Common use of Representations, Warranties and Covenants of the City Clause in Contracts

Representations, Warranties and Covenants of the City. The City represents, warrants and covenants to the Underwriter as follows. (a) The City is a general law city and municipal corporation of the State of California (the “State”), duly organized and validly existing pursuant to the Constitution and laws of the State. (b) The City had full legal right, power and authority to adopt Resolution No. 2022- , adopted by a majority of the City Council of the City (the “City Council”) on , 2022 (the “Approving Resolution”) and Resolution No. 202 - adopted by a majority of the City Council on , 202 (the “Official Statement Resolution” and, together with the Approving Resolution, the “Resolutions”), and the City has, and upon the Closing will have, full legal right, power and authority: (i) to execute and deliver the Trust Agreement, the Continuing Disclosure Certificate, dated the Closing Date, of the City relating to the Bonds (the “Continuing Disclosure Certificate”) and this Purchase Agreement (collectively, the “Legal Documents”), and to perform its obligations under 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 Legal Documents; (ii) to issue, sell and deliver the Bonds to the Underwriter as provided herein; and (iii) to carry out, give effect to and consummate the transactions contemplated by the Legal Documents and the Resolutions. (c) The City Council has duly and validly adopted the Resolutions at meetings of the City Council that were duly noticed and held and at each of which a quorum was present and acting throughout, and the Resolutions have not been modified or amended and are in full force and effect; and the City Council has duly approved the execution and delivery of the Bonds and the other Legal Documents and the performance by the City of its obligations contained therein, and the taking of any and all action as may be necessary to carry out, give effect to and consummate the transactions contemplated by each of said documents. (d) The Bonds and the other Legal Documents will be duly executed and delivered by the City on or before the Closing Date, and the Bonds, when authenticated and delivered to the Underwriter in accordance with the Trust Agreement, and the Legal Documents will constitute legally valid and binding obligations, enforceable against the City in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally. (e) The City is, and on the Closing Date will be, in compliance, in all respects, with the Legal 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 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 Resolutions 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, 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, which 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) [Reserved]. (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, 202 as set forth in the Preliminary Official Statement and in the Official Statement fairly represent the financial position and results of operations of the City 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 or the Official Statement or as otherwise disclosed in writing to the Underwriter, there has not been any materially adverse change in the financial position and results of operations of the City or in its operations since June 30, 202 and, except as disclosed in the Preliminary Official Statement or the Official Statement or as 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. (m) As of the time of acceptance hereof and as of the Closing Date, 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 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 Legal Documents or the consummation of the transactions contemplated thereby or contesting the power of the City to enter into the Legal Documents; (iii) which may result in any material adverse change to the financial condition of the City or to its ability to make payment of principal or redemption price of and interest on the 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. (n) To the extent required by law, the City will undertake, pursuant to the Continuing Disclosure Certificate, 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 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 Rule 15c2-12 to provide annual reports or notices of enumerated events in the past five years and, the City has been in material compliance during the past five years with its continuing disclosure obligations in accordance with Rule 15c2-12. (o) Any certificate that is signed by any officer of the City who is 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 as to the statements made therein but not of the person signing such certificate. (p) The City will promptly apply the proceeds of the Bonds to refund the Unfunded Liability and fund the Current Obligation as of the date of issuance of the Bonds and to pay costs associated with the issuance and delivery of the Bonds. (q) 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. (r) As of the date hereof, the City does not have any revenue bonds, capital lease obligations, installment payment obligations or other material financial obligations, nor other material obligations secured by payments from the general fund of the City, except as disclosed in the Preliminary Official Statement and the Official Statement. (s) The judgment dated , 202 entered in the Superior Court of the State of California for the County of San Diego in favor of the City in connection with City of Escondido

Appears in 1 contract

Samples: Bond Purchase Agreement

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Representations, Warranties and Covenants of the City. The City representsundersigned on behalf of the City, but not individually, represents and warrants to and covenants to with, as applicable, the Underwriter as follows.that: (a) The City is validly existing as a general law city and municipal corporation duly created, organized and existing under the laws of the State of California Arizona (the “State”), duly organized ) with powers specifically required for purposes of this Agreement and validly existing pursuant to has now and at the Constitution and laws of the State. (b) The City had Closing Date will have full legal right, power and authority to adopt Resolution No. 2022- , cause the Ordinance to be adopted by a majority of the City Council of the City (the “City Council”) on , 2022 (the “Approving Resolution”) and Resolution No. 202 - adopted by a majority of the City Council on , 202 (the “Official Statement Resolution” and, together with the Approving Resolution, the “Resolutions”), and the City has, and upon the Closing will have, full legal right, power and authority: (i) to enter into, execute and deliver the Ground Lease, dated as of December 1, 2019 (the “Ground Lease”), by and between the City and the Trustee, the Ordinance, the Trust Agreement, the Continuing Disclosure CertificateLease, dated the Closing Datethis Agreement, and an Undertaking of the City relating to which satisfies the Bonds requirements of Section (b)(5)(i) of the Rule (the “Continuing Disclosure Certificate”Undertaking” and such documents referred to in this clause (i) and this Purchase Agreement (collectively, hereinafter collectively referred to as the “Legal City Documents”), (ii) to cause the sale and execution and delivery of the Certificates as provided herein and (iii) to perform its obligations under carry out and consummate the Legal Documentstransactions contemplated by the City Documents and the Official Statement, and the City has by complied, and will at the Closing Date be in compliance in all material respects, with the terms 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 City has duly authorized all necessary action to be taken by it for (i) the adoption of the Ordinance and approved the sale and execution and delivery of the Certificates, (ii) the approval, execution and delivery of, and the performance by the City of the obligations on its part contained in in, the Legal Documents; (ii) to issue, sell Certificates and deliver the Bonds to the Underwriter as provided herein; City Documents and (iii) the consummation by it of all other transactions contemplated by the Official Statement and the City Documents 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 to, and consummate the transactions contemplated by herein and in the Legal Documents and the Resolutions.Official Statement; (c) The City Council has duly and validly adopted the Resolutions at meetings of the City Council that were duly noticed and held and at each of which a quorum was present and acting throughoutDocuments constitute legal, and the Resolutions have not been modified or amended and are in full force and effect; and the City Council has duly approved the execution and delivery of the Bonds and the other Legal Documents and the performance by the City of its obligations contained therein, and the taking of any and all action as may be necessary to carry out, give effect to and consummate the transactions contemplated by each of said documents. (d) The Bonds and the other Legal Documents will be duly executed and delivered by the City on or before the Closing Date, and the Bonds, when authenticated and delivered to the Underwriter in accordance with the Trust Agreement, and the Legal Documents will constitute legally valid and binding obligationsobligations of the City, enforceable against the City in accordance with their respective terms, except as such enforcement may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or and other similar laws or equitable and principles of equity relating to or limiting affecting the enforcement of creditors’ rights generally.and, in the case of the Undertaking, annual appropriation of amounts to pay for compliance therewith; the Certificates, when paid for and executed and delivered, in accordance with the Ordinance, the Trust Agreement and this Agreement, will constitute legal, valid and binding obligations of the City entitled to the benefits of the Trust Agreement and enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws and principles of equity relating to or affecting the enforcement of creditors’ rights; and upon the execution and delivery of the Certificates as aforesaid, the Trust Agreement will provide, for the benefit of the holders, from time to time, of the Certificates, the legally valid and binding pledge of and lien it purports to create as set forth in the Trust Agreement; (e) The City is, and on the Closing Date will be, in compliance, in all respects, with the Legal Documents. (fd) 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 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 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 Resolutions 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 to which the City is otherwise subject, and no event has occurred and is continuing which conflictconstitutes or with the passage of time or the giving of notice, breach or both, would constitute a default has or may have a material adverse effect event of default by the City under any of the foregoing, and the execution and delivery of the Certificates and the City Documents and the adoption of the Ordinance and compliance with the provisions on the ability part of the City contained herein and therein will not conflict with or constitute a breach of or default under any constitutional provision, administrative regulation, judgment, decree, loan agreement, trust agreement, bond, note, resolution, agreement or other instrument to carry out which the City is a party or to which the City is or to which any of its obligations under the Legal Documents, property or assets are otherwise subject 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 pledged to secure the Certificates 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 Legal Documents.Certificates and the Trust Agreement; (ie) Prior All authorizations, approvals, licenses, permits, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction of the matter which are required for the due authorization of, which would constitute a condition precedent to, or the absence of which would materially adversely affect the due performance by the City of its obligations under the City Documents and the Certificates have been duly obtained, except such approvals, consents and orders as may be required under the “blue sky” or securities laws of any jurisdiction in connection with the offering and sale of the Certificates; (f) The Certificates conform to the date hereof, the City has provided to the Underwriter for its review the Preliminary Official Statement, which the City has deemed final for purposes of Rule 15c2-12, has approved the distribution of the Preliminary Official Statement and descriptions thereof contained in the Official Statement and has duly authorized under the execution and delivery caption “THE 2019 CERTIFICATES”; the proceeds of the sale of the Certificates will be applied generally as described in the Official Statement (including under the caption “THE 2019 CERTIFICATES” and the Undertaking conforms to the description thereof contained 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) [Reserved]. (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.Appendix F – “FORM OF CONTINUING DISCLOSURE UNDERTAKING”; (lg) The financial statements relating to the receiptsThere is no legislation, expenditures and cash balances of the City as of June 30, 202 as set forth in the Preliminary Official Statement and in the Official Statement fairly represent the financial position and results of operations of the City 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 or the Official Statement or as otherwise disclosed in writing to the Underwriter, there has not been any materially adverse change in the financial position and results of operations of the City or in its operations since June 30, 202 and, except as disclosed in the Preliminary Official Statement or the Official Statement or as 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. (m) As of the time of acceptance hereof and as of the Closing Date, 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 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 or execution or and delivery of any the Certificates or the appropriation of Lease Payments to pay the Bonds, principal of and interest on the Certificates or in any way contesting or affecting the validity adoption of the Bonds Ordinance or the Legal Documents validity or enforceability of the Certificates or the consummation of the transactions contemplated thereby City Documents, or contesting the power exclusion from gross income of the City to enter into the Legal Documents; (iii) which may result in any material adverse change to the financial condition of the City or to its ability to make payment of principal or redemption price of and interest on the Bonds when due; Certificates for federal income tax purposes or (iv) State income tax purposes, or contesting in any way the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that contesting the powers of the City or any authority for the execution and delivery of the Certificates, 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 Certificates or the City Documents; (h) As of the date thereof and hereof, the Preliminary Official Statement or (excluding information under the Official Statement contained headings “TAX EXEMPTION,” “RATING” and “UNDERWRITING” and in Appendix G) 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 As of the date of the City’s acceptance hereof and (ivunless the Official Statement is amended or supplemented pursuant to paragraph (d) of Section 4 of this sentence.Agreement) at all times subsequent thereto during the period up to and including the Closing Date, the Official Statement (excluding information under the headings “TAX EXEMPTION,” “RATING” and “UNDERWRITING” and in Appendix G) does not and 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 they were made, not misleading; (j) 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 supplemented or amended pursuant to such paragraph) at all times subsequent thereto during the period up to and including the Closing Date, the Official Statement as so supplemented or amended (excluding information under the headings “TAX EXEMPTION,” “RATING” and “UNDERWRITING” and in Appendix G) will not contain any untrue statement or 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; (k) The City will apply, or cause to be applied, the proceeds from the sale of the Certificates as provided in and subject to all of the terms and provisions of the Trust Agreement and 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 Certificates; (l) 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 Certificates 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 Certificates 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 Certificates (provided, however, that the City will not 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 Certificates for sale in any jurisdiction or the initiation or threat of any proceeding for that purpose; (m) The financial statements of, and other financial information regarding, the City in the Official Statement fairly present the financial position and results of the City as of the dates and for the periods therein set forth in accordance with generally accepted governmental accounting principles as applicable to governmental units and have been prepared in accordance with generally accepted governmental accounting principles consistently applied throughout the periods covered (except as otherwise disclosed in the Official Statement or financial statements); (n) To the extent required by law, the City will undertake, pursuant to the Continuing Disclosure Certificate, 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 Official Statement. Except as otherwise disclosed in the Preliminary Official Statement, since June 30, 2018, the City has not failed to comply in all incurred any material respects with liabilities, direct or contingent, nor has there been any previous undertakings with regard to Rule 15c2-12 to provide annual reports or notices of enumerated events material adverse change in the past five years andfinancial position, result of operations or condition, financial or otherwise, of the City has been that are not described in material compliance during the past five years with its continuing disclosure obligations Official Statement, whether or not arising from transactions in accordance with Rule 15c2-12.the ordinary course of business; (o) 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 its knowledge, threatened which, if decided adversely to the City, would have a materially adverse effect on the financial condition of the City; (p) 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 Certificates without prior approval of the Underwriter; (q) Any certificate that is certificate, signed by any officer official of the City who is authorized to execute such certificate do so in connection with the issuancetransactions contemplated by this Agreement, sale and delivery of the Bonds and delivered to the Underwriter shall be deemed a representation and warranty of by the City to the Underwriter as to the statements made therein but not of the person signing such certificate.therein; (pr) The City will promptly apply has submitted to the proceeds 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 Bonds City pursuant to refund Section 35-501, Arizona Revised Statutes, and will file the Unfunded Liability and fund information relating to the Current Obligation as Certificates required to be submitted to the Arizona Department of Administration pursuant thereto within 60 days of the date of issuance of the Bonds and to pay costs associated with the issuance and delivery of the Bonds. (q) 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. (r) As of the date hereof, the City does not have any revenue bonds, capital lease obligations, installment payment obligations or other material financial obligations, nor other material obligations secured by payments from the general fund of the City, except as disclosed in the Preliminary Official Statement and the Official Statement.Closing; and (s) The judgment dated , 202 entered Except as otherwise indicated in the Superior Court of the State of California for the County of San Diego in favor of Official Statement, the City has been and is in connection full compliance in all material respects during the last five years with the terms of all continuing disclosure undertakings previously executed by the City of Escondidopursuant to the Rule.

Appears in 1 contract

Samples: Certificate Purchase Agreement

Representations, Warranties and Covenants of the City. The City representsundersigned on behalf of the City, but not individually, represents and warrants to and covenants to with, as applicable, the Underwriter as follows.that: (a) The City is validly existing as a general law city and municipal corporation duly created, organized and existing under the laws of the State of California Arizona (the “State”), duly organized ) with powers specifically required for purposes of this Agreement and validly existing pursuant to has now and at the Constitution and laws of the State. (b) The City had Closing Date will have full legal right, power and authority to adopt Resolution No. 2022- , cause the Ordinance to be adopted by a majority of the City Council of the City (the “City Council”) on , 2022 (the “Approving Resolution”) and Resolution No. 202 - adopted by a majority of the City Council on , 202 (the “Official Statement Resolution” and, together with the Approving Resolution, the “Resolutions”), and the City has, and upon the Closing will have, full legal right, power and authority: (i) to enter into, execute and deliver the Ground Lease, dated as of 1, 2018 (the “Ground Lease”), by and between the City and the Trustee, the Ordinance, the Trust Agreement, the Continuing Disclosure CertificateLease, dated the Closing Datethis Agreement, and an Undertaking of the City relating to which satisfies the Bonds requirements of Section (b)(5)(i) of the Rule (the “Continuing Disclosure Certificate”Undertaking” and such documents referred to in this clause (i) and this Purchase Agreement (collectively, hereinafter collectively referred to as the “Legal City Documents”), (ii) to cause the sale and execution and delivery of the Certificates as provided herein and (iii) to perform its obligations under carry out and consummate the Legal Documentstransactions contemplated by the City Documents and the Official Statement, and the City has by complied, and will at the Closing Date be in compliance in all material respects, with the terms 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 City has duly authorized all necessary action to be taken by it for (i) the adoption of the Ordinance and approved the sale and execution and delivery of the Certificates, (ii) the approval, execution and delivery of, and the performance by the City of the obligations on its part contained in in, the Legal Documents; (ii) to issue, sell Certificates and deliver the Bonds to the Underwriter as provided herein; City Documents and (iii) the consummation by it of all other transactions contemplated by the Official Statement and the City Documents 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 to, and consummate the transactions contemplated by herein and in the Legal Documents and the Resolutions.Official Statement; (c) The City Council has duly and validly adopted the Resolutions at meetings of the City Council that were duly noticed and held and at each of which a quorum was present and acting throughoutDocuments constitute legal, and the Resolutions have not been modified or amended and are in full force and effect; and the City Council has duly approved the execution and delivery of the Bonds and the other Legal Documents and the performance by the City of its obligations contained therein, and the taking of any and all action as may be necessary to carry out, give effect to and consummate the transactions contemplated by each of said documents. (d) The Bonds and the other Legal Documents will be duly executed and delivered by the City on or before the Closing Date, and the Bonds, when authenticated and delivered to the Underwriter in accordance with the Trust Agreement, and the Legal Documents will constitute legally valid and binding obligationsobligations of the City, enforceable against the City in accordance with their respective terms, except as such enforcement may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or and other similar laws or equitable and principles of equity relating to or limiting affecting the enforcement of creditors’ rights generally.and, in the case of the Undertaking, annual appropriation of amounts to pay for compliance therewith; the Certificates, when paid for and executed and delivered, in accordance with the Ordinance, the Trust Agreement and this Agreement, will constitute legal, valid and binding obligations of the City entitled to the benefits of the Trust Agreement and enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws and principles of equity relating to or affecting the enforcement of creditors’ rights; and upon the execution and delivery of the Certificates as aforesaid, the Trust Agreement will provide, for the benefit of the holders, from time to time, of the Certificates, the legally valid and binding pledge of and lien it purports to create as set forth in the Trust Agreement; (e) The City is, and on the Closing Date will be, in compliance, in all respects, with the Legal Documents. (fd) 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 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 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 Resolutions 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 to which the City is otherwise subject, and no event has occurred and is continuing which conflictconstitutes or with the passage of time or the giving of notice, breach or both, would constitute a default has or may have a material adverse effect event of default by the City under any of the foregoing, and the execution and delivery of the Certificates and the City Documents and the adoption of the Ordinance and compliance with the provisions on the ability part of the City contained herein and therein will not conflict with or constitute a breach of or default under any constitutional provision, administrative regulation, judgment, decree, loan agreement, trust agreement, bond, note, resolution, agreement or other instrument to carry out which the City is a party or to which the City is or to which any of its obligations under the Legal Documents, property or assets are otherwise subject 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 pledged to secure the Certificates 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 Legal Documents.Certificates and the Trust Agreement; (ie) Prior All authorizations, approvals, licenses, permits, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction of the matter which are required for the due authorization of, which would constitute a condition precedent to, or the absence of which would materially adversely affect the due performance by the City of its obligations under the City Documents and the Certificates have been duly obtained, except such approvals, consents and orders as may be required under the “blue sky” or securities laws of any jurisdiction in connection with the offering and sale of the Certificates; (f) The Certificates conform to the date hereof, the City has provided to the Underwriter for its review the Preliminary Official Statement, which the City has deemed final for purposes of Rule 15c2-12, has approved the distribution of the Preliminary Official Statement and descriptions thereof contained in the Official Statement and has duly authorized under the execution and delivery caption “THE 2018 CERTIFICATES”; the proceeds of the sale of the Certificates will be applied generally as described in the Official Statement (including under the caption “THE 2018 CERTIFICATES” and the Undertaking conforms to the description thereof contained 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) [Reserved]. (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.Appendix F – “FORM OF CONTINUING DISCLOSURE UNDERTAKING”; (lg) The financial statements relating to the receiptsThere is no legislation, expenditures and cash balances of the City as of June 30, 202 as set forth in the Preliminary Official Statement and in the Official Statement fairly represent the financial position and results of operations of the City 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 or the Official Statement or as otherwise disclosed in writing to the Underwriter, there has not been any materially adverse change in the financial position and results of operations of the City or in its operations since June 30, 202 and, except as disclosed in the Preliminary Official Statement or the Official Statement or as 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. (m) As of the time of acceptance hereof and as of the Closing Date, 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 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 or execution or and delivery of any the Certificates or the appropriation of Lease Payments to pay the Bonds, principal of and interest on the Certificates or in any way contesting or affecting the validity adoption of the Bonds Ordinance or the Legal Documents validity or enforceability of the Certificates or the consummation of the transactions contemplated thereby City Documents, or contesting the power exclusion from gross income of the City to enter into the Legal Documents; (iii) which may result in any material adverse change to the financial condition of the City or to its ability to make payment of principal or redemption price of and interest on the Bonds when due; Certificates for federal income tax purposes or (iv) State income tax purposes, or contesting in any way the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that contesting the powers of the City or any authority for the execution and delivery of the Certificates, 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 Certificates or the City Documents; (h) As of the date thereof and hereof, the Preliminary Official Statement or (excluding information under the Official Statement contained headings “TAX EXEMPTION,” “RATING” and “UNDERWRITING” and in Appendix G) 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 As of the date of the City’s acceptance hereof and (ivunless the Official Statement is amended or supplemented pursuant to paragraph (d) of Section 4 of this sentence.Agreement) at all times subsequent thereto during the period up to and including the Closing Date, the Official Statement (excluding information under the headings “TAX EXEMPTION,” “RATING” and “UNDERWRITING” and in Appendix G) does not and 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 they were made, not misleading; (j) 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 supplemented or amended pursuant to such paragraph) at all times subsequent thereto during the period up to and including the Closing Date, the Official Statement as so supplemented or amended (excluding information under the headings “TAX EXEMPTION,” “RATING” and “UNDERWRITING” and in Appendix G) will not contain any untrue statement or 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; (k) The City will apply, or cause to be applied, the proceeds from the sale of the Certificates as provided in and subject to all of the terms and provisions of the Trust Agreement and 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 Certificates; (l) 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 Certificates 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 Certificates 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 Certificates (provided, however, that the City will not 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 Certificates for sale in any jurisdiction or the initiation or threat of any proceeding for that purpose; (m) The financial statements of, and other financial information regarding, the City in the Official Statement fairly present the financial position and results of the City as of the dates and for the periods therein set forth in accordance with generally accepted governmental accounting principles as applicable to governmental units and have been prepared in accordance with generally accepted governmental accounting principles consistently applied throughout the periods covered (except as otherwise disclosed in the Official Statement or financial statements); (n) To the extent required by law, the City will undertake, pursuant to the Continuing Disclosure Certificate, 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 Official Statement. Except as otherwise disclosed in the Preliminary Official Statement, since June 30, 2017, the City has not failed to comply in all incurred any material respects with liabilities, direct or contingent, nor has there been any previous undertakings with regard to Rule 15c2-12 to provide annual reports or notices of enumerated events material adverse change in the past five years andfinancial position, result of operations or condition, financial or otherwise, of the City has been that are not described in material compliance during the past five years with its continuing disclosure obligations Official Statement, whether or not arising from transactions in accordance with Rule 15c2-12.the ordinary course of business; (o) 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 its knowledge, threatened which, if decided adversely to the City, would have a materially adverse effect on the financial condition of the City; (p) 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 Certificates without prior approval of the Underwriter; (q) Any certificate that is certificate, signed by any officer official of the City who is authorized to execute such certificate do so in connection with the issuancetransactions contemplated by this Agreement, sale and delivery of the Bonds and delivered to the Underwriter shall be deemed a representation and warranty of by the City to the Underwriter as to the statements made therein but not of the person signing such certificate.therein; (pr) The City will promptly apply has submitted to the proceeds 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 Bonds City pursuant to refund Arizona Revised Statues, and will file the Unfunded Liability and fund information relating to the Current Obligation as Certificates required to be submitted to the Arizona Department of Administration pursuant thereto within 60 days of the date of issuance of the Bonds and to pay costs associated with the issuance and delivery of the Bonds. (q) 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. (r) As of the date hereof, the City does not have any revenue bonds, capital lease obligations, installment payment obligations or other material financial obligations, nor other material obligations secured by payments from the general fund of the City, except as disclosed in the Preliminary Official Statement and the Official Statement.Closing; and (s) The judgment dated , 202 entered Except as otherwise indicated in the Superior Court of the State of California for the County of San Diego in favor of Official Statement, the City has been and is in connection full compliance in all material respects during the last five years with the terms of all continuing disclosure undertakings previously executed by the City of Escondidopursuant to the Rule.

Appears in 1 contract

Samples: Certificate Purchase Agreement

Representations, Warranties and Covenants of the City. The City represents, warrants and covenants to the Underwriter as follows. (a) The City is a general law city and municipal corporation and charter city of the State of California (the “State”), duly organized and validly existing pursuant to the Constitution and laws of the State. (b) The City had full legal right, power and authority to adopt Resolution No. 2022- , adopted by a majority of the City Council of the City (the “City Council”) on , 2022 (the “Approving Resolution”) and Resolution No. 202 - adopted by a majority of the City Council on , 202 (the “Official Statement Resolution” and, together with the Approving Resolution, the “Resolutions”), and the City has, and upon at the Closing Date will have, full legal right, power and authority: authority (i) to execute and deliver the Trust Agreement, the Continuing Disclosure Certificate, dated the Closing Date, of the City Certificate relating to the Bonds (the “Continuing Disclosure Certificate”) ), and this Purchase Agreement (collectively, the “Legal Documents”), and to perform its obligations under 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 Legal Documents; , (ii) to issue, sell and deliver the Bonds to the Underwriter as provided herein; , and (iii) to carry out, give effect to and consummate the transactions contemplated by the Legal Documents and the ResolutionsResolution. (c) The City Council has duly and validly adopted the Resolutions Resolution at meetings a meeting of the City Council that were duly noticed and held and at each of which a quorum was present and acting throughoutpresent, and the Resolutions have Resolution has not been modified or amended and are is in full force and effect; , and the City Council has duly approved the execution and delivery of the Bonds and the other Legal Documents Documents, and the performance by the City of its obligations contained therein, and the taking of any and all action as may be necessary to carry out, give effect to and consummate the transactions contemplated by each of said documents. (d) The Bonds and the other Legal Documents have been, on or before the Closing Date will be be, duly executed and delivered by the City City, and, on or before the Closing Date, and the Bonds, when authenticated and delivered to the Underwriter in accordance with the Trust Agreement, and the other Legal Documents will constitute legally valid and binding obligations, enforceable against the City in accordance with 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 limiting creditors' rights generally. (e) The City is, and on at the Closing Date will be, in compliance, in all respects, with the Legal 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 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 Resolutions 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 subjectsubject 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, which 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 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- 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) [Reserved]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, 202 20[19][20] as set forth in the Preliminary Official Statement and in the Official Statement fairly represent the financial position and results of operations of the City 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 or Statement, the Official Statement or as otherwise disclosed in writing to the Underwriter, there has not been any materially adverse change in the financial position and results of operations of the City or in its operations since June 30, 202 20[19][20] and, except as disclosed in the Preliminary Official Statement or Statement, the Official Statement or as 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. (m) As of the time of acceptance hereof and as of the Closing Datedate 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 City, threatened: 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 Legal Documents or the consummation of the transactions contemplated thereby or contesting the power of the City to enter into the Legal Documents; (iii) which may result in any material adverse change to the financial condition of the City or to its ability to make payment of principal or redemption price of and interest on the 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. (n) To the extent required by law, the City will undertake, pursuant to the Continuing Disclosure Certificate, 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 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 Rule 15c2-12 to provide annual reports or notices of enumerated events in the past five years and, the City has been in material compliance during the past five years with its continuing disclosure obligations in accordance with Rule 15c2-12. (o) Any certificate that is signed by any officer of the City who is 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 as to the statements made therein but not of the person signing such certificate. (p) The City will promptly apply the proceeds of the Bonds to refund the Unfunded Liability and fund the Current Obligation as of the date of issuance of the Bonds and to pay costs associated with the issuance and delivery of the Bonds. (q) 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. (r) As of the date hereof, the City does not have any revenue bonds, capital lease obligations, installment payment obligations or other material financial obligations, nor other material obligations secured by payments from the general fund of the City, except as disclosed in the Preliminary Official Statement and the Official Statement. (s) The judgment dated , 202 entered in the Superior Court of the State of California for the County of San Diego in favor of the City in connection with City of Escondido;

Appears in 1 contract

Samples: Bond Purchase Agreement

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Representations, Warranties and Covenants of the City. The City representsundersigned on behalf of the City, but not individually, represents and warrants to and covenants to with, as applicable, the Underwriter as follows.that: (a) The City is validly existing as a general law city and municipal corporation duly created, organized and existing under the laws of the State of California Arizona (the “State”), duly organized ) with powers specifically required for purposes of this Agreement and validly existing pursuant to has now and at the Constitution and laws of the State. (b) The City had Closing Date will have full legal right, power and authority to adopt Resolution No. 2022- , cause the Ordinance to be adopted by a majority of the City Council of the City (the “City Council”) on , 2022 (the “Approving Resolution”) and Resolution No. 202 - adopted by a majority of the City Council on , 202 (the “Official Statement Resolution” and, together with the Approving Resolution, the “Resolutions”), and the City has, and upon the Closing will have, full legal right, power and authority: (i) to enter into, execute and deliver the Ground Lease, dated as of August 1, 2020 (the “Ground Lease”), by and between the City and the Trustee, the Ordinance, the Trust Agreement, the Continuing Disclosure CertificateLease, dated the Closing Datethis Agreement, and an Undertaking of the City relating to which satisfies the Bonds requirements of Section (b)(5)(i) of the Rule (the “Continuing Disclosure Certificate”Undertaking” and such documents referred to in this clause (i) and this Purchase Agreement (collectively, hereinafter collectively referred to as the “Legal City Documents”), (ii) to cause the sale and to perform its obligations under execution and delivery of the Legal DocumentsCertificates as provided herein, and (iii) to carry out and consummate the transactions contemplated by the City Documents and the Official Statement, and the City has by complied, and will at the Closing Date be in compliance in all material respects, with the terms 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 City has duly authorized all necessary action to be taken by it for (i) the adoption of the Ordinance and approved the sale and execution and delivery of the Certificates, (ii) the approval, execution and delivery of, and the performance by the City of the obligations on its part contained in in, the Legal Certificates and the City Documents; (ii) to issue, sell and deliver the Bonds to the Underwriter as provided herein; and (iii) the consummation by it of all other transactions contemplated by the Official Statement and the City Documents 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 to, and consummate the transactions contemplated by herein and in the Legal Documents and the Resolutions.Official Statement; (c) The City Council has duly and validly adopted the Resolutions at meetings of the City Council that were duly noticed and held and at each of which a quorum was present and acting throughoutDocuments constitute legal, and the Resolutions have not been modified or amended and are in full force and effect; and the City Council has duly approved the execution and delivery of the Bonds and the other Legal Documents and the performance by the City of its obligations contained therein, and the taking of any and all action as may be necessary to carry out, give effect to and consummate the transactions contemplated by each of said documents. (d) The Bonds and the other Legal Documents will be duly executed and delivered by the City on or before the Closing Date, and the Bonds, when authenticated and delivered to the Underwriter in accordance with the Trust Agreement, and the Legal Documents will constitute legally valid and binding obligationsobligations of the City, enforceable against the City in accordance with their respective terms, except as such enforcement may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or and other similar laws or equitable and principles of equity relating to or limiting affecting the enforcement of creditors’ rights generally.and, in the case of the Undertaking, annual appropriation of amounts to pay for compliance therewith; the Certificates, when paid for and executed and delivered, in accordance with the Ordinance, the Trust Agreement and this Agreement, will constitute legal, valid and binding obligations of the City entitled to the benefits of the Trust Agreement and enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws and principles of equity relating to or affecting the enforcement of creditors’ rights; and upon the execution and delivery of the Certificates as aforesaid, the Trust Agreement will provide, for the benefit of the holders, from time to time, of the Certificates, the legally valid and binding pledge of and lien it purports to create as set forth in the Trust Agreement; (e) The City is, and on the Closing Date will be, in compliance, in all respects, with the Legal Documents. (fd) 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 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 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 Resolutions 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 to which the City is otherwise subject, and no event has occurred and is continuing which conflictconstitutes or with the passage of time or the giving of notice, breach or both, would constitute a default has or may have a material adverse effect event of default by the City under any of the foregoing, and the execution and delivery of the Certificates and the City Documents and the adoption of the Ordinance and compliance with the provisions on the ability part of the City contained herein and therein will not conflict with or constitute a breach of or default under any constitutional provision, administrative regulation, judgment, decree, loan agreement, trust agreement, bond, note, resolution, agreement or other instrument to carry out which the City is a party or to which the City is or to which any of its obligations under the Legal Documents, property or assets are otherwise subject 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 pledged to secure the Certificates 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 Legal Documents.Certificates and the Trust Agreement; (ie) Prior All authorizations, approvals, licenses, permits, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction of the matter which are required for the due authorization of, which would constitute a condition precedent to, or the absence of which would materially adversely affect the due performance by the City of its obligations under the City Documents and the Certificates have been duly obtained, except such approvals, consents and orders as may be required under the “blue sky” or securities laws of any jurisdiction in connection with the offering and sale of the Certificates; (f) The Certificates conform to the date hereof, the City has provided to the Underwriter for its review the Preliminary Official Statement, which the City has deemed final for purposes of Rule 15c2-12, has approved the distribution of the Preliminary Official Statement and descriptions thereof contained in the Official Statement and has duly authorized under the execution and delivery caption “THE TAXABLE 2020A CERTIFICATES”; the proceeds of the sale of the Certificates will be applied generally as described in the Official Statement (including under the caption “PLAN OF FINANCE” and the Undertaking conforms to the description thereof contained 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) [Reserved]. (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.Appendix G – “FORM OF CONTINUING DISCLOSURE UNDERTAKING”; (lg) The financial statements relating to the receiptsThere is no legislation, expenditures and cash balances of the City as of June 30, 202 as set forth in the Preliminary Official Statement and in the Official Statement fairly represent the financial position and results of operations of the City 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 or the Official Statement or as otherwise disclosed in writing to the Underwriter, there has not been any materially adverse change in the financial position and results of operations of the City or in its operations since June 30, 202 and, except as disclosed in the Preliminary Official Statement or the Official Statement or as 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. (m) As of the time of acceptance hereof and as of the Closing Date, 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 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 or execution or and delivery of any the Certificates or the appropriation of Lease Payments to pay the Bonds, principal of and interest on the Certificates or in any way contesting or affecting the validity adoption of the Bonds Ordinance or the Legal Documents validity or enforceability of the Certificates or the consummation of the transactions contemplated thereby City Documents, or contesting the power of the City to enter into the Legal Documents; (iii) which may result in any material adverse change to the financial condition of the City or to its ability to make payment of principal or redemption price of and interest on the Bonds 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 or asserting that contesting the powers of the City or any authority for the execution and delivery of the Certificates, 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 Certificates or the City Documents; (h) As of the date thereof and hereof, the Preliminary Official Statement or (excluding information under the Official Statement contained headings “TAX MATTERS,” “RATING” and “UNDERWRITING” and in Appendix H) 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. (n) To the extent required by law, the City will undertake, pursuant to the Continuing Disclosure Certificate, 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 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 Rule 15c2-12 to provide annual reports or notices of enumerated events in the past five years and, the City has been in material compliance during the past five years with its continuing disclosure obligations in accordance with Rule 15c2-12. (o) Any certificate that is signed by any officer of the City who is 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 as to the statements made therein but not of the person signing such certificate. (p) The City will promptly apply the proceeds of the Bonds to refund the Unfunded Liability and fund the Current Obligation as of the date of issuance of the Bonds and to pay costs associated with the issuance and delivery of the Bonds. (q) 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. (r) As of the date hereof, the City does not have any revenue bonds, capital lease obligations, installment payment obligations or other material financial obligations, nor other material obligations secured by payments from the general fund of the City, except as disclosed in ’s acceptance hereof and (unless the Preliminary 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 Closing Date, the Official Statement. Statement (s) The judgment dated , 202 entered in excluding information under the Superior Court of the State of California for the County of San Diego in favor of the City in connection with City of Escondidoheadings “TAX MATTERS,” “RATING” and

Appears in 1 contract

Samples: Certificate Purchase Agreement

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