell and deliver the Bonds to the Underwriters pursuant to the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase AgreementContract, the BondsResolution, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate or any other documents contemplated to be executed by the Authority in connection with the issuance and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each delivery of the aforesaid documents and Bond;
(d) This Contract, upon execution of the Preliminary Official Statement and same, will constitute the Official Statementlegal, valid, and compliance binding obligation of the Authority in accordance with its terms, and performance by the Authority of its obligations hereunder will not violate, or result in a breach of any of the provisions of the Bonds and the Legal Documents will not materially conflict with of, or constitute a breach of or default under under, any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by which the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generallybound;
(e) at The Authority has not made, done, executed, or suffered, and warrants that it will not make, do, execute, or suffer, any act or thing whereby the date hereof and as of Authority’s or the Closing Date, City’s title to or interest in the Project will or may be impaired or encumbered in any manner except as otherwise disclosed permitted herein and the Resolution and except for acts or things done or permitted by the City; and
(f) Except as herein and in the Preliminary Official Statement and the Official StatementResolution provided, the Authority will be in compliance with the covenants and agreements contained not encumber any part of its interest in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time Project or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute Revenues payable under this Contract or its rights under this Contract. The pledge made in the Resolution of the Revenues payable under this Contract constitutes a condition precedent to the due performance first and prior pledge of and lien on said Revenues and said pledge shall at no time be impaired by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will Revenues shall not otherwise be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;
(o) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bondspledged.
Appears in 1 contract
Samples: Intergovernmental Contract
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority hereby represents, “to warrants and agrees with the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.Underwriters as follows:
(a) the The Authority is a joint exercise of powers authority duly organized and validly existing under and pursuant to the laws of the State, with State of California and has full legal right, power and authority to issue, sell and deliver adopt the Bonds to the Underwriters pursuant to the IndentureResolution, and execute, deliver to enter into and to perform its obligations, as the case may be, obligations under this Bond Purchase Agreement, the Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Installment Purchase Agreement and the Tax and Nonarbitrage Certificate executed by the Authority and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the IndentureContract(collectively, the “Legal Authority Documents”) ). The Authority has taken all necessary action and to carry out and consummate has complied with all transactions contemplated by each of the aforesaid documents and the Preliminary Official Statement and the Official Statement, and compliance with the provisions of the Bonds and the Legal Documents will not materially conflict with or constitute a breach of or default under any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument Act required to which make the Authority is a party or may be otherwise subject;
(b) the resolution adopted by the Authority at a regularly scheduled meeting on Documents, 2015 approving when executed and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally legal, valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium or similar and other laws or equitable principles relating to or affecting creditors’ rights generallygenerally or affecting remedies against agencies such as the Authority, to the application of equitable principles, and to the exercise of judicial discretion in appropriate cases;
(eb) at the date hereof and as By official action of the Closing DateAuthority prior to or concurrently with the acceptance hereof, except as otherwise disclosed in the Authority has authorized the distribution of the Preliminary Official Statement and the Official Statement, Statement and authorized and approved the execution and delivery of the Authority will be in compliance with Documents and the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance consummation by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effecttransactions contemplated thereby;
(gc) To the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public vote board or referendum body, pending against the Authority seeking to restrain or proposedenjoin the sale or issuance of the Bonds, or in any way contesting or affecting any proceedings of the Authority taken concerning the sale thereof, the results pledge or application of which could materially adversely affect any moneys or security provided for the transactions contemplated by payment of the Legal DocumentsBonds, the Preliminary Official Statement or the Official Statement or in any way contesting the validity or enforceability of the Authority Documents or the existence or powers of the Authority relating to the sale of the Bonds;
(jd) the Indenture creates a valid pledge of The statements and grant of a first priority security interest information contained in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information Official Statement under the headings captions “THE AUTHORITY” and “LITIGATIONLITIGATION – The Authority” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, are true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement does not contain an untrue statement of any a material fact and does not, and up to and including the Closing will not, or omit any statement or information concerning the Authority which is necessary to make the such statements contained and information therein, in the light of the circumstances in under which such statements they were made, not misleadingmisleading in any material respect;
(me) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise furnish such information, execute such instruments and take such other action in cooperation with the Representative promptly Underwriters, at the expense of the institution Underwriters as the Underwriters may reasonably request in endeavoring (i) to qualify the Bonds for offer and sale under the Blue Sky or other securities laws and regulations of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use such states and other jurisdictions of the Preliminary Official Statement or United States as the Official Statement Underwriters may designate and (ii) to determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions, and will use its best efforts to continue such qualification in connection with the offering, sale or effect so long as required for distribution of the Bonds; provided, however, that in no event shall the Authority be required to take any action which would subject it to general or unlimited service of process in any jurisdiction in which it is not now so subject;
(nf) as The execution and delivery by the Authority of the time of acceptance hereof Authority Documents and as of compliance with the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of provisions on the Authority’s knowledge, the Authority is not and part contained therein will not be in conflict with or constitute a material breach of or in default under any applicable constitutional provisionlaw, law or administrative rule or regulation of the State or the United Statesregulation, or any applicable judgment or decree or any trust agreementjudgment, loan agreementdecree, Installment Purchase Agreement, indenture, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or the properties or assets of the Authority under the terms of any such law, regulation administrative regulation, judgment, decree, Installment Purchase Agreement, indenture, bond, note, resolution, agreement or other instrument, except as may be provided by the Bonds and the Legal Authority Documents;
(og) as If by the 90th day after the End of the time Underwriting Period (as defined herein), an event occurs, of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning the corporate existence of which the Authority has knowledge, which might or would cause the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or information contained in any way contesting or affecting the validity of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement under the heading “THE AUTHORITY” or any supplement “LITIGATION – The Authority” as then supplemented or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any amended, to contain an untrue statement of a material fact or omitted to omit to state any a material fact required to be stated therein or necessary to make the statements such information therein, in the light of the circumstances under which they were madeit was presented, not misleading, nor, to the best knowledge of or if the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution notified by the UnderwritersCity or otherwise requested to amend, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as supplement or otherwise disclosed in the Preliminary Official Statement and change the Official Statement, the Authority has will notify the Underwriters and the City, and if in the opinion of the Underwriters such event requires the preparation and publication of a supplement or amendment to the Official Statement, the Authority will cooperate with the City and the Underwriters to amend or supplement the Official Statement in a form and in a manner approved by the Underwriters, provided all expenses thereby incurred will be paid by the City; and
(h) During the period described in the preceding paragraph, (a) the Authority will not previously failed participate in the issuance of any amendment of or supplement to comply the Official Statement to which, after being furnished with a copy, the City or the Underwriters shall reasonably object in writing or which shall be disapproved by any continuing disclosure obligation undertaken of their respective counsel and (b) if any event relating to or affecting the Authority shall occur as a result of which it is necessary, in the opinion of counsel for the Underwriters, to amend or supplement the Official Statement in order to make the Official Statement not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Authority will cooperate with the City and the Underwriters to prepare and furnish to the Underwriters and the City (at the expense of the City) a reasonable number of copies of an amendment of or supplement to the Official Statement (in form and substance satisfactory to counsel for the Underwriters) which will amend or supplement the Official Statement so that it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Official Statement is delivered to a purchaser, not misleading.
(i) The execution and delivery of this Purchase Contract by the Authority shall constitute a representation by the Authority to the Underwriters that the representations and agreements contained in this Section are true as of the date hereof; provided, however, that as to information furnished by the City pursuant to this Purchase Contract, the Rule. All representationsAuthority is relying solely on such information in making the Authority’s representations and agreements, warranties and agreements as to all matters of law the Authority is relying on the advice of bond counsel or other counsel to the Authority; and provided further, that no member, officer, agent or employee of the governing body of the Authority shall remain operative and in full force and effect, regardless be individually liable for the breach of any investigations made representation, warranty or agreement contained herein.
(j) The Authority hereby certifies that the Preliminary Official Statement has been delivered to the Underwriters which the Authority deems to be final as of its date for purposes of Rule 15c2-12, except for information permitted to be omitted therefrom by or on Rule 15c2-12; provided, however, that the Underwriters’ behalf, and shall survive foregoing certification as to the delivery finality of the BondsPreliminary Official Statement only addresses those statements in the Preliminary Official Statement concerning the Authority under the captions “THE AUTHORITY” and “LITIGATION -- The Authority.”
Appears in 1 contract
Samples: Purchase Contract
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority hereby represents, “to warrants and agrees with the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.Underwriter as follows:
(a) the The Authority is and will be on the Closing Date a joint exercise of powers authority agency duly organized and validly existing under and pursuant to the laws of the State, State with the full legal right, power and authority to issueconduct its business, sell to adopt the Authority Resolution, to issue the Series 2018 Bonds for the purposes described in the Official Statement and to execute and deliver the Bonds Official Statement and enter into this Purchase Agreement and the Financing Documents to the Underwriters pursuant to the Indenturebe executed by it, and executeto consummate the transactions contemplated hereby and thereby;
(b) The Board of Directors of the Authority has duly adopted the Authority Resolution, deliver and perform the Authority has duly authorized and approved the execution and delivery of, and the performance by the Authority of the obligations on its obligationspart contained in, the Financing Documents to be executed by it and the consummation by it of all other transactions of the Authority contemplated by the Official Statement and this Purchase Agreement;
(c) The Series 2018 Bonds, this Purchase Agreement and the Financing Documents to be executed by the Authority, when executed and delivered by the Authority and assuming due execution and delivery by all other parties thereto, will constitute the valid and binding obligations of the Authority, enforceable in accordance with their respective terms except as the case enforceability may bebe subject to applicable limitations of bankruptcy, under insolvency, reorganization, arrangement, fraudulent conveyance, moratorium or equitable principles affecting the enforcement of creditors’ rights. The enforcement of this Bond Purchase Agreement, the Financing Documents and the Series 2018 Bonds are subject to the effect of the general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law, and to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State;
(d) The execution and delivery by the Authority of the Series 2018 Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate Financing Documents to be executed by the Authority and the City (the “Tax Certificate” and collectively with it, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each of the aforesaid documents and the Preliminary Official Statement and the Official Statement, and compliance with the provisions on the Authority’s part contained herein and therein, will not, as of the Bonds and date hereof or as of the Legal Documents will not materially Closing Date, conflict with or constitute a material breach of or material default under any applicable constitutional provision, State or federal law, administrative regulation, court order judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or consent decree other instrument to which the Authority is a party, nor will, as of the date hereof or as of the Closing Date, any such execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties or assets of the Authority under the terms of any such State or federal law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as provided in the Financing Documents;
(e) The Authority is not in material breach of or in material default under any existing law or administrative regulation of the State or the United States of America or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, notice or both, would constitute a default or an event of material default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;
(of) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, There is no action, suit, proceeding, inquiry or investigation, investigation at law or in equity, equity or before or by any State or federal court, government agency, public board or bodybody pending or, is pending or to the best knowledge of the Authority’s knowledge after reasonable investigation, threatened against the Authority (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Series 2018 Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or (ii) in any way contesting or affecting (a) the validity or enforceability of the Series 2018 Bonds, this Purchase Agreement, or the Legal Financing Documents to which the Authority is a party, (b) the existence or powers of the Authority, (c) the transactions contemplated hereby or by the Official Statement or any agreement or instrument to which the Authority is a party or that is used or contemplated for use in the consummation of the transactions contemplated thereby hereby or herebyby the Official Statement, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iiid) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement Statement, or (e) the tax-exempt status of the interest on the Series 2018 Bonds;
(g) No consent, approval, authorization, order, filing, registration, qualification, election or referendum, of or by any State or federal court or State or federal governmental agency or public body is required by the Authority in connection with the issuance, delivery or sale of the Series 2018 Bonds or the Official Statement consummation of the other transactions effected or contemplated herein or hereby, except for such actions as may be necessary to qualify the Series 2018 Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and jurisdictions of the United States of America as the Underwriter may reasonably request, or which have not been taken or obtained; provided, however, that the Authority shall not be required to subject itself to service of process in any supplement or amendment thereto or asserting that jurisdiction in which it is not so subject as of the date hereof;
(h) As of the date thereof, the information and statements contained in the Preliminary Official Statement or under the captions “THE AUTHORITY” and “NO LITIGATION – The Authority” were true and correct, and the Preliminary Official Statement contained with respect to the information under these captions did not contain any untrue statement of a material fact or omitted omit to state any 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, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted therefrom by paragraph (b)(1) Rule 15c2-12; and the Official Statement, as of its date, with respect to the information under these captions does not and will not on the Closing Date contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the Rule; andcircumstances under which they were made, not misleading;
(qi) except as otherwise disclosed If between the date hereof and the date which is 25 days after the End of the Underwriting Period for the Series 2018 Bonds, an event occurs which might or would cause the information contained in the Preliminary Official Statement as then supplemented or amended, to contain any untrue statement of a material fact or to omit to state a material fact required to be stated therein or necessary to make such information therein, in the light of the circumstances under which it was made, not misleading, the Authority will notify the Underwriter, and, if in the opinion of the Authority or the Underwriter, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant will forthwith prepare and furnish to the RuleUnderwriter (at the expense of the County) (i) a reasonable number of copies of an amendment of or supplement to the Official Statement (in form and substance reasonably satisfactory to the Underwriter) which will amend or supplement the Official Statement so that it will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (ii) if such event takes place subsequent to the Closing, such certificates, instruments and other documents as the Underwriter may deem necessary to evidence the truth and accuracy of such supplement or amendment to the Official Statement. All representationsFor the purposes of this subsection, warranties between the date hereof and agreements the date which is 25 days after the End of the Underwriting Period for the Series 2018 Bonds, the Authority will furnish such information with respect to itself as the Underwriter may from time to time reasonably request; and
(j) Any certificate signed by an authorized officer of the Authority delivered to the Underwriter shall remain operative be deemed a representation and in full force and effect, regardless of any investigations warranty by the Authority to the Underwriter as to the statements made by or on the Underwriters’ behalf, and shall survive the delivery of the Bondstherein.
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority represents, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.warrants, and agrees that:
(a) The Authority is a public body corporate and politic created and existing under the Act and, unless otherwise required by law, shall maintain its corporate existence so long as any Bonds are Outstanding. Under the provisions of the Act, the Authority is a joint exercise authorized to enter into and carry out the transactions contemplated by this Contract and the Resolution;
(b) The Authority and the City heretofore have agreed that the Authority will provide financing and services for the undertakings described in the preamble to this Contract by the issuance of powers authority duly organized and validly existing under and pursuant the Bonds as set forth in the Resolution;
(c) There is no litigation or proceeding pending, or to the laws knowledge of the StateAuthority threatened, against the Authority or against any other party which would have a material adverse effect on the right of the Authority to execute this Contract or the ability of the Authority to comply with full legal right, power and authority to issue, sell and deliver the Bonds to the Underwriters pursuant to the Indenture, and execute, deliver and perform any of its obligations, as the case may be, obligations under this Bond Purchase Agreement, the Bonds, the Site Leasethis Contract, the Facility LeaseResolution, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate or any other documents contemplated to be executed by the Authority in connection with the issuance and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each delivery of the aforesaid documents and Bonds;
(d) This Contract, upon execution of the Preliminary Official Statement and same, will constitute the Official Statementlegal, valid, and compliance binding obligation of the Authority in accordance with its terms, and performance by the Authority of its obligations hereunder will not violate, or result in a breach of any of the provisions of the Bonds and the Legal Documents will not materially conflict with of, or constitute a breach of or default under under, any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by which the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generallybound;
(e) at The Authority has not made, done, executed, or suffered, and warrants that it will not make, do, execute, or suffer, any act or thing whereby the date hereof and as of Authority’s or the Closing Date, City’s title to or interest in the Projects will or may be impaired or encumbered in any manner except as otherwise disclosed permitted herein and the Resolution and except for acts or things done or permitted by the City; and
(f) Except as herein and in the Preliminary Official Statement and the Official StatementResolution provided, the Authority will be in compliance with the covenants and agreements contained not encumber any part of its interest in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time Projects or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute Revenues payable under this Contract or its rights under this Contract. The pledge made in the Resolution of the Revenues payable under this Contract constitutes a condition precedent to the due performance first and prior pledge of and lien on said Revenues and said pledge shall at no time be impaired by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will Revenues shall not otherwise be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;
(o) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bondspledged.
Appears in 1 contract
Samples: Intergovernmental Contract
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority represents, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.warrants and agrees as follows:
(a) the The Authority is a joint exercise of powers authority entity duly organized and validly existing under and pursuant to the laws of the StateState of California pursuant to a Joint Exercise of Powers Agreement between the City and the City of Milpitas Housing Authority, with dated as of March 1, 2016 (the “JPA Agreement”).
(b) The Authority has full legal right, power and authority (i) to issueenter into, execute and deliver the Authority Documents and to sell and deliver the Bonds to the Underwriters pursuant to the Indenture, Underwriter as provided herein; and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase Agreement, the Bonds, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate executed by the Authority and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”ii) and to carry out and consummate all the transactions on its part contemplated by each the Authority Documents and the Official Statement.
(c) By all necessary official action, the Authority has duly authorized and approved the issuance of the aforesaid documents Bonds and the Authority Documents, has duly authorized and approved the Preliminary Official Statement and the Official StatementStatement and approved the distribution thereof (including in electronic form), has duly authorized and approved the execution and delivery of, and compliance the performance by the Authority of the obligations in connection with the provisions execution and delivery of the Bonds on its part contained in the Bonds and the Legal Authority Documents, and the consummation by it of all other transactions contemplated by the Authority Documents in connection with the execution and delivery of the Bonds, all pursuant to the Authority Resolution adopted at a meeting duly called and held in accordance with the requirements of all applicable laws and at which a quorum of the board members of the Authority was continuously present. The Authority Resolution has not been modified, amended or rescinded since the date of its adoption and each Authority Document is or will be, when delivered, as applicable, the valid and binding obligation of the Authority.
(d) The Authority is not materially conflict with or constitute a in any material respect in breach of or default under any applicable constitutional provision, lawlaw or administrative regulation of the State of California or of the United States, administrative regulationor any agency or instrumentality of either, court order or consent decree or any applicable judgment or decree decree, or the JPA Agreement, or any loan agreement, indenture, bond, note, resolution, indentureagreement (including, agreement without limitation, the Authority Documents) or other instrument to which the Authority is a party which breach or default has or may be otherwise subject;
(b) have an adverse effect on the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting ability of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of perform its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, which with the passage of time or the giving of notice, or both, would constitute such a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement Bonds and the Tax Certificate and the Bonds Authority Documents, and compliance with the provisions of each of on the Legal Documents and the Bonds do not and Authority’s part contained therein, will not conflict in any material way with or constitute a material breach of or a material default under any applicable constitutional provision, law or law, administrative rule or regulation of the State or the United States or any applicable regulation, judgment, decree, license, permit, trust agreement, loan agreement, bondindenture, Bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; a party nor will any such authorization, execution, delivery 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 its the Leased Property or assets or properties of the Authority or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Authority Documents;.
(oe) as All authorizations, approvals, licenses, permits, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction of the time matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of acceptance hereof and which would materially adversely affect the Closingdue performance by, the Authority of its obligations in connection with the issuance of the Bonds under the Authority Documents or the consummation by it of all other transactions contemplated by the Authority Documents, including all filings with the California Secretary of State, have been duly obtained, except for such approvals, consents and orders as disclosed may be required under the Blue Sky or securities laws of any state in Preliminary Official Statement connection with the offering and sale of the Bonds; except as described in or contemplated by the Official Statement, all authorizations, approvals, licenses, permits, consents and orders of any governmental authority, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the Authority of its obligations under the Bonds and the Authority Documents have been duly obtained.
(f) The Bonds, when executed, issued, authenticated and delivered in accordance with the Indenture, and sold to the Underwriter as provided herein, will be validly executed and outstanding obligations, entitled to the benefits of the Indenture, and upon such execution and delivery, the Indenture will provide, for the benefit of the Owners from time to time of the Bonds, the legally valid and binding security interest it purports to create.
(g) There is no action, suit, proceeding, inquiry or investigation, notice of which has been duly served on the Authority, at law or in equity, equity before or by any court, government agency, public board or body, is pending or to the best knowledge of the Authority’s knowledge after reasonable investigationofficer of the Authority executing this Bond Purchase Agreement, threatened (i) in any way questioning against the corporate Authority, affecting the existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority its officers to their respective offices; (ii) affecting, contesting or affecting or seeking to prohibit, restrain or enjoin the sale, issuance, sale execution or delivery of any of the BondsBonds pursuant to the Indenture, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting as to the Authority the validity or enforceability of the Bonds, the Legal Documents Bonds or the consummation of the transactions contemplated thereby or herebyAuthority Documents, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement Statement, or contesting the powers of the Authority to cause the issuance of the Bonds, or the execution and delivery or adoption by the Authority of the Authority Documents, or in any supplement way contesting or amendment thereto challenging the consummation of the transactions contemplated hereby or asserting thereby; nor, to the best knowledge of the Authority, is there any basis for any such action, suit, proceeding, inquiry or investigation, wherein an unfavorable decision, ruling or finding would materially adversely affect the validity of the Bonds or the authorization, execution, delivery or performance by the Authority of the Bonds or the Authority Documents.
(h) The Authority will furnish such information, execute such instruments and take such other action in cooperation with the Underwriter as the Underwriter may reasonably request in order (i) to qualify the Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions of the United States as the Underwriter may designate and (ii) to determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions, and will use its best efforts to continue such qualifications in effect so long as required for the distribution of the Bonds; provided, however, that the Authority shall not be required to execute a general or special consent to service of process or qualify to do business in connection with any such qualification or determination in any jurisdiction, and the Underwriter shall bear all costs in connection with the foregoing.
(i) As of the date thereof, the Preliminary Official Statement or did not, except for the Official Statement contained omission of certain information permitted to be omitted in accordance with the Rule, contain any untrue statement of a material fact or omitted omit to state any a material fact required necessary to be stated make the statements therein, in the light of the circumstances under which they were made, not misleading.
(j) At the time of the Authority’s acceptance hereof, and (unless an event occurs of the nature described in paragraph (l) of this Section 5) at all times subsequent thereto up to and including the Closing Date, the information under the caption “THE AUTHORITY” in the Official Statement (other than information therein provided by the Underwriter) did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) If the Official Statement is supplemented or amended pursuant to paragraph (l) of this Section 7, at the time of each supplement or amendment thereto and (unless subsequently again supplemented or amended pursuant to such paragraph) at all times subsequent thereto up to and including the Closing Date, the Official Statement (other than information therein provided by the Underwriter) as so supplemented or amended will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(l) If between the date of this Bond Purchase Agreement and that date which is 25 days after the end of the underwriting period (as determined in accordance with Section 15 hereof) any event of which the officer of the Authority executing this Bond Purchase Agreement has knowledge shall occur affecting the Authority which might adversely affect the marketability of the Bonds or the market prices thereof, or which might cause the Official Statement, as then supplemented or amended, to contain any untrue statement of a material fact or to omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, northe Authority shall notify the Underwriter thereof, to and if in the best knowledge opinion of the Authority is there any basis for any action, suit, proceeding, inquiry Underwriter such event requires the preparation and publication of a supplement or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior amendment to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed will at its expense prepare and furnish to comply with the Underwriter a reasonable number of copies of such supplement to, or amendment of, the Official Statement in a form and in a manner approved by the City, Bond Counsel, Disclosure Counsel and the Underwriter.
(m) Any certificate signed by any continuing disclosure obligation undertaken officer of the Authority and delivered to the Underwriter pursuant to the Rule. All representations, warranties Authority Documents or any document contemplated thereby or required for the valid execution and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the BondsBonds shall be deemed a representation and warranty by the Authority to the Underwriter as to the statements made therein.
(n) The Authority will cause the proceeds from the sale of the Bonds to be paid to the Trustee for the purposes specified in the Indenture and the Official Statement. So long as any of the Bonds are outstanding and except as may be authorized by the Indenture, the Authority will not issue or sell any bonds or other obligations, other than the Bonds delivered thereunder, the interest on and premium, if any, or principal of which will be payable from the Revenues.
(o) The Authority shall honor all other covenants on its part contained in the Indenture and the Lease Agreement which are incorporated herein and made a part of this Bond Purchase Agreement.
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority represents, “to the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.warrants, and agrees that:
(a) The Authority is a public body corporate and politic created and existing under the Act and, unless otherwise required by law, shall maintain its corporate existence so long as the Bond is Outstanding. Under the provisions of the Act, the Authority is a joint exercise authorized to enter into and carry out the transactions contemplated by this Contract and the Resolution;
(b) The Authority and the City heretofore have agreed that the Authority will provide financing and services for the undertakings described in the preamble to this Contract by the issuance of powers authority duly organized and validly existing under and pursuant the Bond as set forth in the Resolution;
(c) There is no litigation or proceeding pending, or to the laws knowledge of the StateAuthority threatened, against the Authority or against any other party which would have a material adverse effect on the right of the Authority to execute this Contract or the ability of the Authority to comply with full legal rightany of its obligations under the Bond, power and authority to issue, sell and deliver the Bonds to the Underwriters pursuant to the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase AgreementContract, the BondsResolution, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate or any other documents contemplated to be executed by the Authority in connection with the issuance and the City (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each delivery of the aforesaid documents and Bond;
(d) This Contract, upon execution of the Preliminary Official Statement and same, will constitute the Official Statementlegal, valid, and compliance binding obligation of the Authority in accordance with its terms, and performance by the Authority of its obligations hereunder will not violate, or result in a breach of any of the provisions of the Bonds and the Legal Documents will not materially conflict with of, or constitute a breach of or default under under, any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by which the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generallybound;
(e) at The Authority has not made, done, executed, or suffered, and warrants that it will not make, do, execute, or suffer, any act or thing whereby the date hereof and as of Authority’s or the Closing Date, City’s title to or interest in the Project will or may be impaired or encumbered in any manner except as otherwise disclosed permitted herein and the Resolution and except for acts or things done or permitted by the City; and
(f) Except as herein and in the Preliminary Official Statement and the Official StatementResolution provided, the Authority will be in compliance with the covenants and agreements contained not encumber any part of its interest in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time Project or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute Revenues payable under this Contract or its rights under this Contract. The pledge made in the Resolution of the Revenues payable under this Contract constitutes a condition precedent to the due performance first and prior pledge of and lien on said Revenues and said pledge shall at no time be impaired by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will Revenues shall not otherwise be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Legal Documents;
(o) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending or to the best of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive the delivery of the Bondspledged.
Appears in 1 contract
Samples: Intergovernmental Contract
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority hereby represents, “to warrants and agrees with the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.Underwriter as follows:
(a) The Authority is, and will be on the Authority is Closing Date, a joint exercise powers agency of powers authority duly the State of California organized and validly existing under and operating pursuant to the laws of the State, State of California with the full legal right, power and authority to issueissue the 2024-A Bonds pursuant to the Act, sell to execute and deliver the Bonds Official Statement and to enter into the Underwriters pursuant to the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Installment Purchase Agreement, the Bonds, the Site Lease, the Facility Lease, the Trust Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate executed by the Authority and the City this Purchase Contract (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenturecollectively, the “Legal Authority Documents”) and, when executed and to carry out delivered by the respective parties thereto, the Authority Documents will constitute the legal, valid and consummate all transactions contemplated by each binding obligations of the aforesaid documents and Authority in accordance with their respective terms.
(b) By all necessary official action of the Authority prior to or concurrently with the acceptance hereof, the Authority has duly approved the distribution of the Preliminary Official Statement and the execution, delivery and distribution of the Official Statement, and compliance with has duly authorized and approved the provisions execution and delivery of, and the performance by the Authority of the Bonds obligations on its part contained in, the Authority Documents and the Legal Documents will consummation by it of all other transactions contemplated by the Preliminary Official Statement and the Authority Documents.
(c) The Authority is not materially conflict with or constitute a in breach of or default under any applicable constitutional provision, law, law or administrative regulation, court order or consent decree regulation to which it is subject or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be to which the Authority or any of its property or assets is otherwise subject;
(b) the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder has occurred and no event, which, is continuing which with the passage of time or the giving of notice, or both, would constitute an such a default or event of default thereunder has occurred in any material respect under any such instrument; and is continuing;
(f) all approvals, consents and orders the issuance of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the 2024-A Bonds and the Legal Documents have been duly obtained or made, execution and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date delivery of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement Documents and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection compliance with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of provisions on the Authority’s knowledgepart contained herein and therein, the Authority is not and will not be in any material respect conflict with or constitute a breach of or in default under any applicable constitutional provisionlaw, law or administrative rule or regulation of the State or the United Statesregulation, or any applicable judgment or decree or any trust agreementjudgment, decree, loan agreement, indenture, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or the properties or assets of the Authority under the terms of any such law, regulation administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as may be provided by in the Bonds and Trust Indenture or the Legal Documents;Installment Purchase Agreement.
(od) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government governmental agency, public board or body, is pending or or, to the best knowledge of the Authority’s knowledge Authority after reasonable investigation, threatened (i) against the Authority in any way questioning material respect affecting the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority its officers to their respective offices; (ii) affecting, contesting offices or affecting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any the 2024- A Bonds or contesting or affecting, as to the Authority, the validity or enforceability of the Bonds, 2024-A Bonds or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Authority Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue enter into, adopt or perform its obligations under any of the Bonds; (iii) which may result foregoing, or contesting in any material adverse change relating to the Authority; or (iv) contesting way the completeness or accuracy of the Preliminary Official Statement or the Official Statement Statement, or any amendment or supplement thereto, wherein an unfavorable decision, ruling or amendment thereto finding would materially adversely affect the validity or asserting that enforceability of the Authority Documents.
(e) All authorizations, approvals, licenses, permits, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the Authority of its obligations in connection with the issuance of the 2024-A Bonds under the Trust Indenture have been duly obtained, except for such approvals, consents and orders as may be required under the Blue Sky or securities laws of any state in connection with the offering and sale of the 2024-A Bonds; and, except as described in or contemplated by the Preliminary Official Statement and the Official Statement, all authorizations, approvals, licenses, permits, consents and orders of any governmental authority, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the Authority of its obligations under the Authority Documents have been duly obtained.
(f) The Authority will furnish such information, execute such instruments and take such other action in cooperation with the Underwriter as the Underwriter may reasonably request in order (i) to qualify the 2024-A Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions of the United States as the Underwriter may designate and (ii) to determine the eligibility of the 2024-A Bonds for investment under the laws of such states and other jurisdictions, and will use its best efforts to continue such qualification in effect so long as required for distribution of the 2024-A Bonds; provided, however, that in no event shall the Authority be required to take any action which would subject it to service of process in any jurisdiction in which it is not now so subject.
(g) As of its date and the date hereof, the Preliminary Official Statement contained (excluding information concerning DTC, Cede & Co., and the book-entry system (collectively, the “Excluded Information”), as to which no representation is made) did not, except as to the information permitted to be omitted by Rule 15c2-12, contain any untrue statement of a material fact or omitted omit to state any a material fact required necessary to be stated therein make the statements therein, in light of the circumstances under which they were made, not misleading.
(h) As of the date thereof and at all times subsequent thereto to and including the date which is 25 days following the End of the Underwriting Period (as such term is hereinafter defined) for the 2024-A Bonds, the Official Statement (excluding the Excluded Information, as to which no representation is made) did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(i) If between the date hereof and the date which is 25 days after the End of the Underwriting Period for the 2024-A Bonds, an event occurs which might or would cause the information contained in the Official Statement, as then supplemented or amended, to contain an untrue statement of a material fact or to omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Authority will notify the Underwriter, and, if in the opinion of the Authority, the Underwriter or their respective counsel, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the Authority will forthwith prepare and furnish to the Underwriter (at the expense of the Authority, except in the case of supplements or amendments to the Excluded Information) a reasonable number of copies of an amendment of or supplement to the Official Statement (in form and substance satisfactory to the Underwriter) which will amend or supplement the Official Statement so that it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Official Statement is delivered to prospective purchasers, not misleading. For the purposes of this subsection, between the date hereof and the date which is 25 days after the End of the Underwriting Period for the 2024-A Bonds, the Authority will furnish such information with respect to itself as the Underwriter may from time to time reasonably request.
(j) If the information contained in the Official Statement is amended or supplemented pursuant to paragraph (i) of this Section 4, at the time of each supplement or amendment thereto and (unless subsequently again supplemented or amended pursuant to such paragraph) at all times subsequent thereto up to and including the date which is 25 days after the End of the Underwriting Period for the 2024-A Bonds, the portions of the Official Statement so supplemented or amended (other than the Excluded Information) will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) After the Closing Date, nor, the Authority will not participate in the issuance of any amendment of or supplement to the best knowledge Official Statement to which, after being furnished with a copy, the Underwriter shall reasonably object in writing.
(l) As used herein and for the purposes of the foregoing, the term “End of the Underwriting Period” for the 2024-A Bonds shall mean the earlier of (i) the Closing Date unless the Authority shall have been notified in writing to the contrary by the Underwriter on or prior to the Closing Date, or (ii) the date on which the End of the Underwriting Period for the 2024-A Bonds has occurred under Rule 15c2-12; provided, however, that the Authority may treat as the End of the Underwriting Period for the 2024-A Bonds the date specified as such in a notice from the Underwriter stating the date which is the End of the Underwriting Period.
(m) The Authority will apply, or cause the application of, the proceeds of the 2024-A Bonds in accordance with the Installment Purchase Agreement and the Trust Indenture.
(n) All of the representations and warranties of the Authority is there as are set forth by it in the Dealer Manager Agreement (or incorporated by reference into the Dealer Manager Agreement), are true and correct in all material respects.
(o) Any certificate signed by any basis for any action, suit, proceeding, inquiry or investigation authorized official of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the RuleAuthority, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant delivered to the Rule. All representations, warranties and agreements of the Authority shall remain operative and Underwriter in full force and effect, regardless of any investigations made by or on the Underwriters’ behalf, and shall survive connection with the delivery of the 2024-A Bonds, shall be deemed a representation and warranty by the Authority to the Underwriter as to the statements made therein.
Appears in 1 contract
Samples: Purchase Contract
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority hereby represents, “to warrants and agrees with the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.Underwriter as follows:
(a) The Authority is, and will be on the Authority is Closing Date, a joint exercise powers agency of powers authority duly the State of California organized and validly existing under and operating pursuant to the laws of the State, State of California with the full legal right, power and authority to issueissue the Bonds pursuant to the Act, sell to execute and deliver the Bonds Official Statement and to enter into the Underwriters pursuant to the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Installment Purchase Agreement, the Bonds, the Site Lease, the Facility Lease, the Trust Indenture, the Escrow Reimbursement Agreement and the Tax and Nonarbitrage Certificate executed by the Authority and the City this Purchase Contract (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Assignment Agreement, the Escrow Agreement and the Indenturecollectively, the “Legal Authority Documents”) and, when executed and to carry out delivered by the respective parties thereto, the Authority Documents will constitute the legal, valid and consummate all transactions contemplated by each binding obligations of the aforesaid documents and Authority in accordance with their respective terms.
(b) By all necessary official action of the Authority prior to or concurrently with the acceptance hereof, the Authority has duly approved the distribution of the Preliminary Official Statement and the execution, delivery and distribution of the Official Statement, and compliance with has duly authorized and approved the provisions execution and delivery of, and the performance by the Authority of the Bonds obligations on its part contained in, the Authority Documents and the Legal Documents will consummation by it of all other transactions contemplated by the Preliminary Official Statement and the Authority Documents.
(c) The Authority is not materially conflict with or constitute a in breach of or default under any applicable constitutional provision, law, law or administrative regulation, court order or consent decree regulation to which it is subject or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be to which the Authority or any of its property or assets is otherwise subject;
(b) , and no event has occurred and is continuing which with the resolution adopted by passage of time or the Authority at giving of notice, or both, would constitute such a regularly scheduled meeting on , 2015 approving default or event of default in any material respect under any such instrument; and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in Documents and compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of provisions on the Authority’s knowledgepart contained herein and therein, the Authority is not and will not be in any material respect conflict with or constitute a breach of or in default under any applicable constitutional provisionlaw, law or administrative rule or regulation of the State or the United Statesregulation, or any applicable judgment or decree or any trust agreementjudgment, decree, loan agreement, indenture, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or the properties or assets of the Authority under the terms of any such law, regulation administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as may be provided by in the Bonds and Trust Indenture or the Legal Documents;Installment Purchase Agreement.
(od) as of the time of acceptance hereof and the Closing, except as disclosed in Preliminary Official Statement and the Official Statement, There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government governmental agency, public board or body, is pending or or, to the best knowledge of the Authority’s knowledge Authority after reasonable investigation, threatened (i) against the Authority in any way questioning material respect affecting the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority its officers to their respective offices; (ii) affecting, contesting offices or affecting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any the Bonds or contesting or affecting, as to the Authority, the validity or enforceability of the Bonds, Bonds or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Legal Authority Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the powers of the Authority or its authority to issue enter into, adopt or perform its obligations under any of the Bonds; (iii) which may result foregoing, or contesting in any material adverse change relating to the Authority; or (iv) contesting way the completeness or accuracy of the Preliminary Official Statement or the Official Statement Statement, or any amendment or supplement thereto, wherein an unfavorable decision, ruling or amendment thereto finding would materially adversely affect the validity or asserting that enforceability of the Authority Documents.
(e) All authorizations, approvals, licenses, permits, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the Authority of its obligations in connection with the issuance of the Bonds under the Trust Indenture have been duly obtained, except for such approvals, consents and orders as may be required under the Blue Sky or securities laws of any state in connection with the offering and sale of the Bonds; and, except as described in or contemplated by the Preliminary Official Statement and the Official Statement, all authorizations, approvals, licenses, permits, consents and orders of any governmental authority, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the Authority of its obligations under the Authority Documents have been duly obtained.
(f) The Authority will furnish such information, execute such instruments and take such other action in cooperation with the Underwriter as the Underwriter may reasonably request in order (i) to qualify the Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions of the United States as the Underwriter may designate and (ii) to determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions, and will use its best efforts to continue such qualification in effect so long as required for distribution of the Bonds; provided, however, that in no event shall the Authority be required to take any action which would subject it to service of process in any jurisdiction in which it is not now so subject.
(g) As of its date and the date hereof, the Preliminary Official Statement contained (excluding information concerning DTC, Cede & Co., and the book-entry system (collectively, the “Excluded Information”), as to which no representation is made) did not, except as to the information permitted to be omitted by Rule 15c2-12, contain any untrue statement of a material fact or omitted omit to state any a material fact required necessary to be stated therein make the statements therein, in light of the circumstances under which they were made, not misleading.
(h) As of the date thereof and at all times subsequent thereto to and including the date which is 25 days following the End of the Underwriting Period (as such term is hereinafter defined) for the Bonds, the Official Statement (excluding the Excluded Information, as to which no representation is made) did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(i) If between the date hereof and the date which is 25 days after the End of the Underwriting Period for the Bonds, an event occurs which might or would cause the information contained in the Official Statement, as then supplemented or amended, to contain an untrue statement of a material fact or to omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Authority will notify the Underwriter, and, if in the opinion of the Authority, the Underwriter or their respective counsel, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the Authority will forthwith prepare and furnish to the Underwriter (at the expense of the Authority, except in the case of supplements or amendments to the Excluded Information) a reasonable number of copies of an amendment of or supplement to the Official Statement (in form and substance satisfactory to the Underwriter) which will amend or supplement the Official Statement so that it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Official Statement is delivered to prospective purchasers, not misleading. For the purposes of this subsection, between the date hereof and the date which is 25 days after the End of the Underwriting Period for the Bonds, the Authority will furnish such information with respect to itself as the Underwriter may from time to time reasonably request.
(j) If the information contained in the Official Statement is amended or supplemented pursuant to paragraph (i) of this Section 4, at the time of each supplement or amendment thereto and (unless subsequently again supplemented or amended pursuant to such paragraph) at all times subsequent thereto up to and including the date which is 25 days after the End of the Underwriting Period for the Bonds, the portions of the Official Statement so supplemented or amended (other than the Excluded Information) will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) After the Closing Date, nor, the Authority will not participate in the issuance of any amendment of or supplement to the best knowledge Official Statement to which, after being furnished with a copy, the Underwriter shall reasonably object in writing.
(l) As used herein and for the purposes of the Authority is there any basis for any actionforegoing, suit, proceeding, inquiry or investigation the term “End of the nature described in clauses Underwriting Period” for the Bonds shall mean the earlier of (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rule. All representations, warranties and agreements of Closing Date unless the Authority shall remain operative have been notified in writing to the contrary by the Underwriter on or prior to the Closing Date, or (ii) the date on which the End of the Underwriting Period for the Bonds has occurred under Rule 15c2-12; provided, however, that the Authority may treat as the End of the Underwriting Period for the Bonds the date specified as such in a notice from the Underwriter stating the date which is the End of the Underwriting Period.
(m) The Authority will apply, or cause the application of, the proceeds of the Bonds in accordance with the Installment Purchase Agreement and in full force and effect, regardless the Trust Indenture.
(n) Any certificate signed by any authorized official of any investigations made by or on the Underwriters’ behalfAuthority, and shall survive delivered to the Underwriter in connection with the delivery of the Bonds, shall be deemed a representation and warranty by the Authority to the Underwriter as to the statements made therein.
Appears in 1 contract
Samples: Purchase Contract
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority represents, “to warrants and covenants with the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.Underwriter that:
(a) the Authority is a joint exercise of powers authority entity duly organized and validly existing under and pursuant to the laws of the State, State with full legal right, power and authority to issue, sell and deliver the Bonds to the Underwriters Underwriter pursuant to the Indenture, and execute, deliver and perform its obligations, as the case may be, under this Bond Purchase Agreement, the BondsIndenture, Facility Lease, the Site Lease, the Facility Leasedated as of December 1, the Indenture, the Escrow Agreement and the Tax and Nonarbitrage Certificate executed by the Authority and the City 2019 (the “Tax Certificate” and collectively with this Bond Purchase Agreement, the Site Lease”), by and between the Facility LeaseCity and the Authority, the Assignment Agreement, dated as of December 1, 2019 (the Escrow Agreement “Assignment Agreement”), by and between the Authority and the IndentureTrustee, and the Bonds (collectively, the “Authority Legal Documents”) ), and to carry out and consummate all transactions contemplated by each of the aforesaid documents and the Preliminary Official Statement and the Official Statement, and compliance with the provisions of the Bonds and the Authority Legal Documents will not materially conflict with or constitute a breach of or default under any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or it or any of its assets may be otherwise subject;
(b) the resolution Resolution adopted by the Authority at a regularly scheduled meeting on , 2015 2019 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement Authority Legal Documents and the Tax Certificate preparation and distribution of the Preliminary Official Statement and the Official Statement (the “Authority Resolution”) was duly adopted at a meeting of the governing board of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters Underwriter in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the issuance of the Bonds and the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, Authority Legal Documents and when executed and delivered, the Bonds and the Authority Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, as applicable, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date and as of the Settlement Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Authority Legal Documents, and no event of default thereunder and no event, event has occurred and is continuing which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has shall have occurred and is be continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax CertificateCertificate executed by the Authority in connection with the delivery of the Bonds;
(hg) any certificate signed by any officer of the Authority and delivered to the Underwriters Underwriter pursuant to the Authority Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters Underwriter as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(jh) the Indenture creates a valid pledge of and grant of a first priority security interest first, direct and exclusive charge and lien on the Revenues (as defined in the Revenues Indenture) purported to be pledged thereby, subject to no prior pledges pledges, liens or security interests;
(ki) the information under the headings “THE AUTHORITY” and “ABSENCE OF LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, Statement as of the its date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing and the Settlement will be, true and correct in all material respects, and such information in the Official Statement contains, contains and up to and including the Closing and the Settlement will contain, contain no misstatement of any material fact and does not, and up to and including the Closing and the Settlement will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(mj) the Authority will advise the Representative Underwriter promptly of any proposal to amend or supplement the Official Statement and will not effect affect or consent to any such amendment or supplement without the consent of the RepresentativeUnderwriter, which consent will not be unreasonably withheld. The Authority will advise the Representative Underwriter promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(nk) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement Closing and the Official StatementSettlement, to the best of the Authority’s its knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or it or any of its assets is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, instrument which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Authority Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate Authority Legal Documents and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds such agreements or instruments do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound; nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and the Authority Legal Documents;; and
(ol) as of the time of acceptance hereof and the ClosingClosing and the Settlement, except as disclosed in the Preliminary Official Statement and the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending or (notice of which has been properly served on and received by the Authority) or, to the best of the Authority’s knowledge after reasonable investigation, threatened (i) in any way questioning the corporate existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer officers of the Authority to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, the Authority Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal Federal income tax purposes or contesting the powers of the Authority or its authority to issue the Bonds; (iii) which may result in any material adverse change relating to the Authority; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, nor, to the best knowledge of the Authority and there is there any no basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this clause (o);
(p) for purposes of the Rule, the Authority has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriters, except for the information specifically permitted to be omitted by paragraph (b)(1) of the Rule; and
(q) except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant to the Rulesentence. All representations, warranties and agreements of the Authority shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriters’ Underwriter’s behalf, and shall survive the delivery of the Bonds.
Appears in 1 contract
Representations, Warranties and Agreements of the Authority. For purposes of this Section 6The Authority hereby represents, “to warrants and agrees with the best of the Authority’s knowledge” means to the best knowledge of the officers thereof.Underwriters as follows:
(a) the The Authority is a joint exercise of powers authority duly organized organized, existing and validly existing under and operating pursuant to the laws of the StateState of California, including Articles 1 through 4 (commencing with Section 6500) of Chapter 5, Division 7 of the California Government Code, with the full legal right, power and authority to issue, sell execute and deliver the Bonds to the Underwriters pursuant to the IndentureOfficial Statement, and executeto enter into this Bond Purchase Agreement and the Legal Documents to which the Authority is a party;
(b) By all necessary official action of the Authority prior to or concurrent with the acceptance hereof, deliver the Authority has duly authorized and perform approved the execution and delivery of, and the performance by the Authority of the obligations on its obligationspart contained in, as the case may beLegal Documents, under the Official Statement and this Bond Purchase Agreement, and the Bondsconsummation by it of all other transactions contemplated by the Official Statement and this Bond Purchase Agreement;
(c) The Authority represents to the Underwriters that the Preliminary Official Statement relating to the 2013A Bonds (including the cover page, the Site Leaseintroduction and all appendices thereto, the Facility Lease"Preliminary Official Statement"), the Indenturedated , the Escrow Agreement and the Tax and Nonarbitrage Certificate executed 2013, has been "deemed final" by the Authority as of its date within the meaning of paragraph (b)(1) of Rule 15c2-12, except for the omission of some or all of such information the omission of which is permitted under Rule 15c2-12. The Preliminary Official Statement as of its date and as of the City date hereof does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(the “Tax Certificate” d) The Legal Documents and collectively with this Bond Purchase Agreement, when duly executed and delivered by the Site Leaseparties thereto, will constitute valid and binding obligations of the Facility LeaseAuthority, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws affecting the Assignment Agreementenforcement of creditors' rights in general and to the application of equitable principles, whether or not equitable principles are sought, and to the Escrow exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State, including the City and the Authority;
(e) The execution and delivery of the Legal Documents, this Bond Purchase Agreement and the Indenture, the “Legal Documents”) and to carry out and consummate all transactions contemplated by each of the aforesaid documents and the Preliminary Official Statement and by the Official StatementAuthority, and compliance with the provisions of on the Bonds Authority's part contained herein and the Legal Documents therein, will not materially in any material respect conflict with or constitute a breach of or default under any applicable constitutional provision, law, administrative regulation, court order or consent decree or any applicable judgment or decree or any loan agreement, note, resolution, indenture, agreement or other instrument to which the Authority is a party or may be otherwise subject;
(b) the resolution adopted by the Authority at a regularly scheduled meeting on , 2015 approving and authorizing the issuance of the Bonds and the execution and delivery by the Authority of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate (the “Authority Resolution”) was duly adopted at a meeting of the Authority 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 is in full force and effect and has not been amended or repealed;
(c) when delivered by the Authority and paid for by the Underwriters in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed and delivered and will constitute the valid and binding limited obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture;
(d) the Authority has duly authorized and approved the execution and delivery of the Bonds, this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate, and when executed and delivered, the Bonds and the Legal Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally;
(e) at the date hereof and as of the Closing Date, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, the Authority will be in compliance with the covenants and agreements contained in the Legal Documents, and no event of default thereunder and no event, which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder has occurred and is continuing;
(f) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the due performance by the Authority of its obligations under the Bonds and the Legal Documents have been duly obtained or made, and are, and will be as of the Closing Date, in full force and effect;
(g) the Authority will comply with the requirements of the Tax Certificate;
(h) any certificate signed by any officer of the Authority and delivered to the Underwriters pursuant to the Legal Documents or any document contemplated hereby or thereby shall be deemed a representation and warranty by the Authority to the Underwriters as to the statements made therein and that such officer shall have been duly authorized to execute the same;
(i) to the best knowledge of the Authority, as of the date hereof and as of the Closing Date, there is no public vote or referendum pending or proposed, the results of which could materially adversely affect the transactions contemplated by the Legal Documents, the Preliminary Official Statement or the Official Statement or the validity or enforceability of the Bonds;
(j) the Indenture creates a valid pledge of and grant of a first priority security interest in the Revenues purported to be pledged thereby, subject to no prior pledges or security interests;
(k) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement, as of the date of the Preliminary Official Statement and as of the date hereof, was and is true and correct in all material respects, and did not and does not contain a misstatement of any material fact or omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(l) the information under the headings “THE AUTHORITY” and “LITIGATION” (as it relates to the Authority) in the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and such information in the Official Statement contains, and up to and including the Closing will contain, no misstatement of any material fact and does not, and up to and including the Closing will not, omit any statement necessary to make the statements contained therein, in the light of the circumstances in which such statements were made, not misleading;
(m) the Authority will advise the Representative promptly of any proposal to amend or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent of the Representative, which consent will not be unreasonably withheld. The Authority will advise the Representative promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Preliminary Official Statement or the Official Statement in connection with the offering, sale or distribution of the Bonds;
(n) as of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Preliminary Official Statement and the Official Statement, to the best of the Authority’s knowledge, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, which breach or default would materially adversely affect the security of the Bonds or the Authority’s performance under the Legal Documents; and, as of such times, except as disclosed in the Preliminary Official Statement and the Official Statement, the authorization, execution and delivery of this Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Escrow Agreement and the Tax Certificate and the Bonds and compliance with the provisions of each of the Legal Documents and the Bonds do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States subject or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance agreement judgment or other instrument decree to which the Authority is a party or is otherwise subject (or any and of its officers in their respective capacities as such) is subjectwhich the Authority has knowledge), or by which it or any of its properties is bound; nor will any such authorization, execution, delivery delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or the properties or assets of the Authority under the terms of any such law, regulation administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as may be provided by the Bonds and in the Legal DocumentsDocuments and disclosed in the Official Statement;
(of) Except as of the time of acceptance hereof and the Closing, except as is otherwise disclosed in Preliminary Official Statement and the Official Statement, the Authority is not in any material respect in breach of, or in default under, any applicable law or administrative regulation of the State of California or the United States of America or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the Authority is a party or is otherwise subject or any judgment or decree to which the Authority is a party or is otherwise subject (and of which the Authority has knowledge) that would have a materially adverse effect on the transactions contemplated hereby or by the Official Statement or on the Authority's liabilities and obligations under the Legal Documents to which it is a party, and no event has occurred and is continuing that, with the passage of time or the giving of notice or both, would constitute a default or an event of default under any such instrument that would have a materially adverse effect on the transactions contemplated hereby or by the Official Statement or on the Authority's liabilities and obligations under the Legal Documents to which it is a party;
(g) Except as otherwise disclosed in the Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government governmental agency, public board or body, that has been served on the Authority and that is now pending or or, to the best knowledge of the official executing this Bond Purchase Agreement on the Authority’s knowledge after reasonable investigation's behalf, threatened (i) against the Authority in any way questioning material respect affecting the corporate Project, the existence of the Authority or the titles of the Commissioners, Chair, Vice-Chair or Secretary and Treasurer of the Authority its officers to their respective offices; (ii) affecting, contesting offices or seeking to prohibit, restrain or enjoin the issuance, sale sale, or delivery of any the 2013A Bonds or the receipt of the BondsLease Payments or the Additional Payments, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity or enforceability of the Bonds, the Legal Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes this Bond Purchase Agreement or contesting the powers of the Authority or its authority to issue enter into, adopt or perform its obligations under any of the Bonds; (iii) which may result in any material adverse change relating to the Authority; foregoing, or (iv) contesting the completeness or accuracy of the Preliminary Official Statement Statement, or any amendment or supplement thereto, wherein an unfavorable decision, ruling or finding would materially adversely affect the validity or enforceability of the Legal Documents or this Bond Purchase Agreement;
(h) The Authority will furnish such information, execute such instruments and take such other action in cooperation with the Underwriters as the Underwriters may reasonably request in order (i) to qualify the 2013A Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions of the United States (collectively, "Blue Sky laws") as the Underwriters may designate and (ii) to determine the eligibility of the 2013A Bonds for investment under the laws of such states and other jurisdictions, and will use its best efforts to continue such qualification in effect so long as required for distribution of the 2013A Bonds (at the sole expense of the Underwriters); provided, however, that in no event shall the Authority be required to take any action that would subject it to general or unlimited service of process in any jurisdiction in which it is not now so subject; and provided, further, that notwithstanding the foregoing, nothing in this Bond Purchase Agreement shall impose any past or future requirement upon the Authority, or constitute a representation or warranty by the Authority, with respect to compliance with any Blue Sky laws;
(i) As of the date thereof, except for statements regarding DTC, as to which the Authority makes no representation or warranty, the Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Official Statement contained does not contain any untrue statement of a material fact or omitted omit to state any a material fact required necessary to be stated therein make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) If between the date hereof and the date that is 25 days after the End of the Underwriting Period (as such term is hereinafter defined) for the 2013A Bonds, an event occurs that would cause the information contained in the Official Statement, as then supplemented or amended, to contain an untrue statement of a material fact or to omit to state a material fact necessary to make such information therein, in the light of the circumstances under which they were made, not misleading, the Authority will notify the Representative, and, if in the opinion of the Authority, the Representative or their respective counsel, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the Authority will forthwith prepare and furnish to the Underwriters (at the expense of the Authority) a reasonable number of copies of an amendment of or supplement to the Official Statement (in form and substance satisfactory to counsel for the Authority and counsel for the Underwriters) that will amend or supplement the Official Statement so that it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. For the purposes of this subsection, nor, to between the best knowledge date hereof and the date that is 25 days after the End of the Underwriting Period for the 2013A Bonds, the Authority is there any basis for any action, suit, proceeding, inquiry or investigation of will furnish such information with respect to itself as the nature described in clauses (i) through (iv) of this clause (o)Representative may from time to time reasonably request;
(pk) for purposes If the information contained in the Official Statement is amended or supplemented pursuant to paragraph (j) hereof, at the time of the Ruleeach supplement or amendment thereto, the Authority has heretofore deemed final will represent and warrant that the Preliminary portions of the Official Statement prior to its use so supplemented or amended (including any financial and distribution by the Underwritersstatistical data contained therein), except for statements regarding DTC, as to which the Authority does not make any representation or warranty, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information specifically permitted to be omitted by paragraph (b)(1) therein, in the light of the Rulecircumstances under which they are made, not misleading; and
(ql) except as otherwise disclosed in As used herein and for the Preliminary Official Statement purposes of the foregoing (and for purposes of Section 3 below), the term "End of the Underwriting Period" for the 2013A Bonds shall mean the Closing Date unless the Authority and the Official Statement, the Authority has not previously failed to comply with any continuing disclosure obligation undertaken pursuant City shall have been notified in writing to the Rule. All representations, warranties and agreements of contrary by the Authority shall remain operative and in full force and effect, regardless of any investigations made by Representative on or on prior to the Underwriters’ behalf, and shall survive the delivery of the BondsClosing Date.
Appears in 1 contract
Samples: Bond Purchase Agreement
