Representations, Warranties and Covenants of the City. The City represents, warrants and covenants to the Underwriter and the Authority that: (a) The City is and will be at the date of Closing a municipal corporation duly organized and existing pursuant to and under the Constitution and laws of the State and has all necessary power and authority to enter into and perform its duties under the Continuing Disclosure Agreement relating to the Bonds (the “Continuing Disclosure Agreement”), the Property Lease, the Lease Agreement, the Trust Agreement and this Purchase Agreement (collectively, the “City Documents” and, together with the Authority Documents, the “Legal Documents”) and has by official action duly authorized and approved the execution and delivery of, and the performance by the City of the obligations on its part contained in the City Documents. (b) By official action of the City prior to or concurrently with the acceptance hereof, the City has duly approved the distribution of the Preliminary Official Statement and the distribution of the Official Statement (including in electronic form), and has duly authorized and approved the execution and delivery of, and the performance by the City of the obligations on its part contained, in the City Documents. When executed and delivered, each City Document will constitute the legally valid and binding obligation of the City enforceable in accordance with its 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. (c) The Preliminary Official Statement heretofore delivered to the Underwriter is hereby deemed final by the City as of its date and as of the date hereof, except for the omission of such information as is permitted to be omitted in accordance with paragraph (b)(i) of Rule 15c2-12. The Preliminary Official Statement, at the date thereof, did not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein (other than the information relating to [the Bond Insurer or] DTC and its book-entry system, as to which no view is expressed), in the light of the circumstances under which they were made, not misleading. As of the date hereof and on the Closing, the final Official Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein (other than the information relating to [the Bond Insurer or] DTC and its book-entry system, as to which no view is expressed), in the light of the circumstances under which they were made, not misleading. (d) The execution and delivery by the City of the City Documents and the approval by the City of the Official Statement and compliance with the provisions on the City’s part contained in the City Documents, will not conflict with or constitute a breach of or default under any law, administrative regulation, judgment, decree, loan agreement, indenture, trust agreement, bond, note, resolution, agreement or other instrument to which the City is a party or is otherwise subject to, which conflict, breach or default has or may have a material adverse effect on the ability of the City to carry out its obligations under the City Documents, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any material lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties or assets of City under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, trust agreement, bond, note, resolution, agreement or other instrument, except as provided by the City Documents. (e) The City will advise the 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 Underwriter, which consent will not be unreasonably withheld. The City will advise the Underwriter promptly of the institution of any proceedings known to it by any governmental authority prohibiting or otherwise affecting the use of the Official Statement in connection with the offering, sale or distribution of the Bonds. (f) The City is not in breach of or default under any applicable law or administrative regulation of the State or the United States of America or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City 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, in each case which breach or default has or may have a material adverse effect on the ability of the City to perform its obligations under the City Documents. (g) The financial statements relating to the receipts, expenditures and cash balances of the City as of June 30, 2017 as set forth in the Official Statement fairly represent the receipts, expenditures and cash balances of the General Fund. Except as disclosed in the Preliminary Official Statement, the Official Statement or otherwise disclosed in writing to the Underwriter, there has not been any materially adverse change in the financial condition of the General Fund or in its operations since June 30, 2017 and, except as disclosed in the Preliminary Official Statement, the Official Statement or otherwise disclosed in writing to the Underwriter, there has been no occurrence, circumstance or combination thereof which is reasonably expected to result in any such materially adverse change. (h) As of the time of acceptance hereof and as of the date of Closing, 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 knowledge of the officers of the City, threatened (i) in any way questioning the corporate existence of the City or the titles of the officers of the City to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the execution or delivery of any of the Bonds, or in any way contesting or affecting the validity of the Bonds or the City Documents or the consummation of the transactions contemplated thereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the power of the City to enter into the City Documents; (iii) which may result in any material adverse change to the financial condition of the City or to its ability to pay the Lease Payments when due; 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, and there is no basis for any action, suit, proceeding, inquiry or investigation of the nature described in clause (i) through (iv) of this sentence. (i) To the extent required by law, the City will undertake, pursuant to the Continuing Disclosure Agreement, to provide annual reports and notices of certain events. A description of this undertaking is set forth in the Preliminary Official Statement and will also be set forth in the final Official Statement. Except as otherwise disclosed in the Preliminary Official Statement, the City has not failed to comply in all material respects with any previous undertakings with regard to the Rule 15c2-12 to provide annual reports or notices of enumerated events in the past five years. (j) Any certificate signed by any officer of the City authorized to execute such certificate in connection with the issuance, sale and delivery of the Bonds and delivered to the Underwriter shall be deemed a representation and warranty of the City to the Underwriter and the Authority as to the statements made therein but not of the person signing such certificate. (k) As of the date hereof, the City does not have any material obligations secured by payments from the General Fund of the City, except as disclosed in the Official Statement. (l) The exceptions set forth in the title insurance policy for the Leased Property insuring, subject only to Permitted Encumbrances, the fee interest of the City in the Leased Property, the Authority’s leasehold estate in the Leased Property under the Property Lease, and the City’s leasehold estate in the Leased Property under the Lease Agreement, do not materially impair the use of the Leased Property, the existing facilities and the sites thereof for the purposes for which they are or may reasonably be expected to be held.
Appears in 2 contracts
Representations, Warranties and Covenants of the City. The City representsundersigned on behalf of the City, but not individually, hereby represents and warrants to and covenants to with the Underwriter and the Authority that:
(a) The City is validly existing as a municipal corporation duly created, organized and will be existing under the laws of the State, and has full legal right, power and authority, and at the date of the Closing a municipal corporation duly organized and existing pursuant to and under the Constitution and laws of the State and has all necessary will have full legal right, power and authority to enter into and perform its duties under the Continuing Disclosure Agreement relating pursuant to the Bonds ordinance of the Mayor and City Council of the City adopted on May 1, 2018 (the “Continuing Disclosure AgreementOrdinance”), authorizing the Property Leasesale and execution and delivery of the Obligations, the Lease (i) to enter into, execute and deliver this Agreement, the Trust Agreement, the Purchase Agreement and an Undertaking which satisfies the requirements of Section (b)(5)(i) of the Rule (the “Undertaking”) and all documents required hereunder and thereunder to be executed and delivered by the City (this Agreement, the Trust Agreement, the Purchase Agreement (collectively, and the Undertaking are hereinafter referred to as the “City Documents” and”), together (ii) to carry out and consummate the transactions contemplated by the City Documents and the Official Statement, and (iii) to impose, xxxx, collect and pledge the Excise Tax Revenues as contemplated in the City Documents and the Official Statement, and the City has complied, and will at the Closing be in compliance in all respects, with the Authority Documentsterms of the City Documents as they pertain to such transactions;
(b) By all necessary official action of the City prior to or concurrently with the acceptance hereof, the “Legal Documents”) and City has by official action duly authorized all necessary action to be taken by it for (i) adoption of the Ordinance by the Mayor and approved City Council for the execution and delivery and sale of the Obligations, (ii) the approval, execution and delivery of, and the performance by the City of the obligations on its part contained in the City Documents.
(b) By official action of the City prior to or concurrently with the acceptance hereofin, the City has duly approved Documents and (iii) the distribution of the Preliminary Official Statement and the distribution of the Official Statement (including in electronic form), and has duly authorized and approved the execution and delivery of, and the performance consummation by the City of all other transactions contemplated by the obligations on its part containedOfficial Statement, in the City Documents. When , the Ordinance and any and all such other agreements and documents as may be required to be executed, delivered and/or received by the City in order to carry out, give effect to, and consummate the transactions contemplated herein and in the Official Statement;
(c) This Agreement has been duly executed and delivereddelivered by the City, each and the other of the City Document Documents (when such City Documents are executed and delivered by the other parties thereto) will constitute the legally legal, valid and binding obligation obligations of the City City, enforceable in accordance with its their respective terms, except as enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or and other similar laws or equitable and principles of equity relating to or affecting the enforcement of creditors’ rights; the Obligations, when executed and delivered and paid for in accordance with the Trust Agreement and this Agreement, shall constitute legal, valid and binding obligations entitled to the benefits of the Trust Agreement and enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws and principles of equity relating to or affecting the enforcement of creditors’ rights generally.
(c) The Preliminary Official Statement heretofore delivered to and, upon the Underwriter is hereby deemed final by the City as of its date execution and as delivery of the date hereofObligations as aforesaid, except the Purchase Agreement and the Trust Agreement shall provide, for the omission benefit of such information the holders from time to time of the Obligations, the legally valid and binding pledge and lien they purport to create as is permitted to be omitted in accordance with paragraph (b)(i) of Rule 15c2-12. The Preliminary Official Statement, at the date thereof, did not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein (other than the information relating to [the Bond Insurer or] DTC and its book-entry system, as to which no view is expressed), set forth in the light of Purchase Agreement and the circumstances under which they were made, not misleading. As of the date hereof and on the Closing, the final Official Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein (other than the information relating to [the Bond Insurer or] DTC and its book-entry system, as to which no view is expressed), in the light of the circumstances under which they were made, not misleading.Trust Agreement;
(d) The City is not in breach of or default in any material respect under any applicable constitutional provision, law or administrative regulation of the State or the United States or any applicable judgment or decree or any loan agreement, trust agreement, bond, note, Ordinance, agreement or other instrument to which the City is a party or to which the City is or any of its property or assets are otherwise subject, and no event has occurred and is continuing which constitutes or with the passage of time or the giving of notice, or both, would constitute a default or event of default by the City under any of the foregoing; and the execution and delivery by the City of the City Documents and the approval by the City adoption of the Official Statement Ordinance and compliance with the provisions on the City’s part contained in the City Documentstherein, will not conflict with or constitute a material breach of or default under any lawconstitutional provision, administrative regulation, judgment, decree, loan agreement, indenture, trust agreement, bond, note, resolution, agreement or other instrument to which the City is a party or to which the City is or to which any of its property or assets are otherwise subject to, which conflict, breach or default has or may have a material adverse effect on the ability of the City to carry out its obligations under the City Documents, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any material lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties property or assets of the City securing the Obligations or under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, trust agreement, bond, note, resolution, agreement regulation or other instrument, except as provided by the City Documents.;
(e) The City will advise the Underwriter promptly All authorizations, approvals, licenses, permits, consents and orders of any proposal to amend governmental authority, legislative body, board, agency or supplement the Official Statement and will not effect or consent to any such amendment or supplement without the consent commission having jurisdiction of the Underwritermatter which are required for the due authorization of, which consent will not be unreasonably withheld. The would constitute a condition precedent to, or the absence of which would materially adversely affect the due performance by the City will advise of its obligations under the Underwriter promptly of the institution of any proceedings known to it by any governmental authority prohibiting or otherwise affecting the use of the Official Statement in connection with the offering, sale or distribution of the Bonds.City Documents have been duly obtained;
(f) The City is not Obligations conform to the description thereof contained in breach of or default under any applicable law or administrative regulation of the State or the United States of America or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City 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, in each case which breach or default has or may have a material adverse effect on the ability of the City to perform its obligations Official Statement under the City Documents.caption “THE OBLIGATIONS;” and the Undertaking conforms to the description thereof contained in the Official Statement under the caption “CONTINUING DISCLOSURE;”
(g) The financial statements relating to the receipts, expenditures and cash balances of the City as of June 30, 2017 as set forth in the Official Statement fairly represent the receipts, expenditures and cash balances of the General Fund. Except as disclosed in the Preliminary Official Statement, Statement and the Official Statement or otherwise disclosed in writing to the Underwriter, there has not been any materially adverse change in the financial condition of the General Fund or in its operations since June 30, 2017 and, except as disclosed in the Preliminary Official Statement, the Official Statement or otherwise disclosed in writing to the Underwriterthere is no litigation, there has been no occurrence, circumstance or combination thereof which is reasonably expected to result in any such materially adverse change.
(h) As of the time of acceptance hereof and as of the date of Closing, 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 knowledge of the officers of City after due inquiry, threatened against the City, threatened (i) in any way questioning affecting the corporate existence of the City or the titles of the its officers of the City to their respective offices; (ii) affecting, contesting or affecting or seeking to prohibit, restrain or enjoin the sale, execution or delivery of any the Obligations or the levying or collection of Excise Tax Revenues securing the payment of the Bonds, Obligations pursuant to the Trust Agreement or in any way contesting or affecting the validity or enforceability of the Bonds or the City Documents or the consummation of the transactions contemplated therebyDocuments, or contesting the exclusion from gross income of the interest on the Bonds from gross income Obligations for federal income tax purposes or State income tax purposes, or contesting the power of the City to enter into the City Documents; (iii) which may result in any material adverse change to the financial condition of the City or to its ability to pay the Lease Payments when due; or (iv) contesting way the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto thereto, or asserting that contesting the powers of the City or any authority for the execution and delivery of the Obligations, the adoption of the Ordinance or the execution and delivery of the City Documents, nor, to the best knowledge of the City, is there any basis therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the validity or enforceability of the Obligations or the City Documents;
(h) As of the date thereof, the Preliminary Official Statement or the Official Statement contained 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, and there is no basis for any action, suit, proceeding, inquiry or investigation of the nature described in clause (i) through (iv) of this sentence.;
(i) To The City has not granted a lien on, made a pledge of or agreed to apply the extent Excise Tax Revenues and other moneys payable pursuant to the Purchase Agreement, except as provided or permitted in the Purchase Agreement or as described in the Official Statement;
(j) At the time of the City’s acceptance hereof and (unless the Official Statement is amended or supplemented pursuant to paragraph (d) of Section 4 of this Agreement) at all times subsequent thereto during the period up to and including the date of Closing, the Official Statement as it relates to the City does not and will not contain any untrue statement of a material fact or omit to state any material fact required by lawto be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(k) If the Official Statement is supplemented or amended pursuant to paragraph (d) of Section 4 of this Agreement, 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 during the period up to and including the date of Closing, the Official Statement as so supplemented or amended will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which made, not misleading;
(l) The City will apply, or cause to be applied, the proceeds from the sale of the Obligations as provided in and subject to all of the terms and provisions of the Trust Agreement and will not take or omit to take any action which action or omission will adversely affect the exclusion from gross income for federal income tax purposes or State income tax purposes of the interest on the Obligations;
(m) The City will furnish such information and execute such instruments and take such action in cooperation with the Underwriter as the Underwriter may reasonably request
(A) to (y) qualify the Obligations for offer and sale under the “blue sky” or other securities laws and regulations of such states and other jurisdictions in the United States as the Underwriter may designate, and (z) determine the eligibility of the Obligations for investment under the laws of such states and other jurisdictions, and (B) to continue such qualifications in effect so long as required for the distribution of the Obligations (provided, however, that the City will undertakenot be required to qualify as a foreign corporation or to file any general or special consents to service of process under the laws of any jurisdiction) and will advise the Underwriter immediately of receipt by the City of any notification with respect to the suspension of the qualification of the Obligations for sale in any jurisdiction or the initiation or threat of any proceeding for that purpose;
(n) The City has submitted to the Arizona Department of Revenue, the Arizona State Treasurer’s Office or the Arizona Department of Administration, as applicable, the information required with respect to previous issuances of bonds, securities and lease-purchase agreements of the City pursuant to Arizona Revised Statues, and will file the Continuing Disclosure Agreementinformation relating to the Obligations required to be submitted to the Arizona Department of Administration pursuant thereto within 60 days of the date of Closing;
(o) The City has executed and delivered or shall execute and deliver prior to the Closing, and in time for the Closing to provide annual reports occur at its specific time, the documents required to cause the Obligations to be eligible for deposit with DTC (as defined herein) or other securities depositories;
(p) The financial statements of and notices other financial information regarding the City in the Official Statement fairly present the financial position and results of certain events. A description the City as of this undertaking is the dates and for the periods therein set forth in accordance with generally accepted accounting principles as applicable to governmental units and have been prepared in accordance with generally accepted accounting principles consistently applied throughout the Preliminary Official Statement and will also be set forth in the final Official Statement. Except periods concerned (except as otherwise disclosed in the Preliminary Official Statement or financial statements); since June 30, 2017, the City has not incurred any material liabilities, direct or contingent, nor has there been any material change in the financial position, results of operations or condition, financial or otherwise, of the City that are not disclosed in the Official Statement, whether or not arising from transactions in the ordinary course of business and prior to the Closing, there will be no adverse change of a material nature in such financial position, results of operations or condition, financial or otherwise, of the City, and the City is not a party to any litigation or other proceeding pending or, to the best knowledge of the City after due inquiry, threatened which, if decided adversely to the City, would have a materially adverse effect on the financial condition of the City, or on the imposition, levy, collection or pledge of Excise Tax Revenues for the payment of the Obligations;
(q) Except as otherwise indicated in the Official Statement, the City has not failed to comply been in material compliance with the terms of all material respects with any previous continuing disclosure undertakings with regard previously executed by the City pursuant to the Rule 15c2-12 to provide annual reports or notices of enumerated events in for the past previous five years.;
(jr) Prior to the Closing, the City will not offer or issue any bonds, notes or other obligations for borrowed money or incur any material liabilities, direct or contingent, payable from or secured by any of the revenues or assets which secure the Obligations without prior approval of the Underwriter; and
(s) Any certificate signed by any officer official of the City authorized to execute such certificate do so in connection with the issuance, sale and delivery of the Bonds and delivered to the Underwriter transactions contemplated by this Agreement shall be deemed a representation and warranty of by the City to the Underwriter and the Authority as to the statements made therein but not of the person signing such certificatetherein.
(k) As of the date hereof, the City does not have any material obligations secured by payments from the General Fund of the City, except as disclosed in the Official Statement.
(l) The exceptions set forth in the title insurance policy for the Leased Property insuring, subject only to Permitted Encumbrances, the fee interest of the City in the Leased Property, the Authority’s leasehold estate in the Leased Property under the Property Lease, and the City’s leasehold estate in the Leased Property under the Lease Agreement, do not materially impair the use of the Leased Property, the existing facilities and the sites thereof for the purposes for which they are or may reasonably be expected to be held.
Appears in 1 contract
Samples: Obligation Purchase Agreement
Representations, Warranties and Covenants of the City. The City represents, warrants and covenants to the Underwriter and the Authority that:as follows.
(a) The City is and will be at a general law city of the date State of Closing a municipal corporation California (the “State”), duly organized and validly existing pursuant to and under the Constitution and laws of the State and has all necessary its charter.
(b) The City had full legal right, power and authority to enter into adopt the Resolution, and perform its duties under the City has, and at the Closing Date will have, full legal right, power and authority (i) to execute and deliver the Trust Agreement, the Continuing Disclosure Agreement Certificate relating to the Bonds (the “Continuing Disclosure AgreementCertificate”), the Property Lease, the Lease Agreement, the Trust Agreement ) and this Purchase Agreement (collectively, the “Legal
(c) The City Documents” andCouncil has duly and validly adopted the Resolution at a meeting of the City Council duly noticed and at which a quorum was present, together with and the Authority DocumentsResolution has not been modified or amended and is in full force and effect, the “Legal Documents”) and has by official action duly authorized and approved the execution and delivery ofof the Bonds and the other Legal Documents, and the performance by the City of its obligations contained therein, and the obligations on its part contained in taking of any and all action as may be necessary to carry out, give effect to and consummate the City Documentstransactions contemplated by each of said documents.
(bd) By official action of The Bonds and the City prior Legal Documents have been, on or before the Closing Date will be, duly executed and delivered by the City, and, on the Closing Date, the Bonds, when authenticated and delivered to or concurrently the Underwriter in accordance with the acceptance hereof, the City has duly approved the distribution of the Preliminary Official Statement and the distribution of the Official Statement (including in electronic form), and has duly authorized and approved the execution and delivery ofTrust Agreement, and the performance by the City of the obligations on its part contained, in the City Documents. When executed and delivered, each City Document Legal Documents will constitute the legally valid and binding obligation of obligations, enforceable against the City enforceable in accordance with its their respective terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium moratorium, or similar laws or equitable principles relating to or affecting limiting creditors’ rights generally.
(c) The Preliminary Official Statement heretofore delivered to the Underwriter is hereby deemed final by the City as of its date and as of the date hereof, except for the omission of such information as is permitted to be omitted in accordance with paragraph (b)(i) of Rule 15c2-12. The Preliminary Official Statement, at the date thereof, did not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein (other than the information relating to [the Bond Insurer or] DTC and its book-entry system, as to which no view is expressed), in the light of the circumstances under which they were made, not misleading. As of the date hereof and on the Closing, the final Official Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein (other than the information relating to [the Bond Insurer or] DTC and its book-entry system, as to which no view is expressed), in the light of the circumstances under which they were made, not misleading.
(d) The execution and delivery by the City of the City Documents and the approval by the City of the Official Statement and compliance with the provisions on the City’s part contained in the City Documents, will not conflict with or constitute a breach of or default under any law, administrative regulation, judgment, decree, loan agreement, indenture, trust agreement, bond, note, resolution, agreement or other instrument to which the City is a party or is otherwise subject to, which conflict, breach or default has or may have a material adverse effect on the ability of the City to carry out its obligations under the City Documents, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any material lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties or assets of City under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, trust agreement, bond, note, resolution, agreement or other instrument, except as provided by the City Documents.
(e) The City is, and at the Closing Date will advise the 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 Underwriterbe, which consent will not be unreasonably withheld. The City will advise the Underwriter promptly of the institution of any proceedings known to it by any governmental authority prohibiting or otherwise affecting the use of the Official Statement in connection compliance, in all respects, with the offering, sale or distribution of the BondsLegal Documents.
(f) The City is not in breach of or default under any applicable law or administrative regulation of the State or the United States of America or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City 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, in each case which breach or default has or may have a material adverse effect on the ability of the City to perform its obligations under the City Legal Documents.
(g) No consent, approval, authorization or other action by any governmental or regulatory authority having jurisdiction over the City that has not been obtained is or will be required for the issuance and delivery of the Bonds or the consummation by the City of the other transactions contemplated by the Trust Agreement.
(h) The adoption of the Resolution and the execution and delivery by the City of the Legal Documents and the approval by the City of the Official Statement and compliance with the provisions on the City’s part contained in the Legal Documents, will not conflict with, or result in a violation or breach of, or constitute a default under, any law, administrative regulation, judgment, decree, loan agreement, indenture, trust agreement, bond, note, resolution, agreement or other instrument to which the City is a party or is otherwise subject to, which conflict, breach or default has or may have a material adverse effect on the ability of the City to carry out its obligations under the Legal Documents, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any material lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties or assets of City under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, trust agreement, bond, note, resolution, agreement or other instrument, except as provided by the Legal Documents.
(i) Prior to the date hereof, the City has provided to the Underwriter for its review the Preliminary Official Statement, that the City has deemed final for purposes of Rule 15c2-12, has approved the distribution of the Preliminary Official Statement and the Official Statement, and has duly authorized the execution and delivery of the Official Statement (including in electronic form). The Preliminary Official Statement, at the date thereof, and as of the date hereof, did not and does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein (other than the information relating to DTC and its book-entry system, as to which no view is expressed), in light of the circumstances under which they were made, not misleading. As of the date hereof and on the Closing, the Official Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein (other than the information relating to DTC and its book-entry system, as to which no view is expressed), in light of the circumstances under which they were made, not misleading.
(j) By official action of the City prior to or concurrently with the acceptance hereof, the City has duly approved the distribution of the Preliminary Official Statement and the distribution of the Official Statement (including in electronic form), and has duly authorized and approved the execution and delivery of, and the performance by the City of the obligations on its part contained, in the Legal Documents.
(k) The City will advise the 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 Underwriter, which consent will not be unreasonably withheld. The City will advise the Underwriter promptly of the institution of any proceedings known to it by any governmental authority prohibiting or otherwise affecting the use of the Official Statement in connection with the offering, sale or distribution of the Bonds.
(l) The financial statements relating to the receipts, expenditures and cash balances of the City as of June 30, 2017 2019 as set forth in the Preliminary Official Statement and in the Official Statement fairly represent the receipts, expenditures financial position and cash balances results of operations of the General FundCity as of the dates and for the periods therein set forth in accordance with generally accepted accounting principles. Except as disclosed in the Preliminary Official Statement, the Official Statement or otherwise disclosed in writing to the Underwriter, there has not been any materially adverse change in the financial condition position and results of operations of the General Fund City or in its operations since June 30, 2017 2019 and, except as disclosed in the Preliminary Official Statement, Statement or the Official Statement or otherwise disclosed in writing to the UnderwriterStatement, there has been no occurrence, circumstance or combination thereof which is reasonably expected to result in any such materially adverse change.
(hm) As of the time of acceptance hereof and as of the date of Closing, 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 knowledge of the officers of the City, threatened (i) in any way questioning the corporate existence of the City or the titles of the officers of the City to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the execution or delivery of any of the Bonds, or in any way contesting or affecting the validity of the Bonds or the City Legal Documents or the consummation of the transactions contemplated thereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes thereby or contesting the power of the City to enter into the City Legal Documents; (iii) which may result in any material adverse change to the financial condition of the City or to its ability to pay make payment of principal or redemption price of and interest on the Lease Payments Bonds when due; 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, and there is no basis for any action, suit, proceeding, inquiry or investigation of the nature described in clause (i) through (iv) of this sentence.
(in) To the extent required by law, the City will undertake, pursuant to the Continuing Disclosure AgreementCertificate, to provide annual reports and notices of certain events. A description of this undertaking is set forth in the Preliminary Official Statement and will also be set forth in the final Official Statement. Except as otherwise disclosed in the Preliminary Official Statement, the City has not failed to comply in all material respects with any previous undertakings with regard to the Rule 15c2-12 to provide annual reports or notices of enumerated events in the past five yearsyears and, the City has been in material compliance during the past five years with its continuing disclosure obligations in accordance with Rule 15c2-12.
(jo) Any certificate signed by any officer of the City authorized to execute such certificate in connection with the issuance, sale and delivery of the Bonds and delivered to the Underwriter shall be deemed a representation and warranty of the City to the Underwriter and the Authority as to the statements made therein but not of the person signing such certificate.
(kp) The City will promptly apply the proceeds of the Bonds to refund the Unfunded Liability as of the date of issuance of the Bonds and to pay costs associated with the issuance and delivery of the Bonds.
(q) During the period from the date hereof until the Closing Date, the City agrees to furnish the Underwriter with copies of any documents it files with any regulatory authority which are reasonably requested by the Underwriter.
(r) The City is not in material default, nor has the City been in material default at any time, as to the payment of principal or interest with respect to a material obligation issued by the City or with respect to a material obligation guaranteed by the City as guarantor.
(s) As of the date hereof, the City does not have any revenue bonds, capital lease obligations, installment payment obligations or other material financial obligation, nor other material obligations secured by payments from the General Fund general fund of the City, except as disclosed in the Preliminary Official Statement and the Official Statement.
(lt) The exceptions set forth default judgment dated , 2020 entered in the title insurance policy for the Leased Property insuring, subject only to Permitted Encumbrances, the fee interest favor of the City in the Leased Property, the Authority’s leasehold estate in the Leased Property under the Property Lease, and the City’s leasehold estate in the Leased Property under the Lease Agreement, do not materially impair the use connection with City of the Leased Property, the existing facilities and the sites thereof for the purposes for which they are or may reasonably be expected to be held.Coachella v.
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations, Warranties and Covenants of the City. The City hereby represents, warrants and covenants to agrees with the Underwriter and the Authority that:
(a) The City is a general law city and will be at the date of Closing a municipal corporation duly corporation, organized and existing pursuant to and under the Constitution and the laws of the State and has all necessary power and authority to adopt its resolution adopted on , 2017 (the “City Resolution”), to enter into and perform its duties under the Continuing Disclosure Agreement relating to the Bonds (the “Continuing Disclosure Agreement”), the Property Ground Lease, the Lease Agreement, the Trust Agreement Indenture, the Continuing Disclosure Certificate, the Escrow Agreement, the Lease Termination Agreements and this Purchase Agreement Contract (collectively, the “City Documents” Agreements”) and, together with when executed and delivered by the Authority Documentsrespective parties thereto, the “Legal Documents”) City Agreements will constitute legal, valid and has by official action duly authorized and approved the execution and delivery of, and the performance by binding obligations of the City of the obligations on its part contained enforceable in the City Documentsaccordance with their respective terms.
(b) By official action The city council (the “City Council”) of the City prior has taken official action by adopting the City Resolution by a majority of the members of the City Council at a meeting duly called, noticed and conducted, at which a quorum was present and acting throughout, authorizing the execution, delivery and due performance of the City Agreements and the Official Statement and the taking of any and all such action as may be required on the part of the City to or concurrently with carry out, give effect to and consummate the acceptance hereoftransactions contemplated hereby.
(c) By all necessary official action, the City has duly approved adopted the distribution City Resolution, has duly authorized the preparation and delivery of the Preliminary Official Statement and the distribution preparation, execution and delivery of the Official Statement (including in electronic form)Statement, and has duly authorized and approved the execution and delivery of, and the performance of its obligations under, the City Agreements, and the consummation by it of all other transactions contemplated by the City of the obligations on its part containedResolution, in the City DocumentsAgreements, the Preliminary Official Statement and the Official Statement. When executed and delivereddelivered by their respective parties, the City Agreements (assuming due authorization, execution and delivery by and enforceability against the other parties thereto) will be in full force and effect and each City Document will constitute the legally legal, valid and binding obligation agreements or obligations of the City City, enforceable in accordance with its 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 creditors’ 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.
(cd) The Preliminary Official Statement heretofore delivered to At the Underwriter is hereby deemed final by the City as of its date and as time of the date hereof, except for the omission of such information as is permitted to be omitted in accordance with paragraph (b)(i) of Rule 15c2-12. The Preliminary Official Statement, at the date thereof, did not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein (other than the information relating to [the Bond Insurer or] DTC and its book-entry system, as to which no view is expressed), in the light of the circumstances under which they were made, not misleading. As of the date City’s acceptance hereof and on at all times subsequent thereto up to and including the time of the Closing, the final information and statements in the Official Statement did (other than any information concerning the Authority, the Depository Trust Company and the book-entry system for the Bonds or provided by the Underwriter) do not and will not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein (other than the information relating to [the Bond Insurer or] DTC and its book-entry system, as to which no view is expressed)therein, in the light of the circumstances under which they were made, not misleading.
(de) The execution and delivery As of the date hereof, there is no action, suit, proceeding or investigation before or by any court, public board or body pending against the City or, to the best knowledge of the City, threatened, wherein an unfavorable decision, ruling or finding would: (i) affect the creation, organization, existence or powers of the City, or the titles of its members or officers; (ii) in any way question or affect the validity or enforceability of City Agreements or the Bonds, or (iii) in any way question or affect the Purchase Contract or the transactions contemplated by the City of the City Documents and the approval by the City of Purchase Contract, the Official Statement and compliance with the provisions on the City’s part contained in the City DocumentsStatement, will not conflict with or constitute a breach of or default under any law, administrative regulation, judgment, decree, loan agreement, indenture, trust agreement, bond, note, resolution, other agreement or other instrument to which the City is a party or is otherwise subject to, which conflict, breach or default has or may have a material adverse effect on the ability of the City relating to carry out its obligations under the City Documents, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any material lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties or assets of City under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, trust agreement, bond, note, resolution, agreement or other instrument, except as provided by the City Documents.
(e) The City will advise the 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 Underwriter, which consent will not be unreasonably withheld. The City will advise the Underwriter promptly of the institution of any proceedings known to it by any governmental authority prohibiting or otherwise affecting the use of the Official Statement in connection with the offering, sale or distribution of the Bonds.
(f) The There is no consent, approval, authorization or other order of, or filing or registration with, or certification by, any regulatory authority having jurisdiction over the City is not in breach required for the execution and delivery of this Purchase Contract or default under any applicable law or administrative regulation the consummation by the City of the State other transactions contemplated by the Official Statement or the United States of America or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City 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, in each case which breach or default has or may have a material adverse effect on the ability of the City to perform its obligations under the City DocumentsAgreements.
(g) The financial statements relating to the receipts, expenditures and cash balances Any certificate signed by any official of the City authorized to do so will be deemed a representation and warranty by the City to the Underwriter as of June 30to the statements made therein.
(h) Except as previously disclosed to the Underwriter, 2017 as set forth the City is not in default, and at no time has the Official Statement fairly represent the receiptsCity defaulted in any material respect, expenditures and cash balances of the General Fund. on any bond, note or other obligation for borrowed money or any agreement under which any such obligation is or was outstanding.
(1) Except as disclosed in the Preliminary Official Statement, the Official Statement or otherwise disclosed in writing to the Underwriter, there has not been any materially adverse change in the financial condition of the General Fund or in its operations City since June 30, 2017 and2016, except as disclosed in the Preliminary Official Statement, the Official Statement or otherwise disclosed in writing to the Underwriter, and there has been no occurrence, occurrence or circumstance or combination thereof which that is reasonably expected to result in any such materially adverse change.
(h2) As of the time of acceptance hereof and as of If between the date of Closingthis Purchase Contract and the date which is 25 days following the End of the Underwriting Period, no actionany event will occur which might or would cause the Official Statement, suit, proceeding, inquiry as then supplemented or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending oramended, to the knowledge of the officers of the City, threatened (i) in any way questioning the corporate existence of the City or the titles of the officers of the City to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the execution or delivery of any of the Bonds, or in any way contesting or affecting the validity of the Bonds or the City Documents or the consummation of the transactions contemplated thereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the power of the City to enter into the City Documents; (iii) which may result in any material adverse change to the financial condition of the City or to its ability to pay the Lease Payments when due; 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 contain any 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 therein, in the light of the circumstances under which they were made, not misleading, and there is no basis for any action, suit, proceeding, inquiry or investigation of the nature described in clause (i) through (iv) of this sentence.
(i) To the extent required by law, the City will undertakeimmediately notify the Underwriter, pursuant and if, in the opinion of the Underwriter, such event requires the preparation and publication of a supplement or amendment to the Continuing Disclosure Agreement, to provide annual reports and notices of certain events. A description of this undertaking is set forth in the Preliminary Official Statement and will also be set forth in the final Official Statement. Except as otherwise disclosed in the Preliminary Official Statement, the City will at its expense supplement or amend the Official Statement in a form and in a manner approved by the Underwriter.
(3) After the Closing, the City 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 Underwriter reasonably objects in writing or which is disapproved by Underwriter’s Counsel. If any event relating to or affecting the City occurs as a result of which it is necessary, in the opinion of the Underwriter, 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 City will use its best efforts to assist the Underwriter in preparing (at the expense of the City for 90 days after the date of the Closing, and thereafter at the expense of the Underwriter) 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 a purchaser, not misleading. For the purposes of this subsection, the City will furnish such information with respect to itself as the Underwriter may from time to time reasonably request.
(j) Except as disclosed in the Official Statement or otherwise disclosed in writing to the Underwriter, the City has not previously failed to comply in all material respects with any previous undertakings with regard to the under Rule 15c2-12 to provide annual reports or notices of enumerated events in the past five years.
. The report of Lumesis, Inc. dated , 2017 (jthe “Continuing Disclosure Due Diligence Report”) Any certificate signed by any officer identifies all of the issues for which the Authority, the City authorized and other related entities were obligated to execute such certificate in connection with provide continuing disclosure under Rule 15c2-12 during the issuance, sale past five years and delivery all of the Bonds and delivered material event filings that were required with respect to such issues during the Underwriter shall be deemed a representation and warranty of the City to the Underwriter and the Authority as to the statements made therein but not of the person signing such certificatefive-year period.
(k) As of the date hereof, the The City does not have any material obligations secured by payments from need the General Fund consent of its auditor to include its comprehensive annual financial report for the Cityfiscal year ended June 30, except 2016 as disclosed in an appendix to the Official Statement.
(l) The exceptions set forth City will comply with the defeasance and redemption provisions of the 2007 Trust Agreement and the security deposit and prepayment provisions of the 2007 Lease Agreement in connection with the title insurance policy refinancing of the 2007 Certificates.
(m) The City covenants with the Underwriter that the City will cooperate with the Underwriter (at the cost and written directions of the Underwriter), in qualifying the Bonds for offer and sale under the Leased Property insuringsecurities or Blue Sky laws of such jurisdiction of the United States as the Underwriter may reasonably request; provided, subject only however, that the City shall not be required to Permitted Encumbrancesconsent to suit or to service of process, or to qualify to do business, in any jurisdiction. The City consents to the fee interest use by the Underwriter of the City Agreements, the Preliminary Official Statement and the Official Statement in the Leased Property, course of its compliance with the Authority’s leasehold estate in the Leased Property under the Property Lease, and the City’s leasehold estate in the Leased Property under the Lease Agreement, do not materially impair the use securities or Blue Sky laws of the Leased Property, various jurisdictions related to the existing facilities offering and sale of the sites thereof for the purposes for which they are or may reasonably be expected to be heldBonds.
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations, Warranties and Covenants of the City. The City hereby represents, warrants and covenants to agrees with the Underwriter and the Authority that:
(a) The City is and will be at the date of Closing a chartered municipal corporation duly corporation, organized and existing pursuant to and under the Constitution and laws of the State and has all necessary power and authority to adopt its resolution adopted on [⚫], 2021 (the "City Resolution"), to enter into and perform its duties under the Continuing Disclosure Agreement relating to the Bonds (the “Continuing Disclosure Agreement”), the Property Facility Lease, the Lease Sublease Agreement, the Trust Agreement Project Implementation Agreement, the City Continuing Disclosure Certificate and this Purchase Agreement Contract (collectivelythe "City Agreements") and, when executed and delivered by the respective parties thereto, the “City Documents” andAgreements will each constitute a legal, together valid and binding obligation of the City enforceable in accordance with the Authority Documents, the “Legal Documents”its respective terms.
(b) and The City Council has by taken official action by conducting a public hearing and adopting the City Resolution by a majority of the members of the City Council at a meeting duly authorized called, noticed and approved conducted, at which a quorum was present and acting throughout, authorizing the execution execution, delivery and delivery of, and the due performance by the City of the obligations City Agreements and the execution and delivery of the Official Statement and the taking of any and all such action as may be required on its the part contained in of the City Documentsto carry out, give effect to and consummate the transactions contemplated hereby.
(bc) By all necessary official action of the City prior to or concurrently with the acceptance hereofaction, the City has duly approved adopted the distribution City Resolution, has duly authorized the preparation and delivery of the Preliminary Official Statement and the distribution preparation, execution and delivery of the Official Statement (including in electronic form)Statement, and has duly authorized and approved the execution and delivery of, and the performance of its obligations under, the City Agreements, and the consummation by it of all other transactions contemplated by the City of the obligations on its part containedResolution, in the City DocumentsAgreements, the Preliminary Official Statement and the Official Statement. When executed and delivereddelivered by their respective parties, the City Agreements (assuming due authorization, execution and delivery by and enforceability against the other parties thereto) will be in full force and effect and each City Document will constitute the legally legal, valid and binding obligation agreements or obligations of the City City, enforceable in accordance with its 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 creditors’ 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.
(cd) The Preliminary At the time of the City’s acceptance hereof and at all times subsequent thereto up to and including the time of the Closing, the information and statements in the Official Statement heretofore delivered to (other than CUSIP numbers, any information concerning DTC and the Underwriter is hereby deemed final book-entry system for the Bonds and information provided by the City as of its date Underwriter, and as excluding information under the captions [the developer, the hotel project, the authority, the port district, the financing district, and related appendices—to be updated and finalized during preparation of the date hereof, except for the omission of such information as is permitted to be omitted in accordance with paragraph (b)(i) of Rule 15c2-12. The Preliminary Official Statement, at the date thereof, did not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein (other than the information relating to [the Bond Insurer or] DTC and its book-entry system], as to all of which no view is expressed), in the light of the circumstances under which they were made, not misleading. As of the date hereof and on the Closing, the final Official Statement did ) do not and will not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein (other than the information relating to [the Bond Insurer or] DTC and its book-entry system, as to which no view is expressed)therein, in the light of the circumstances under which they were made, not misleading.
(de) The execution As of the date hereof, other than as disclosed in the Official Statement, there is no action, suit, proceeding or investigation before or by any court, public board or body pending against the City or, to the best knowledge of the City, threatened, wherein an unfavorable decision, ruling or finding would: (i) materially and delivery adversely affect the creation, organization, existence or powers of the City, or the titles of its members or officers; (ii) in any way question or materially and adversely affect the validity or enforceability of City Agreements or the Bonds; or (iii) in any way question or materially and adversely affect the Purchase Contract or the transactions contemplated by the City of the City Documents and the approval by the City of Purchase Contract, the Official Statement and compliance with the provisions on the City’s part contained in the City DocumentsStatement, will not conflict with or constitute a breach of or default under any law, administrative regulation, judgment, decree, loan agreement, indenture, trust agreement, bond, note, resolution, other agreement or other instrument to which the City is a party or is otherwise subject to, which conflict, breach or default has or may have a material adverse effect on the ability of the City relating to carry out its obligations under the City Documents, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any material lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties or assets of City under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, trust agreement, bond, note, resolution, agreement or other instrument, except as provided by the City Documents.
(e) The City will advise the 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 Underwriter, which consent will not be unreasonably withheld. The City will advise the Underwriter promptly of the institution of any proceedings known to it by any governmental authority prohibiting or otherwise affecting the use of the Official Statement in connection with the offering, sale or distribution of the Bonds.
(f) The There is no consent, approval, authorization or other order of, or filing or registration with, or certification by, any regulatory authority having jurisdiction over the City is not in breach required for the execution and delivery of this Purchase Contract or default under any applicable law or administrative regulation the consummation by the City of the State other transactions contemplated by the Official Statement or the United States of America or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City 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, in each case which breach or default has or may have a material adverse effect on the ability of the City to perform its obligations under the City DocumentsAgreements.
(g) The financial statements relating to the receipts, expenditures and cash balances Any certificate signed by any official of the City authorized to execute such certificate will be deemed a representation and warranty by the City to the Underwriter as of June 30, 2017 as set forth in to the Official Statement fairly represent the receipts, expenditures and cash balances of the General Fund. statements made therein.
(h) Except as disclosed in the Preliminary Official Statement, the Official Statement or otherwise previously disclosed in writing to the Underwriter, the City is not in default, and at no time has the City defaulted in any material respect, on any bond, note or other obligation for borrowed money or any agreement under which any such obligation is or was outstanding.
(i) [Except as disclosed in the Official Statement, there has not been any materially adverse change in the financial condition of the General Fund or in its operations City since June 30[ ⚫], 2017 and2021, except as disclosed in the Preliminary Official Statement, the Official Statement or otherwise disclosed in writing to the Underwriter, and there has been no occurrence, occurrence or circumstance or combination thereof which that is reasonably expected to result in any such materially adverse change.]
(hj) As of the time of acceptance hereof and as of If between the date of Closingthis Purchase Contract and the date which is twenty-five (25) days following the End of the Underwriting Period, no actionany event of which the City is aware occurs which might or would cause the Official Statement, suit, proceeding, inquiry as then supplemented or investigation, at law or in equity, before or by any court, government agency, public board or body, is pending oramended, to the knowledge of the officers of the City, threatened (i) in any way questioning the corporate existence of the City or the titles of the officers of the City to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the execution or delivery of any of the Bonds, or in any way contesting or affecting the validity of the Bonds or the City Documents or the consummation of the transactions contemplated thereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the power of the City to enter into the City Documents; (iii) which may result in any material adverse change to the financial condition of the City or to its ability to pay the Lease Payments when due; 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 contain any 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 therein, in the light of the circumstances under which they were made, not misleading, the City will immediately notify the Underwriter and there is no basis for any actioneach other Party to this Purchase Contract in writing, suitand if, proceeding, inquiry or investigation in the opinion of the nature described City, after consultation with the Underwriter and each other Party to this Purchase Contract, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the City will, at the sole cost and expense of the City to the extent that the information set forth in clause (i) through (iv) such supplement or amendment relates solely to information provided by the City, prepare a supplement or amendment to the Official Statement so that the Official Statement, as so supplemented or amended, does 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. Notwithstanding the foregoing or any other provision of this sentencePurchase Contract to the contrary, to the extent such misstatement or omission is part of the information furnished by the Underwriter in the Official Statement, the cost of the preparation of such supplement or amendment will be at the sole cost and expense of the Underwriter.
(ik) To After the extent required by lawClosing, the City will undertake, pursuant not participate in the issuance of any amendment of or supplement to the Continuing Official Statement unless advised by Disclosure AgreementCounsel that such additions, to provide annual reports and notices of certain events. A description of this undertaking is deletions or revisions set forth in such amendment or supplement are required to comply with applicable securities laws and following consultation with the Preliminary Underwriter and each other Party to this Purchase Contract. The City agrees that it will notify the Underwriter and each other Party to this Purchase Contract if (i) between the date of the Official Statement and will also be the date of the Closing and (ii) between the date of the Closing and the date which is twenty-five (25) days following the End of the Underwriting Period, the City discovers any information, pre-existing or subsequent fact or becomes aware of the occurrence of any event, in any such case, which might cause the Official Statement (as the same may have been supplemented or amended) to contain any untrue statement of a material fact or to omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If, in the judgment of the City (after consultation with the Underwriter and each other Party to this Purchase Contract), the preparation and publication of a supplement or amendment to the Official Statement is, as a result of such fact or event described in the preceding sentence (or any other event which becomes known to the City during such period), necessary so that the Official Statement does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the City will, at the sole cost and expense of the City to the extent that the information set forth in such supplement or amendment relates solely to information provided by the final City, prepare a supplement or amendment to the Official Statement so that the Official Statement, as so supplemented or amended, does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing or any other provision of this Purchase Contract to the contrary, to the extent such misstatement or omission is part of the information furnished by the Underwriter in the Official Statement, the cost of the preparation of such supplement or amendment will be at the sole cost and expense of the Underwriter. The City will furnish a sufficient number of copies of such supplement or amendment to the Underwriter as is reasonably required by the Underwriter. The City and the Underwriter agree that they will cooperate in the preparation and distribution of any such amendment or supplement. In connection with any amendments or supplements to the Official Statement that are made pursuant to Section 6(k) hereof, the Underwriter may request, and the City agrees to provide, such customary additional certificates and customary opinions of counsel as the Underwriter shall reasonably deem necessary to evidence the accuracy and completeness of the Official Statement, as so amended or supplemented.
(l) Except as otherwise disclosed in the Preliminary Official Statement, the City has not previously failed to comply in all material respects with any previous undertakings with regard to the under Rule 15c2-12 to provide annual reports or notices of enumerated events in the past five years.
(jm) Any certificate signed The City [does not need] [has secured] the consent of its auditor to include its audited financial statements for the fiscal year ended June 30, 2020 as an appendix to the Official Statement.]8 The City covenants with the Underwriter that the City will cooperate with the Underwriter (at the cost and written directions of the Underwriter), in qualifying the Bonds for offer and sale under the securities or Blue Sky laws of such jurisdiction of the United States as the Underwriter may reasonably request; provided, however, that the City shall not be required to consent to suit or to service of process, or to qualify to do business, in any jurisdiction. The City consents to the use by any officer the Underwriter of the City authorized to execute such certificate Agreements, the Preliminary Official Statement and the Official Statement in connection the course of its compliance with the issuance, sale and delivery securities or Blue Sky laws of the Bonds and delivered various jurisdictions related to the Underwriter shall be deemed a representation offering and warranty sale of the City to the Underwriter and the Authority as to the statements made therein but not of the person signing such certificateBonds.
(k) As of the date hereof, the City does not have any material obligations secured by payments from the General Fund of the City, except as disclosed in the Official Statement.
(l) The exceptions set forth in the title insurance policy for the Leased Property insuring, subject only to Permitted Encumbrances, the fee interest of the City in the Leased Property, the Authority’s leasehold estate in the Leased Property under the Property Lease, and the City’s leasehold estate in the Leased Property under the Lease Agreement, do not materially impair the use of the Leased Property, the existing facilities and the sites thereof for the purposes for which they are or may reasonably be expected to be held.
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations, Warranties and Covenants of the City. The City hereby represents, warrants and covenants to agrees with the Underwriter and the Authority that:
(a) The City Council (the “City Council”) of the City has taken official action by Resolution (the “City Resolution”) adopted by a majority of the members of the City Council at a meeting duly called, noticed and conducted, at which a quorum was present and acting throughout, authorizing the execution, delivery and due performance of the Facilities Lease, the Facilities Sublease, the Continuing Disclosure Undertaking and this Purchase Contract (collectively, the “City Agreements”) and the Official Statement and the taking of any and all such action as may be required on the part of the City and carry out, give effect to and consummate the transactions contemplated hereby.
(b) The City is and will be at the date of Closing a municipal corporation and general law city duly organized and existing pursuant to and under the Constitution and laws of the State and has all necessary power and authority to adopt the City Resolution and to enter into and perform its duties under the Continuing Disclosure Agreement relating to the Bonds (the “Continuing Disclosure Agreement”), the Property Lease, the Lease Agreement, the Trust Agreement and this Purchase Agreement (collectively, the “City Documents” and, together with the Authority Documents, the “Legal Documents”) and has by official action duly authorized and approved the execution and delivery of, and the performance by the City of the obligations on its part contained in the City DocumentsAgreements.
(bc) By all necessary official action of the City prior to or concurrently with the acceptance hereofaction, the City has duly approved adopted the distribution City Resolution, has duly authorized the preparation and delivery of the Preliminary Official Statement and the distribution preparation, execution and delivery of the Official Statement (including in electronic form)Statement, and has duly authorized and approved the execution and delivery of, and the performance of its obligations under, the City Agreements, and the consummation by it of all other transactions contemplated by the City of the obligations on its part containedResolution, in the City DocumentsAgreements, the Preliminary Official Statement and the Official Statement. When executed and delivered, the City Agreements (assuming due authorization, execution and delivery by and enforceability against the other parties thereto, as applicable) will be in full force and effect and each City Document will constitute the legally legal, valid and binding obligation agreements or obligations of the City City, enforceable in accordance with its 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.
(cd) The Preliminary Official Statement heretofore delivered to At the Underwriter is hereby deemed final by the City as of its date and as time of the date hereof, except for the omission of such information as is permitted to be omitted in accordance with paragraph (b)(i) of Rule 15c2-12. The Preliminary Official Statement, at the date thereof, did not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein (other than the information relating to [the Bond Insurer or] DTC and its book-entry system, as to which no view is expressed), in the light of the circumstances under which they were made, not misleading. As of the date City’s acceptance hereof and on at all times subsequent thereto up to and including the time of the Closing, the final information and statements in the Official Statement did (other than under the captions “THE AUTHORITY” and “BOND INSURANCE”) do not and will not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading (other than the except that no representation is made with respect to information relating to [the Bond Insurer or] DTC and its (as such term is defined herein), DTC’s book-entry system, the Insurer, the Policy or the Reserve Policy).
(e) As of the date hereof, except as described in the Preliminary Official Statement, there is no action, suit, proceeding or investigation before or by any court, public board or body pending against, and notice of which has been served on and received by, the City or, to the best knowledge of the City, threatened, wherein an unfavorable decision, ruling or finding would: (i) affect the creation, organization, existence or powers of the City, or the titles of its members or officers; (ii) in any way question or affect the validity or enforceability of City Agreements or the Bonds; or (iii) in any way question or affect the Purchase Contract or the transactions contemplated by the Purchase Contract, the Official Statement, or any other agreement or instrument to which the City is a party relating to the Bonds.
(f) There is no consent, approval, authorization or other order of, or filing or registration with, or certification by, any regulatory authority having jurisdiction over the City required for the execution and delivery of this Purchase Contract and the City Agreements or the consummation by the City of the other transactions contemplated by the Official Statement or the City Agreements.
(g) Any certificate signed by any official of the City authorized to do so shall be deemed a representation and warranty by the City to the Underwriter as to the statements made therein.
(h) The City is not in default, and at no time has the City defaulted in any material respect, on any bond, note or other obligation for borrowed money or any agreement under which no view any such obligation is expressed)or was outstanding.
(i) If any event occurs of which the City has knowledge between the date of this Purchase Contract and the date of the Closing that might or would cause 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 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, the City shall notify the Underwriter and, if in the opinion of the Underwriter, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the City will cooperate with the Underwriter in causing the Official Statement to be amended or supplemented in a form and in a manner approved by the Underwriter. All expenses thereby incurred will be paid by the City, and the Underwriter will file, or cause to be filed, the amended or supplemented Official Statement with XXXX.
(dj) Except as set forth in the Official Statement under the caption “CONTINUING DISCLOSURE,” the City has complied in all material respects with its continuing disclosure undertakings in the past five years.
(k) The City 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. The City will 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.
(l) The City is not in any material respect in breach of or default under any applicable constitutional provision, law or administrative regulation of any state or of the United States, or any agency or instrumentality of either, or any applicable judgment or decree, or any loan agreement, indenture, trust agreement, bond, note, resolution, agreement or other instrument to which the City is a party which breach or default has or may have an adverse effect on the ability of the City to perform its obligations under the City Agreements, 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 under any such instrument; and the adoption, execution and delivery by the City of the City Documents and the approval by the City of the Official Statement Agreements, if applicable, and compliance with the provisions on the City’s part contained in the City Documentstherein, will not conflict in any material way with or constitute a material breach of or a material default under any constitutional provision, law, administrative regulation, judgment, decree, loan agreement, indenture, trust agreement, bond, note, resolution, agreement or other instrument to which the City is a party or is otherwise subject to, which conflict, breach or default has or may have a material adverse effect on the ability of the City to carry out its obligations under the City Documentsparty, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any material lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties property or assets of the City or under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, trust agreement, bond, note, resolution, agreement regulation or other instrument, except as may be provided by the City DocumentsAgreements.
(e) The City will advise the 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 Underwriter, which consent will not be unreasonably withheld. The City will advise the Underwriter promptly of the institution of any proceedings known to it by any governmental authority prohibiting or otherwise affecting the use of the Official Statement in connection with the offering, sale or distribution of the Bonds.
(f) The City is not in breach of or default under any applicable law or administrative regulation of the State or the United States of America or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City 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, in each case which breach or default has or may have a material adverse effect on the ability of the City to perform its obligations under the City Documents.
(gm) The financial statements relating to the receipts, expenditures and cash balances of the City as of June 30, 2017 2014 attached as set forth in an appendix to the Official Statement fairly represent the receipts, expenditures and cash balances of the General FundCity as of such date. Except as disclosed in the Preliminary Official Statement, the Official Statement or otherwise disclosed in writing to the Underwriter, there has not been any materially adverse change in the financial condition of the General Fund City or in its operations since June 30, 2017 and, except as disclosed in the Preliminary Official Statement, the Official Statement or otherwise disclosed in writing to the Underwriter, 2014 and there has been no occurrence, circumstance or combination thereof which is reasonably expected to result in any such materially adverse change.
(h) As of the time of acceptance hereof and as of the date of Closing, 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 knowledge of the officers of the City, threatened (i) in any way questioning the corporate existence of the City or the titles of the officers of the City to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the execution or delivery of any of the Bonds, or in any way contesting or affecting the validity of the Bonds or the City Documents or the consummation of the transactions contemplated thereby, or contesting the exclusion of the interest on the Bonds from gross income for federal income tax purposes or contesting the power of the City to enter into the City Documents; (iii) which may result in any material adverse change to the financial condition of the City or to its ability to pay the Lease Payments when due; 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, and there is no basis for any action, suit, proceeding, inquiry or investigation of the nature described in clause (i) through (iv) of this sentence.
(i) To the extent required by law, the City will undertake, pursuant to the Continuing Disclosure Agreement, to provide annual reports and notices of certain events. A description of this undertaking is set forth in the Preliminary Official Statement and will also be set forth in the final Official Statement. Except as otherwise disclosed in the Preliminary Official Statement, the City has not failed to comply in all material respects with any previous undertakings with regard to the Rule 15c2-12 to provide annual reports or notices of enumerated events in the past five years.
(j) Any certificate signed by any officer of the City authorized to execute such certificate in connection with the issuance, sale and delivery of the Bonds and delivered to the Underwriter shall be deemed a representation and warranty of the City to the Underwriter and the Authority as to the statements made therein but not of the person signing such certificate.
(k) As of the date hereof, the City does not have any material obligations secured by payments from the General Fund of the City, except as disclosed in the Official Statement.
(l) The exceptions set forth in the title insurance policy for the Leased Property insuring, subject only to Permitted Encumbrances, the fee interest of the City in the Leased Property, the Authority’s leasehold estate in the Leased Property under the Property Lease, and the City’s leasehold estate in the Leased Property under the Lease Agreement, do not materially impair the use of the Leased Property, the existing facilities and the sites thereof for the purposes for which they are or may reasonably be expected to be held.
Appears in 1 contract
Samples: Bond Purchase Contract
Representations, Warranties and Covenants of the City. The City representsrepresents and warrants as of the date of this Agreement and as of the Closing Date, warrants and covenants to the Underwriter and the Authority thator covenants, as follows:
(a) The City is and will be at the date of Closing a municipal corporation political subdivision duly organized and existing pursuant to under and under by virtue of the Constitution and laws of the State of Ohio and its Charter, and has all necessary full power and authority to thereunder and under the Note Legislation to: (i) enter into this Agreement;
(ii) issue, sell and deliver the Notes as provided in this Agreement; and (iii) perform its duties obligations under and as contemplated in the Continuing Disclosure Agreement relating to the Bonds (the “Continuing Disclosure Agreement”)Note Legislation, the Property Lease, the Lease Agreement, the Trust this Agreement and this Purchase Agreement (collectively, the “City Documents” and, together with the Authority Documents, the “Legal Documents”) and has by official action duly authorized and approved the execution and delivery of, and the performance by the City of the obligations on its part contained in the City DocumentsNotes.
(b) By official The Council has duly passed the Note Ordinance, which authorizes (i) the signing, delivery and due performance of this Agreement and the Notes, and (ii) the taking of any action as may be required on the part of the City prior to or concurrently with consummate the acceptance hereoftransactions contemplated in the Note Legislation, the City has duly approved the distribution of the Preliminary Official Statement this Agreement and the distribution Notes. Any and all necessary approvals of the Official Statement (including in electronic form)those transactions have been obtained, and has duly authorized and approved the execution and delivery of, and the performance by the City of the obligations on its part contained, in the City Documents. When executed and delivered, each City Document will constitute the legally valid and binding obligation of the City enforceable in accordance with its termsand, except as enforcement may be limited required under the securities laws of any state, there is no further requirement as to any other consent, approval, authorization or other order of, filing with, registration with, or certification by, any regulatory authority having jurisdiction over the City in connection with any of those transactions.
(c) The Notes will conform to their description in the Note Legislation. When delivered to and paid for by the Underwriter, the Notes will have been duly authorized, signed, issued and delivered by, and will constitute valid and legal general obligations of, the City. The principal of and interest on the bonds in anticipation of which the Notes are issued, unless paid from other sources and subject to bankruptcy, insolvency, reorganization, moratorium moratorium, fraudulent conveyance or similar transfer, and other laws or equitable principles relating to or affecting creditors’ the rights and remedies of creditors generally.
(c) The Preliminary Official Statement heretofore delivered ; to the Underwriter is hereby deemed final by application of equitable principles, whether considered in a proceeding at law or in equity; to the City as exercise of its date judicial discretion; and as of to limitations on legal remedies against public entities, are payable solely from the date hereof, except for the omission of such information as is permitted to be omitted in accordance with paragraph (b)(i) of Rule 15c2-12. The Preliminary Official Statement, at the date thereof, did not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein (other than the information relating to [the Bond Insurer or] DTC and its book-entry system, as to which no view is expressed), ad valorem property tax sources described in the light of the circumstances under which they were made, not misleading. As of the date hereof and on the Closing, the final Official Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein (other than the information relating to [the Bond Insurer or] DTC and its book-entry system, as to which no view is expressed), in the light of the circumstances under which they were made, not misleadingNote Ordinance.
(d) The execution signing and delivery by of this Agreement, the City Certificate of Award and the Notes, the passage of the City Documents and the approval by the City of the Official Statement Note Ordinance, and compliance with the provisions on the City’s part contained in the City Documentsof this Agreement and of those documents, will not conflict with or result in a violation of the Ohio Constitution, any laws of the State of Ohio or any other relevant jurisdiction (including, without limitation, any debt limitations or other restrictions or conditions on the debt-issuing power of the City), and will not conflict with or result in a violation of or breach of, or constitute a breach default under, any law or administrative regulation or any of the terms, conditions or default under provisions of any law, administrative regulation, judgment, decree, loan agreement, note, resolution, ordinance, indenture, trust agreement, bondmortgage, note, resolution, deed of trust or other agreement or other instrument to which the City is a party or by which it is otherwise subject to, which conflict, breach or default has or may have a material adverse effect on the ability of the City to carry out its obligations under the City Documents, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any material lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties or assets of City under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, trust agreement, bond, note, resolution, agreement or other instrument, except as provided by the City Documentsbound.
(e) The City will advise the 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 Underwriter, which consent will not be unreasonably withheld. The City will advise the Underwriter promptly of the institution of any proceedings known to it by any governmental authority prohibiting or otherwise affecting the use of the Official Statement in connection with the offering, sale or distribution of the Bonds.
(f) The City is not in breach of or default under any applicable law No litigation or administrative regulation of the State action or the United States of America or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City 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, in each case which breach or default has or may have a material adverse effect on the ability of the City to perform its obligations under the City Documents.
(g) The financial statements relating to the receipts, expenditures and cash balances of the City as of June 30, 2017 as set forth in the Official Statement fairly represent the receipts, expenditures and cash balances of the General Fund. Except as disclosed in the Preliminary Official Statement, the Official Statement or otherwise disclosed in writing to the Underwriter, there has not been any materially adverse change in the financial condition of the General Fund or in its operations since June 30, 2017 and, except as disclosed in the Preliminary Official Statement, the Official Statement or otherwise disclosed in writing to the Underwriter, there has been no occurrence, circumstance or combination thereof which is reasonably expected to result in any such materially adverse change.
(h) As of the time of acceptance hereof and as of the date of Closing, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, proceeding is pending or, to the knowledge of the officers City officials signing the Notes, threatened restraining or enjoining, or seeking to restrain or enjoin, the issuance and delivery of the CityNotes, threatened (i) in any way or the levy and collection of taxes to pay the debt charges on the Notes, or contesting or questioning the corporate proceedings and authority under which the Notes are to be authorized, issued, sold, signed or delivered or the validity of the Notes or the issuance of the bonds in anticipation of which the Notes are issued, and, specifically, no judicial action or proceeding challenging the validity of the Notes or those bonds has been commenced by personal service on any member of the Council, the Fiscal Officer or the Executive.
(f) Neither the existence or the boundaries of the City or nor the titles title to their respective offices of the present officers of the City who are responsible for the authorization, issuance, signature and delivery of the Notes is or are being contested in any judicial or administrative proceeding.
(g) No authority or proceeding for the issuance or payment of or security for the Notes has been repealed, revoked or rescinded.
(h) No litigation or administrative action or proceeding contests or affects, in any way, the enforceability of the Note Legislation, this Agreement or the Notes, the powers or authority of the City with respect to their respective offices; the Note Legislation, this Agreement or the Notes, or the exemption of the Notes from registration with the United States Securities and Exchange Commission.
(i) Prior to the Closing, the City will have taken all actions necessary to be taken by it for: (i) the issuance and sale of the Notes upon the terms set forth in the Note Legislation and this Agreement, and (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the execution or signing and delivery of any by the City of the Bonds, or in any way contesting or affecting Notes and of all such other instruments and the validity taking of all such other actions on the part of the Bonds City as may be necessary or appropriate for the City Documents or the effectuation and consummation of the transactions contemplated therebyby the Note Legislation, or contesting this Agreement and the exclusion Notes. The City will take such actions between the date of this Agreement and the Closing as are reasonably necessary to cause the warranties and representations contained in this Agreement to be true as of the interest on the Bonds from gross income for federal income tax purposes or contesting the power of the City to enter into the City Documents; (iii) which may result in any material adverse change to the financial condition of the City or to its ability to pay the Lease Payments when due; 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, and there is no basis for any action, suit, proceeding, inquiry or investigation of the nature described in clause (i) through (iv) of this sentence.
(i) To the extent required by law, the City will undertake, pursuant to the Continuing Disclosure Agreement, to provide annual reports and notices of certain events. A description of this undertaking is set forth in the Preliminary Official Statement and will also be set forth in the final Official Statement. Except as otherwise disclosed in the Preliminary Official Statement, the City has not failed to comply in all material respects with any previous undertakings with regard to the Rule 15c2-12 to provide annual reports or notices of enumerated events in the past five yearsClosing.
(j) Any certificate signed by The City will not take or omit to take any officer of the City authorized to execute such certificate action that will in connection with the issuance, sale and delivery of the Bonds and delivered to the Underwriter shall be deemed a representation and warranty of the City to the Underwriter and the Authority as to the statements made therein but not of the person signing such certificate.
(k) As of the date hereof, the City does not have any material obligations secured by payments from the General Fund of the City, except as disclosed way result in the Official Statement.
(l) The exceptions set forth Note proceeds being applied in a manner other than as provided in the title insurance policy for the Leased Property insuring, subject only to Permitted Encumbrances, the fee interest of the City Note Legislation and certifications contained in the Leased Property, the Authority’s leasehold estate in the Leased Property under the Property Lease, and the City’s leasehold estate in the Leased Property under the Lease Agreement, do not materially impair the use transcript of the Leased Property, the existing facilities and the sites thereof for the purposes for which they are or may reasonably be expected to be heldproceedings.
Appears in 1 contract
Samples: Note Purchase Agreement
