Representations, Warranties and Covenants of the County. The County represents, warrants and covenants to the Underwriter and the Authority that: (a) The County is a political subdivision of the State of California duly organized and existing under and by virtue of the laws of the State. (b) The County has full legal right, power, and authority to adopt or enter into, as the case may be, and to carry out and consummate the transactions on its part contemplated by the County Documents. (c) By all necessary official action, the County has duly authorized and approved the County Documents, has duly authorized and approved the Preliminary Official Statement and the Official Statement, and has duly authorized and approved the execution and delivery of, and the performance by the County of the obligations on its part contained in, the County Documents and the consummation by it of all other transactions contemplated by the County Documents in connection with the issuance of the Bonds. As of the date hereof, such authorizations and approvals are in full force and effect and have not been amended, modified, or rescinded. When executed and delivered, and assuming due execution and delivery by the other parties thereto, if applicable, the County Documents will constitute the legally valid and binding obligations of the County enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally, or by the exercise of judicial discretion and the limitations on legal remedies against municipal corporations in the State. The County has complied, and will at the Closing be in compliance in all material respects with the terms of the County Documents. (d) To its knowledge, (i) the County 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, bond, note, resolution, agreement or other instrument to which the County is a party or is otherwise subject which breach or default has or may have a materially adverse effect on the ability of the County to perform its obligations under the County Documents, and (ii) 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 of the County Documents, if applicable, and compliance with the provisions on the County’s part contained therein, 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, bond, note, resolution, agreement or other instrument to which the County is a party or is otherwise subject as of the date hereof and the Closing, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the County or under the terms of any such law, regulation or instrument, except as may be provided by the County Documents. (e) To its knowledge, all material authorizations, approvals, licenses, permits, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction of the matter that are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by the County of its obligations in connection with the County Documents have been duly obtained or, when required for future performance, are expected to be obtained, other than such approvals, consents and orders as may be required under the Blue Sky or securities laws of any state in connection with the offering and sale of the Bonds; except as described in or contemplated by the Preliminary Official Statement, all authorizations, approvals, licenses, permits, consents and orders of any governmental authority, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the County of its obligations under the County Documents have been duly obtained. (f) The Preliminary Official Statement was as of its date, and the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and the Preliminary Official Statement and the Official Statement do not and will not contain and up to and including the Closing will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (except that this representation does not include information regarding DTC and its book-entry only system, as to which no view is expressed). (g) The County will advise the Underwriter promptly of any proposal to amend or supplement the Official Statement. The County 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. (h) As of the time of acceptance hereof and the Closing, except as disclosed in the Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental authority, public board or body, pending, with service of process upon the County having been accomplished, or, to the knowledge of the County, threatened in writing to the County: (i) in any way questioning the corporate existence of the County or the titles of the officers of the County to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance or delivery of any of the Bonds, or the payment or collection of Rental Payments with respect to the Lease or of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, or the County Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from taxation, or contesting the powers of the Authority to issue the Bonds; (iii) which would be likely to result in any material adverse change relating to the business, operations or financial condition of the County; and (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 necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (i) To the County’s knowledge, there is no basis for any action, suit, proceeding, inquiry, or investigation of the nature described in clauses (i) through (iv) of paragraph 7(h). (j) Until the date that is twenty-five (25) days after the “end of the underwriting period” (as hereinafter defined), if any event shall occur of which the County is aware that would cause the Official Statement to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements in the Official Statement, in light of the circumstances under which they were made, not misleading (except that this representation does not include information regarding DTC and its book entry only system, as to which no view is expressed), the County shall forthwith notify the Underwriter of any such event of which it has knowledge and shall cooperate fully in furnishing any information available to it for any supplement to the Official Statement necessary, in the Underwriter’s reasonable opinion, so that the statements therein as so supplemented will not be misleading in light of the circumstances existing at such time and the County shall promptly furnish to the Underwriter a reasonable number of copies of such supplement. As used herein, the term “end of the underwriting period” means the later of such time as: (i) the Authority delivers the Bonds to the Underwriter; or (ii) the Underwriter does not retain, directly or as a member of an underwriting syndicate, an unsold balance of the Bonds for sale to the public. Unless the Underwriter gives notice to the contrary, the “end of the underwriting period” shall be deemed to be the Closing Date. Any notice delivered pursuant to this provision shall be written notice delivered by the Underwriter at or prior to the Closing Date of the Bonds and shall specify a date (other than the Closing Date) to be deemed the “end of the underwriting period.” (k) Based on a review of its prior undertakings with respect to the Rule, and except as disclosed in the Preliminary Official Statement and the Official Statement, the County has not within the last five years failed to comply in any material respect with any continuing disclosure undertakings with regard to Rule 15c2-12 or to provide annual reports or notices of enumerated events specified in such rule. (l) The financial statements relating to the receipts, expenditures and cash balances of the County as of June 30, 2015 attached as Appendix B to the Official Statement fairly represent the receipts, expenditures and cash balances of the County. Except as disclosed in the Official Statement or otherwise disclosed in writing to the Underwriter, as of the date hereof and the Closing, there has not been any materially adverse change in the financial condition of the County or in its operations since June 30, 2015, nor any occurrence or circumstance, or combination thereof, that is reasonably expected to result in any such materially adverse change. (m) To the extent required by law, the County will undertake, pursuant to the Continuing Disclosure Certificate and the other County Documents, to provide annual reports and notices of certain enumerated events. A description of this undertaking is set forth in Appendix F to the Preliminary Official Statement and will also be set forth in the Official Statement. (n) Any certificate signed by any officer of the County authorized to execute such certificate in connection with the execution, sale and delivery of the Bonds and delivered to the Underwriter shall be deemed a representation and warranty of the County to the Underwriter and the Authority as to the statements made therein but not of the person signing such certificate.
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations, Warranties and Covenants of the County. The County represents, warrants and covenants to and with the Underwriter Bank (all such representations, warranties and the Authority covenants to be continuing) that:
(a) The County is a political subdivision municipal corporation of the State of California duly State, validly organized and existing under and by virtue of the laws of the State.State and has all powers necessary to enter into the transactions contemplated by this Contract and the Deed of Trust and to carry out its obligations hereunder;
(b) The County has full legal rightagrees that during the term of this Contract, powerit will take no action that would adversely affect its existence as a municipal corporation in good standing in the State, and authority to adopt or enter into, as the case may be, and to carry out and consummate the transactions on its part contemplated by cause the County Documents.to be consolidated with or merge into another municipal corporation or political subdivision of the State or permit one or more other municipal corporations or political subdivisions of the State to consolidate with or merge into it, unless the County is the surviving entity or the entity created thereby expressly assumes in writing the County’s obligations hereunder;
(c) By all necessary official actionThis Contract, the County has duly authorized Deed of Trust and approved the County Documents, has duly authorized all other documents relating hereto and approved the Preliminary Official Statement and the Official Statement, and has duly authorized and approved the execution and delivery ofthereto, and the performance of the County’s obligations hereunder and thereunder, have been duly and validly authorized, executed and delivered by the County of the obligations on its part contained inand approved under all laws, regulations and procedures applicable to the County Documents including, but not limited to, compliance with public meeting and bidding requirements, and, assuming the consummation by it of all other transactions contemplated by the County Documents in connection with the issuance of the Bonds. As of the date hereofdue authorization, such authorizations and approvals are in full force and effect and have not been amended, modified, or rescinded. When executed and delivered, and assuming due execution and delivery hereof and thereof by the other parties hereto and thereto, if applicableconstitute valid, the County Documents will constitute the legally valid legal and binding obligations of the County County, enforceable in accordance with their respective terms, except as enforcement may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or similar insolvency and other laws or equitable principles relating to or affecting the enforcement of creditors’ rights generally, or by the exercise generally and such principles of judicial discretion and the limitations on legal remedies against municipal corporations in the State. The County has complied, and will at the Closing be in compliance in all material respects with the terms of the County Documents.equity as a court having proper jurisdiction may impose;
(d) To its knowledgeNeither the execution and delivery of this Contract or the Deed of Trust or the consummation of the transactions contemplated hereby or thereby, (i) nor the fulfillment of or compliance with the terms and conditions hereof or thereof conflicts with or results in a breach of the terms, conditions, or provisions of any restriction or any agreement or instrument to which the County is now a party or by which the County is bound or constitutes a default under any of the foregoing, nor conflicts with or results in a violation of any provision of applicable law or regulation governing the County and no representation, covenant and warranty in this Contract is false, misleading or erroneous in any material respect;
(e) There is no action, suit, proceeding or investigation at law or in equity before or by any court, public board or body pending or, to the best of the County’s knowledge, threatened, against or affecting the County challenging the validity or enforceability of this Contract, the Deed of Trust or any other documents relating hereto and the performance of the County’s obligations hereunder and thereunder, and compliance with the provisions hereof or thereof, under the circumstances contemplated hereby or thereby, does not and will not in any material respect in conflict with, constitute on the part of the County a breach of or default under under, or result in the creation of a lien or other encumbrance on any applicable constitutional provision, law or administrative regulation of any state or property of the United States, County (except as contemplated herein or therein) pursuant to any agency or instrumentality of either, or any applicable judgment or decree, or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the County is a party or is otherwise subject which breach or default has or may have a materially adverse effect on the ability of the County to perform its obligations under the County Documents, and (ii) no event has occurred and is continuing which with the passage of time or the giving of noticeparty, or both, would constitute such a default or event of default under any such instrument; and the adoption, execution and delivery of the County Documents, if applicable, and compliance with the provisions on the County’s part contained therein, will not conflict in any material way with or constitute a material breach of or a material default under any constitutional provision, existing law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement court order or other instrument consent decree to which the County is subject;
(f) Other than building permits or other procedural requirements which are a party or is otherwise subject as prerequisite to the construction of the date hereof Project and the Closing, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any approval of the property LGC, which approval has been obtained, no approval or assets of the County or under the terms of any such law, regulation or instrument, except as may be provided by the County Documents.
(e) To its knowledge, all material authorizations, approvals, licenses, permits, consents and orders of consent is required from any governmental authority, legislative body, board, agency authority with respect to the entering into or commission having jurisdiction of the matter that are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by the County of its obligations in connection with the County Documents have been duly obtained or, when required for future performance, are expected to be obtained, other than such approvals, consents and orders as may be required under the Blue Sky or securities laws of any state in connection with the offering and sale of the Bonds; except as described in or contemplated by the Preliminary Official Statement, all authorizations, approvals, licenses, permits, consents and orders of any governmental authority, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance bythis Contract, the County Deed of its obligations under Trust and all other documents related hereto and thereto and the County Documents have transactions contemplated hereby and thereby or if such approval is required, such approval has been duly obtained.
(f) The Preliminary Official Statement was as of its date, and the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and the Preliminary Official Statement and the Official Statement do not and will not contain and up to and including the Closing will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (except that this representation does not include information regarding DTC and its book-entry only system, as to which no view is expressed).;
(g) The County funds in the Project Fund and any investment earnings thereon will advise be used only for the Underwriter promptly of any proposal to amend or supplement the Official Statement. The County 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 purposes permitted in connection with the offering, sale or distribution of the Bonds.Article IV;
(h) As There are no liens or encumbrances on the Mortgaged Property other than the lien created by this Contract, the Deed of the time of acceptance hereof Trust and the Closingother liens permitted thereby, except as disclosed including the Lease and Agency Agreement. Any lease in place, including the Official StatementLease and Agency Agreement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental authority, public board or body, pending, with service of process upon the County having been accomplished, or, subordinate to the knowledge lien created by this Contract and the Deed of the County, threatened in writing to the County: (i) in any way questioning the corporate existence of the County or the titles of the officers of the County to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance or delivery of any of the Bonds, or the payment or collection of Rental Payments with respect to the Lease or of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, or the County Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from taxation, or contesting the powers of the Authority to issue the Bonds; (iii) which would be likely to result in any material adverse change relating to the business, operations or financial condition of the County; and
(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 necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.Trust;
(i) To The resolutions relating to the County’s knowledgeperformance by the County of this Contract, there is no basis for the Deed of Trust and the transactions contemplated hereby and thereby, have been duly adopted, are in full force and effect, and have not been in any actionrespect modified, suit, proceeding, inquiry, revoked or investigation of the nature described in clauses (i) through (iv) of paragraph 7(h).rescinded;
(j) Until The Project is essential to the date that is twenty-five (25) days after the “end proper, efficient and economical operation of the underwriting period” (as hereinafter defined), if any event shall occur County and the delivery of which services and permits the County to carry out its public functions that it is aware that would cause the Official Statement authorized and required by law to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements in the Official Statement, in light of the circumstances under which they were made, not misleading (except that this representation does not include information regarding DTC and its book entry only system, as to which no view is expressed), the County shall forthwith notify the Underwriter of any such event of which it has knowledge and shall cooperate fully in furnishing any information available to it for any supplement to the Official Statement necessary, in the Underwriter’s reasonable opinion, so that the statements therein as so supplemented will not be misleading in light of the circumstances existing at such time and the County shall promptly furnish to the Underwriter a reasonable number of copies of such supplement. As used herein, the term “end of the underwriting period” means the later of such time as: (i) the Authority delivers the Bonds to the Underwriter; or (ii) the Underwriter does not retain, directly or as a member of an underwriting syndicate, an unsold balance of the Bonds for sale to the public. Unless the Underwriter gives notice to the contrary, the “end of the underwriting period” shall be deemed to be the Closing Date. Any notice delivered pursuant to this provision shall be written notice delivered by the Underwriter at or prior to the Closing Date of the Bonds and shall specify a date (other than the Closing Date) to be deemed the “end of the underwriting period.”perform;
(k) Based on a review The County reasonably believes sufficient funds will be available to satisfy all of its prior undertakings with respect to the Rule, and except as disclosed in the Preliminary Official Statement and the Official Statement, the County has not within the last five years failed to comply in any material respect with any continuing disclosure undertakings with regard to Rule 15c2-12 or to provide annual reports or notices of enumerated events specified in such rule.obligations hereunder;
(l) The financial statements relating County shall (1) cause its County Manager to include the receipts, expenditures Installment Payments coming due in any Fiscal Year in the corresponding annual budget request and cash balances of shall require the County as of June 30, 2015 attached as Appendix B Manager to the Official Statement fairly represent the receipts, expenditures and cash balances of the County. Except as disclosed in the Official Statement use his or otherwise disclosed in writing her best efforts to the Underwriter, as of the date hereof and the Closing, there has not been any materially adverse change in the financial condition of the County or in its operations since June 30, 2015, nor any occurrence or circumstance, or combination thereof, that is reasonably expected to result in any such materially adverse change.
(m) To the extent required by law, the County will undertake, pursuant to the Continuing Disclosure Certificate and the other County Documents, to provide annual reports and notices of certain enumerated events. A description of this undertaking is set forth in Appendix F to the Preliminary Official Statement and will also be set forth in the Official Statement.
(n) Any certificate signed by any officer of the County authorized to execute such certificate in connection with the execution, sale and delivery of the Bonds and delivered to the Underwriter shall be deemed a representation and warranty of the County to the Underwriter and the Authority as to the statements made therein but not of the person signing such certificate.obtain an appropriation therefor and
Appears in 1 contract
Samples: Installment Financing Contract
Representations, Warranties and Covenants of the County. The County hereby represents, warrants and covenants to agrees with the Underwriter and the Authority that:
(a) The County is a political subdivision of the State of California duly organized and existing has all necessary power and authority to adopt its resolution adopted on , 2019 (the “County Resolution”), to enter into and perform its duties under the Site Lease, the Lease Agreement, the Continuing Disclosure Certificate, the Escrow Agreement, the Termination Agreement and this Purchase Agreement (the “County Agreements”) and, when executed and delivered by virtue the respective parties thereto, the County Agreements will constitute legal, valid and binding obligations of the laws of the StateCounty enforceable in accordance with their respective terms.
(b) The board of supervisors (the “Board of Supervisors”) of the County has full legal righttaken official action by adopting the County Resolution by a majority of the members of the Board of Supervisors at a meeting duly called, powernoticed and conducted, at which a quorum was present and authority to adopt or enter intoacting throughout, authorizing the execution, delivery and due performance of the County Agreements and the Official Statement and the taking of any and all such action as may be required on the case may be, and part of the County to carry out out, give effect to and consummate the transactions on its part contemplated by the County Documentshereby.
(c) By all necessary official action, the County has duly authorized and approved adopted the County DocumentsResolution, has duly authorized the preparation and approved delivery of the Preliminary Official Statement and the preparation, execution and delivery of the Official Statement, and has duly authorized and approved the execution and delivery of, and the performance by the County of the its obligations on its part contained inunder, the County Documents Agreements, and the consummation by it of all other transactions contemplated by the County Documents in connection with Resolution, the issuance of County Agreements, the BondsPreliminary Official Statement and the Official Statement. As of When executed and delivered by the date hereofrespective parties thereto, such authorizations the County Agreements (assuming due authorization, execution and approvals are delivery by and enforceability against the other parties thereto) will be in full force and effect and have not been amended, modified, or rescinded. When executed and delivered, and assuming due execution and delivery by the other parties thereto, if applicable, the County Documents each will constitute the legally legal, valid and binding agreements or obligations of the County County, enforceable in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ limiting creditors rights generally, or by the application of equitable principles, the exercise of judicial discretion and the limitations on legal remedies against municipal corporations public entities in the State. The County has complied, and will at the Closing be in compliance in all material respects with the terms of the County Documents.
(d) To its knowledge, (i) At the County is not in any material respect in breach time 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, bond, note, resolution, agreement or other instrument to which the County is a party or is otherwise subject which breach or default has or may have a materially adverse effect on the ability of the County to perform its obligations under the County Documents, and (ii) 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 of the County Documents, if applicable, and compliance with the provisions on the County’s part contained therein, 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, bond, note, resolution, agreement or other instrument to which the County is a party or is otherwise subject as of the date acceptance hereof and the Closing, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the County or under the terms of any such law, regulation or instrument, except as may be provided by the County Documents.
(e) To its knowledge, all material authorizations, approvals, licenses, permits, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction of the matter that are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by the County of its obligations in connection with the County Documents have been duly obtained or, when required for future performance, are expected to be obtained, other than such approvals, consents and orders as may be required under the Blue Sky or securities laws of any state in connection with the offering and sale of the Bonds; except as described in or contemplated by the Preliminary Official Statement, all authorizations, approvals, licenses, permits, consents and orders of any governmental authority, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the County of its obligations under the County Documents have been duly obtained.
(f) The Preliminary Official Statement was as of its date, and the Official Statement is, and at all times subsequent to the date of the Official Statement thereto up to and including the Closing will betime of the Closing, true the information and correct statements in all material respects, and the Preliminary Official Statement and the Official Statement (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 and up to and including the Closing will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (except that this representation does not include information regarding DTC and its book-entry only system, as to which no view is expressed).
(g) The County will advise the Underwriter promptly of any proposal to amend or supplement the Official Statement. The County 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.
(h) As of the time of acceptance hereof and the Closing, except as disclosed in the Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental authority, public board or body, pending, with service of process upon the County having been accomplished, or, to the knowledge of the County, threatened in writing to the County: (i) in any way questioning the corporate existence of the County or the titles of the officers of the County to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance or delivery of any of the Bonds, or the payment or collection of Rental Payments with respect to the Lease or of any amounts pledged or required to be pledged to pay the principal of and interest on the Bonds, stated therein or in any way contesting or affecting the validity of the Bonds, or the County Documents or the consummation of the transactions contemplated thereby or hereby, or contesting the exclusion of the interest on the Bonds from taxation, or contesting the powers of the Authority to issue the Bonds; (iii) which would be likely to result in any material adverse change relating to the business, operations or financial condition of the County; and
(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 necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ie) To As of the County’s knowledgedate hereof, there is no basis for any action, suit, proceeding, inquiry, proceeding or investigation before or by any court, public board or body pending against the County or, to the best knowledge of the nature described in clauses County, threatened, wherein an unfavorable decision, ruling or finding would: (i) through (iv) of paragraph 7(h).
(j) Until affect the date that is twenty-five (25) days after the “end creation, organization, existence or powers of the underwriting period” County, or the titles of its members or officers; (as hereinafter defined)ii) in any way question or affect the validity or enforceability of County Agreements or the Bonds, if or (iii) in any event shall occur of way question or affect the Purchase Agreement or the transactions contemplated by the Purchase Agreement, the Official Statement, or any other agreement or instrument to which the County is aware 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 County required for the execution and delivery of this Purchase Agreement or the consummation by the County of the other transactions contemplated by the Official Statement or the County Agreements.
(g) Any certificate signed by any official of the County authorized to do so will be deemed a representation and warranty by the County to the Underwriter as to the statements made therein.
(h) Except as previously disclosed to the Underwriter, the County is not in default, and at no time has the County 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.
(1) Except as disclosed in 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 County since June 30, 2018, and there has been no occurrence or circumstance or combination thereof that is reasonably expected to result in any such materially adverse change.
(2) If between the date of this Purchase Agreement and the date which is 25 days following the End of the Underwriting Period, any event will occur which might or would cause the Official Statement Statement, as then supplemented or amended, to contain any untrue statement of a material fact or to omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the County will immediately 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 County 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 County 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 County 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 County will use its best efforts to assist the Underwriter in preparing (at the expense of the County 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 in the Official Statement, in light of the circumstances under which they were made, not misleading (except that this representation does not include information regarding DTC and its book entry only system, as to which no view is expressed), the County shall forthwith notify the Underwriter of any such event of which it has knowledge and shall cooperate fully in furnishing any information available to it for any supplement to the Official Statement necessarytherein, in the Underwriter’s reasonable opinion, so that the statements therein as so supplemented will not be misleading in light of the circumstances existing at such the time and the Official Statement is delivered to a purchaser, not misleading. For the purposes of this subsection, the County shall promptly will furnish to the Underwriter a reasonable number of copies of such supplement. As used herein, the term “end of the underwriting period” means the later of such time as: (i) the Authority delivers the Bonds to the Underwriter; or (ii) the Underwriter does not retain, directly or as a member of an underwriting syndicate, an unsold balance of the Bonds for sale to the public. Unless the Underwriter gives notice to the contrary, the “end of the underwriting period” shall be deemed to be the Closing Date. Any notice delivered pursuant to this provision shall be written notice delivered by the Underwriter at or prior to the Closing Date of the Bonds and shall specify a date (other than the Closing Date) to be deemed the “end of the underwriting period.”
(k) Based on a review of its prior undertakings information with respect to itself as the Rule, and except as disclosed in the Preliminary Official Statement and the Official Statement, the County has not within the last five years failed Underwriter may from time to comply in any material respect with any continuing disclosure undertakings with regard to Rule 15c2-12 or to provide annual reports or notices of enumerated events specified in such ruletime reasonably request.
(lj) The financial statements relating to the receipts, expenditures and cash balances of the County as of June 30, 2015 attached as Appendix B to the Official Statement fairly represent the receipts, expenditures and cash balances of the County. Except as disclosed in the Official Statement or otherwise disclosed in writing to the Underwriter, as the County has not previously failed to comply in all material respects with any undertakings under Rule 15c2-12 in the past five years. The report of dated , 2020 (the “Continuing Disclosure Due Diligence Report”) identifies all of the date hereof issues for which the Authority, the County and other related entities were obligated to provide continuing disclosure under Rule 15c2-12 during the Closing, there has not been any materially adverse change in the financial condition past five years and all of the material event filings that were required with respect to such issues during the five-year period.
(k) The County or in does not need the consent of its operations since auditor to include its comprehensive annual financial report for the fiscal year ended June 30, 2015, nor any occurrence or circumstance, or combination thereof, that is reasonably expected 2018 as an appendix to result in any such materially adverse change.
(m) To the extent required by law, the County will undertake, pursuant to the Continuing Disclosure Certificate and the other County Documents, to provide annual reports and notices of certain enumerated events. A description of this undertaking is set forth in Appendix F to the Preliminary Official Statement and will also be set forth in the Official Statement.
(nl) Any certificate signed by any officer The County will comply with the defeasance and redemption provisions of the County authorized to execute such certificate Prior Indenture and the security deposit and prepayment provisions of the Prior Lease Agreement in connection with the execution, sale and delivery refinancing of the Prior Certificates.
(m) The County covenants with the Underwriter that the County will cooperate with the Underwriter (at the cost and written directions of the Underwriter), in qualifying the Bonds for offer and delivered 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 County shall not be required to consent to suit or to service of process, or to qualify to do business, in any jurisdiction. The County consents to the use by the Underwriter shall be deemed a representation and warranty of the County Agreements, the Preliminary Official Statement and the Official Statement in the course of its compliance with the securities or Blue Sky laws of the various jurisdictions related to the Underwriter offering and the Authority as to the statements made therein but not sale of the person signing such certificateBonds.
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations, Warranties and Covenants of the County. The County hereby represents, warrants and covenants to agrees with the Underwriter and the Authority that:
(a) The County is a county and political subdivision of the State of California duly (the “State”) organized and existing under and by virtue of the laws of the State.
(b) The County State has full legal right, power, all necessary power and authority to adopt or the County Resolution (defined below), to enter intointo and perform its duties under the Trust Agreement, as the case may beLease Agreement, the Ground Lease, and to carry out this Purchase Contract (the “County Agreements”) and consummate the transactions on its part contemplated County Agreements have been duly authorized, has or will be executed and delivered by the County Documents.
(c) By all necessary official actionand, assuming the County has duly authorized and approved the County Documentsdue authorization, has duly authorized and approved the Preliminary Official Statement and the Official Statement, and has duly authorized and approved the execution and delivery of, and the performance by the County of the obligations on its part contained in, the County Documents and the consummation by it of all other transactions contemplated by the County Documents in connection with the issuance of the Bonds. As of the date hereof, such authorizations and approvals are in full force and effect and have not been amended, modified, or rescinded. When executed and delivered, and assuming due execution and delivery by the other respective parties thereto, if applicable, when executed and delivered by the County Documents will constitute the legally valid and binding obligations of the County enforceable against the County in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws or equitable principles relating to or affecting limiting creditors’ rights generally, generally or by principles of equity involving judicial discretion.
(b) After the exercise Board of judicial discretion and the limitations on legal remedies against municipal corporations in the State. The County has complied, and will at the Closing be in compliance in all material respects with the terms Supervisors of the County Documents(the “Board”) conducted a public meeting, the Board has taken official action by resolution adopted on [November 13], 2018 (the “County Resolution”) adopted by a majority of the members of the Board at a regular meeting duly called, noticed and conducted, at which a quorum was present and acting throughout, authorizing the execution, delivery and due performance of the County Agreements and the execution and delivery of the Official Statement and the taking of any and all such action as may be required on the part of the County to carry out, give effect to and consummate the transactions contemplated hereby.
(dc) To its knowledgethe best knowledge of the County, (i) the County is not in any material respect in breach of of, or default under under, any applicable constitutional provision, law or administrative rule or regulation of any state the State of California or of the United States, States of America material to the conduct of its governmental or any agency or instrumentality of either, financial functions or any applicable judgment or decree, decree or any loan agreement, indenture, bond, certificate, note, resolution, resolution or other agreement or other instrument to which the County is a party or to which the County or any of its properties is otherwise subject which breach or default has or may have a materially adverse effect on the ability of the County to perform its obligations under the County Documentssubject, and (ii) no event has occurred and is continuing which which, with the passage of time or the giving of notice, or both, would constitute such a default or an event of default under any such instrumentof the foregoing; and the adoptionauthorization, execution and delivery of the County Documents, if applicableAgreements and the Certificates, and compliance with the provisions on the County’s part contained thereinhereof and thereof, will not conflict in any material way with or constitute a material breach of or a material default under any constitutional provision, law, administrative rule or regulation, or any judgment, decree, license, permit, loan agreement, indenture, bond, certificate, note, resolution, agreement or other instrument to which the County (or any of its officers in their respective capacities as such) is a party subject or by which it or any of its properties is otherwise subject as of the date hereof and the Closingbound, nor will any such authorization, execution, delivery, adoption delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the property its assets or assets of the County properties or under the terms of any such law, regulation or instrument, instrument except as may be provided by the Certificates or the County DocumentsAgreements.
(d) To the best knowledge of the County, there is no consent, approval, authorization or other order of, or filing with, or certification by, any regulatory entity having jurisdiction over the County required for the execution and delivery of the County Agreements, or the execution and sale of the Certificates or the consummation by the County of the transactions contemplated herein, in the Official Statement or in the County Agreements, which has not been duly obtained or made on or prior to the date hereof.
(e) To its knowledgeBy all necessary official action, all material authorizations, approvals, licenses, permits, consents the County has duly authorized the preparation and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction delivery of the matter that are required for Preliminary Official Statement and the due authorization bypreparation, or which would constitute a condition precedent to or execution and delivery of the absence Official Statement, has duly authorized and approved the execution and delivery of, and the performance of which would materially adversely affect its obligations under, the due performance Certificates and the County Agreements, and the consummation by it of all other transactions contemplated by the County of its obligations in connection with Resolution, the County Documents have been duly obtained orAgreements, when required for future performance, are expected to be obtained, other than such approvals, consents and orders as may be required under the Blue Sky or securities laws of any state in connection with the offering and sale of the Bonds; except as described in or contemplated by the Preliminary Official Statement and the Official Statement, all authorizations, approvals, licenses, permits, consents . When executed and orders of any governmental authority, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance bydelivered by their respective parties, the County Agreements (assuming due authorization, execution and delivery by and enforceability against the other parties thereto) will be in full force and effect and each will constitute legal, valid and binding agreements or obligations of its obligations under the County Documents have been duly obtainedCounty, enforceable in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors rights generally, the application of equitable principles, the exercise of judicial discretion and the limitations on legal remedies against public entities in the State.
(f) The Preliminary Official Statement was Statement, as of its datethe date thereof, and did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the County makes no representation or warranty as to the statements or information contained in or omitted from the Preliminary Official Statement isregarding DTC, [the Certificate Insurer, Insurance Policy, the Reserve Insurer, the Reserve Policy] or in reliance upon and at all times subsequent in conformity with information furnished in writing to the County by or on behalf of the Underwriter through a representative of the Underwriter specifically for inclusion therein.
(g) As of its date and as of the date of the Official Statement up to and including the Closing will beClosing, true and correct in all material respects, and the Preliminary Official Statement and the Official Statement do not and will not contain and up to and including the Closing will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were mademade not misleading; provided, not misleading (except however, that this the County makes no representation does not include information regarding DTC and its book-entry only system, or warranty as to which no view is expressed).
(g) The County will advise the Underwriter promptly of any proposal to amend statements or supplement the Official Statement. The County will advise the Underwriter promptly of the institution of any proceedings known to it by any governmental authority prohibiting information contained in or otherwise affecting the use of omitted from the Official Statement regarding DTC, [the Certificate Insurer, Insurance Policy, the Reserve Insurer, the Reserve Policy] or in connection reliance upon and in conformity with information furnished in writing to the offering, sale County by or distribution on behalf of the BondsUnderwriter through a representative of the Underwriter specifically for inclusion therein.
(h) As of the time of acceptance hereof and the Closingdate hereof, except as disclosed in the Official Statement, there is no action, suit, proceeding, inquiry proceeding or investigation, at law or in equity, investigation before or by any court, governmental authority, public board or body, pending, with service of process upon body pending against the County having been accomplished, or, to the best knowledge of the County, threatened in writing to the Countythreatened, wherein an unfavorable decision, ruling or finding would: (i) in any way questioning affect the corporate creation, organization, existence or powers of the County County, or the titles of the officers of the County to their respective officesits members or officers; (ii) affectingin any way question or affect the validity or enforceability of County Agreements or the Certificates, contesting or seeking (iii) in any way question or affect the transactions contemplated by the County Agreements, the Official Statement, or any other agreement or instrument to prohibit, restrain or enjoin which the issuance or delivery of any County is a party relating to the Certificates.
(i) The proceeds from the sale to the Underwriter of the BondsCertificates will be applied in the manner and for the purposes specified in Section 1 hereof and the Trust Agreement.
(j) Any certificate signed by any official of the County authorized to do so will be deemed a representation and warranty by the County to the Underwriter as to the statements made therein.
(k) The County agrees to cooperate with the Underwriter in endeavoring to qualify the Certificates for offer and sale under the securities or Blue Sky laws of such jurisdictions of the United States as the Underwriter may reasonably request; provided, however, that the County will not be required to consent to service of process in any such jurisdiction or to qualify as a foreign corporation in connection with any such qualification in any jurisdiction and that the payment or collection Underwriter shall be solely responsible for the cost of Rental Payments such qualification.
(l) The County has complied with the Internal Revenue Code of 1986, as amended, with respect to the Lease or of any amounts pledged or to be pledged to pay Certificates.
(m) The financial statements of, and other financial information regarding, the principal of County contained in the Official Statement fairly present the financial position and interest on the Bonds, or in any way contesting or affecting the validity results of the Bonds, or operations of the County Documents or the consummation as of the transactions contemplated thereby or herebydates and for the periods therein set forth, or contesting the exclusion of the interest on the Bonds from taxationand, or contesting the powers of the Authority to issue the Bonds; (iii) which would be likely to result in any material adverse change relating to the business, operations or financial condition best of the County; and’s knowledge, (i) the audited financial statements have been prepared in accordance with generally accepted accounting principles consistently applied, and (ii) the other financial information has been determined on a basis substantially consistent with that of the County’s audited financial statements included in the Official Statement.
(ivn) contesting the completeness or accuracy of Except as described in the Preliminary Official Statement or and will be described in the Official Statement Statement, within the last five years the County has not failed to comply in all material respects with any prior continuing disclosure obligations entered into pursuant to Rule 15c2-12.
(o) Between the date of this Purchase Contract and the date of Closing, the County will not, without the prior written consent of the Underwriter, and except as disclosed in the Official Statement, offer or issue any certificates, notes or other obligations for borrowed money, or incur any material liabilities, direct or contingent, secured by or payable from the County’s general fund.
(p) Except as previously disclosed to the Underwriter, the County is not in default, and at no time has the County defaulted in any material respect, on any bond, note or other obligation for borrowed money or any supplement agreement under which any such obligation is or amendment thereto was outstanding.
(q) If between the date of this Purchase Contract and the date which is 25 days following the End of the Underwriting Period (as defined below), any event will occur which might or asserting that the Preliminary Official Statement or would cause the Official Statement contained Statement, as then supplemented or amended, to 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 County will immediately notify the Underwriter, or the Underwriter may notify the County, and if, in the opinion of the Underwriter and the County, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the County will at its expense supplement or amend the Official Statement in a form and in a manner approved by the Underwriter. “End of the Underwriting Period” will mean the later of:
(i) To the County’s knowledgeClosing Date, there is no basis for any action, suit, proceeding, inquiry, or investigation of the nature described in clauses (i) through (iv) of paragraph 7(h).
(j) Until the date that is twenty-five (25) days after the “end of the underwriting period” (as hereinafter defined), if any event shall occur of which the County is aware that would cause the Official Statement to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements in the Official Statement, in light of the circumstances under which they were made, not misleading (except that this representation does not include information regarding DTC and its book entry only system, as to which no view is expressed), the County shall forthwith notify the Underwriter of any such event of which it has knowledge and shall cooperate fully in furnishing any information available to it for any supplement to the Official Statement necessary, in the Underwriter’s reasonable opinion, so that the statements therein as so supplemented will not be misleading in light of the circumstances existing at such time and the County shall promptly furnish to the Underwriter a reasonable number of copies of such supplement. As used herein, the term “end of the underwriting period” means the later of such time as: (i) the Authority delivers the Bonds to the Underwriter; or (ii) the date the Underwriter does not retain, directly or as a member of an underwriting syndicate, retain an unsold balance of the Bonds Certificates for sale to the public. Unless , provided that unless the Underwriter gives notice to notifies the contrary, the “end of the underwriting period” shall be deemed to be the Closing Date. Any notice delivered pursuant to this provision shall be written notice delivered by the Underwriter at County on or prior to the Closing Date that it directly retains an unsold balance of the Bonds and shall specify a date (other than Certificates for sale to the public, the End of the Underwriting Period will be deemed to have occurred on the Closing Date) to be deemed the “end of the underwriting period.”
(k) Based on a review of its prior undertakings with respect to the Rule, and except as disclosed in the Preliminary Official Statement and the Official Statement, the County has not within the last five years failed to comply in any material respect with any continuing disclosure undertakings with regard to Rule 15c2-12 or to provide annual reports or notices of enumerated events specified in such rule.
(l) The financial statements relating to the receipts, expenditures and cash balances of the County as of June 30, 2015 attached as Appendix B to the Official Statement fairly represent the receipts, expenditures and cash balances of the County. Except as disclosed in the Official Statement or otherwise disclosed in writing to the Underwriter, as of the date hereof and the Closing, there has not been any materially adverse change in the financial condition of the County or in its operations since June 30, 2015, nor any occurrence or circumstance, or combination thereof, that is reasonably expected to result in any such materially adverse change.
(m) To the extent required by law, the County will undertake, pursuant to the Continuing Disclosure Certificate and the other County Documents, to provide annual reports and notices of certain enumerated events. A description of this undertaking is set forth in Appendix F to the Preliminary Official Statement and will also be set forth in the Official Statement.
(n) Any certificate signed by any officer of the County authorized to execute such certificate in connection with the execution, sale and delivery of the Bonds and delivered to the Underwriter shall be deemed a representation and warranty of the County to the Underwriter and the Authority as to the statements made therein but not of the person signing such certificate.
Appears in 1 contract
Samples: Certificate Purchase Agreement
Representations, Warranties and Covenants of the County. The County represents, warrants and covenants represents to the Underwriter Corporation and to the Authority Trustee for the benefit of the Owners (all such representations and warranties being continuing) that:
(a) The County is a duly organized and validly existing political subdivision of the State and has all powers necessary to enter into the transactions contemplated by this Contract and the Deed of California duly organized Trust and existing under and by virtue of the laws of the State.to carry out its obligations hereunder;
(b) The County has full legal rightagrees that during the term of this Contract it will take no action that would adversely affect its existence as a political subdivision in good standing in the State, power, and authority to adopt or enter into, as the case may be, and to carry out and consummate the transactions on its part contemplated by cause the County Documents.to be consolidated with or merge into another political subdivision of the State or permit one or more other political subdivisions of the State to consolidate with or merge into it, unless the political subdivision of the State created thereby expressly assumes in writing the County’s obligations hereunder;
(c) By all necessary official actionThis Contract, the Deed of Trust and all other documents relating hereto and the performance of the County’s obligations hereunder and thereunder have been or will be duly and validly authorized, executed and delivered by the County has duly authorized and approved under all laws, regulations and procedures applicable to the County Documentsand, has duly authorized and approved the Preliminary Official Statement and the Official Statementassuming due authorization, and has duly authorized and approved the execution and delivery of, and the performance by the County of the obligations on its part contained in, the County Documents and the consummation by it of all other transactions contemplated by the County Documents in connection with the issuance of the Bonds. As of the date hereof, such authorizations and approvals are in full force and effect and have not been amended, modified, or rescinded. When executed and delivered, and assuming due execution and delivery thereof by the other parties thereto, if applicableconstitute valid, the County Documents will constitute the legally valid legal and binding obligations of the County County, enforceable in accordance with their respective terms, except as enforcement may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or similar insolvency and other laws or equitable principles relating to or affecting the enforcement of creditors’ rights generally, or by the exercise generally and such principles of judicial discretion and the limitations on legal remedies against municipal corporations in the State. The County has complied, and will at the Closing be in compliance in all material respects with the terms of the County Documents.equity as a court having jurisdiction may impose;
(d) To its No approval or consent is required from any governmental authority with respect to the entering into or performance by the County of this Contract, the Deed of Trust and all other documents related thereto and the transactions contemplated hereby and thereby or if such approvals are required, they will be duly obtained;
(e) Except as disclosed by the County in writing to the Corporation and the Trustee, there is no action, suit, proceeding or investigation at law or in equity before or by any court, public board or body pending or, to the best of the County’s knowledge, (i) threatened, against or affecting the County is challenging the validity or enforceability of this Contract, the Deed of Trust or any other documents relating hereto and the performance of the County’s obligations hereunder and thereunder, and compliance with the provisions hereof or thereof, under the circumstances contemplated hereby or thereby, does not and will not in any material respect in conflict with, constitute on the part of the County a breach of or default under under, or result in the creation of a lien or other encumbrance on any applicable constitutional provision, law or administrative regulation of any state or property of the United States, County (except as contemplated herein or therein) pursuant to any agency or instrumentality of either, or any applicable judgment or decree, or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the County is a party or is otherwise subject which breach or default has or may have a materially adverse effect on the ability of the County to perform its obligations under the County Documents, and (ii) no event has occurred and is continuing which with the passage of time or the giving of noticeparty, or both, would constitute such a default or event of default under any such instrument; and the adoption, execution and delivery of the County Documents, if applicable, and compliance with the provisions on the County’s part contained therein, will not conflict in any material way with or constitute a material breach of or a material default under any constitutional provision, existing law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement court order or other instrument consent decree to which the County is a party or is otherwise subject as of the date hereof and the Closing, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the County or under the terms of any such law, regulation or instrument, except as may be provided by the County Documents.
(e) To its knowledge, all material authorizations, approvals, licenses, permits, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction of the matter that are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by the County of its obligations in connection with the County Documents have been duly obtained or, when required for future performance, are expected to be obtained, other than such approvals, consents and orders as may be required under the Blue Sky or securities laws of any state in connection with the offering and sale of the Bonds; except as described in or contemplated by the Preliminary Official Statement, all authorizations, approvals, licenses, permits, consents and orders of any governmental authority, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the County of its obligations under the County Documents have been duly obtained.subject;
(f) The Preliminary Official Statement was as Neither he execution and delivery of its date, and the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and the Preliminary Official Statement and the Official Statement do not and will not contain and up to and including the Closing will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (except that this representation does not include information regarding DTC and its book-entry only system, as to which no view is expressed).
(g) The County will advise the Underwriter promptly of any proposal to amend or supplement the Official Statement. The County 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.
(h) As of the time of acceptance hereof and the Closing, except as disclosed in the Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental authority, public board or body, pending, with service of process upon the County having been accomplished, or, to the knowledge of the County, threatened in writing to the County: (i) in any way questioning the corporate existence of the County Contract or the titles Deed of the officers of the County to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance or delivery of any of the Bonds, or the payment or collection of Rental Payments with respect to the Lease or of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds, or the County Documents Trust or the consummation of the transactions contemplated thereby hereby or herebythereby, nor the fulfillment of or compliance with the terms and conditions hereof or thereof conflicts with or results in a breach of the terms, conditions, or contesting provisions of any restriction or any agreement or instrument to which the exclusion County is now a party or by which the County is bound or constitutes a default under any of the interest on foregoing, nor conflicts with or results in a violation of any provision of applicable law or regulation governing the Bonds from taxationCounty and no representation, covenant and warranty herein is false, misleading or contesting the powers of the Authority to issue the Bonds; (iii) which would be likely to result erroneous in any material adverse change respect;
(g) The County vested with fee simple title to the Mortgaged Property free and clear of any liens or encumbrances other than the lien created by the Deed of Trust and the other liens permitted hereby and thereby;
(h) The resolutions relating to the businessperformance by the County of this Contract, operations the Deed of Trust and the transactions contemplated hereby and thereby, have been duly adopted, are in full force and effect, and have not been in any respect modified, revoked or rescinded;
(i) The Project is essential to the proper, efficient and economical operation of the County and the delivery of its services, and the Project provides an essential use and permits the County to carry out public functions that it is authorized by law to perform;
(j) The County reasonably believes funds will be available to satisfy all of its obligations hereunder;
(k) The County shall (1) cause its Budget Officer, as statutorily defined, to include the Installment Payments and the reasonably estimated Additional Payments coming due in each Fiscal Year in the corresponding annual budget request, (2) require that the deletion of such funds from the County’s final budget or any amended budget be made only pursuant to an express resolution of the Board which explains the reason for such action and (3) deliver notice to the Trustee, S&P, Xxxxx’x and the LGC within five days after the adoption by the Board of the resolution described in clause (2) above. Nothing contained in this paragraph (k) obligates the County to appropriate money contained in the proposed budget for the payment of Installment Payments and reasonably estimated Additional Payments coming due under this Contract;
(l) Money appropriated by the County to make Installment Payments in any Fiscal Year shall be used for no other purpose;
(m) The County agrees, in accordance with Rule 15c2-12 (the “Rule”) promulgated by the Securities and Exchange Commission (the “SEC”), to provide to the Municipal Securities Rulemaking Board (the “MSRB”):
(1) by not later than seven months after the end of each Fiscal Year, beginning with the Fiscal Year ending June 30, 2013, the audited financial condition statements of the County for the preceding Fiscal Year, if available, prepared in accordance with Section 159-34 of the General Statutes of North Carolina, as it may be amended from time to time, or any successor statute, or if such audited financial statements are not then available, unaudited financial statements of the County for such Fiscal Year to be replaced subsequently by audited financial statements of the County to be delivered within 15 days after such audited financial statements become available for distribution;
(2) by not later than seven months after the end of each Fiscal Year, beginning with the Fiscal Year ending June 30, 2013, (a) the financial and statistical data as of a date not earlier than the end of the preceding Fiscal Year for the type of information included under the captions “THE COUNTY - Debt Information” and “- Tax Information” (including subheadings thereunder) in Appendix A to the Official Statement dated January 8, 2013 with respect to the 2013 Bonds (excluding, in each case, any information on overlapping or underlying units) and (b) the combined budget of the County for the current Fiscal Year, to the extent such items are not included in the audited financial statements referred to in paragraph (1) above;
(3) in a timely manner not in excess of 10 Business Days after the occurrence of the event, notice of any of the following events with respect to the 2013 Bonds:
(A) principal and interest payment delinquencies;
(B) non-payment related defaults, if material;
(C) unscheduled draws on the debt service reserves reflecting financial difficulties;
(D) unscheduled draws on any credit enhancements reflecting financial difficulties;
(E) substitution of any credit or liquidity providers, or their failure to perform;
(F) adverse tax opinions, the issuance by the Internal Revenue Service of proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701-TEB) or other material notices or determinations with respect to the tax status of the 2013 Bonds or other material events affecting the tax status of the 2013 Bonds;
(G) modification of the rights of the Beneficial Owners of the 2013 Bonds, if material;
(H) call of any of the 2013 Bonds, if material, and tender offers;
(I) defeasance of any of the 2013 Bonds;
(J) release, substitution or sale of any property securing repayment of the 2013 Bonds, if material;
(K) rating changes;
(L) bankruptcy, insolvency, receivership or similar event of the County;
(M) the consummation of a merger, consolidation, or acquisition involving the County or the sale of all or substantially all of the assets of the obligated person, other than in the ordinary course of business, the entry into a definitive agreement to undertake such an action or the termination of a definitive agreement relating to such actions, other than pursuant to its terms, if material;
(N) appointment of a successor or additional trustee or the change of name of a trustee, if material; and
(iv4) contesting the completeness or accuracy in a timely manner, notice of a failure of the Preliminary Official Statement County to provide required annual financial information described in (1) or (2) above on or before the Official Statement or any supplement or amendment thereto or asserting date specified. The County agrees that its undertaking under this paragraph is intended to be for the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in the light benefit of the circumstances under which they were madeOwners and the beneficial owners of the 2013 Bonds and is enforceable by the Trustee or by any of them, not misleading.
(i) To including an action for specific performance of the County’s knowledgeobligations under this paragraph, there is no basis for any action, suit, proceeding, inquiry, or investigation but a failure to comply will not be an Event of Default under Section 12.1 of this Contract and will not result in acceleration of the nature described principal component of Installment Payments. An action must be instituted, had and maintained in clauses (i) through (iv) the manner provided in this paragraph for the benefit of paragraph 7(h).all of the Owners and beneficial owners of the 2013 Bonds. The County may modify from time to time, consistent with the Rule, the information provided or the format of the presentation of such information, to the extent necessary or appropriate in the judgment of the County, but:
(j1) Until any such modification may only be made in connection with a change in circumstances that arises from a change in legal requirements, change in law or change in the identity, nature or status of the County;
(2) the information to be provided, as modified, would have complied with the requirements of the Rule as of the date that is twenty-five (25) days after the “end of the underwriting period” (as hereinafter defined), if any event shall occur of which the County is aware that would cause the Official Statement to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements in the Official Statement, in light after taking into account any amendments or interpretations of the circumstances under which they were made, not misleading Rule as well as any changes in circumstances;
(except that this representation 3) any such modification does not include information regarding DTC and its book entry only systemmaterially impair the interest of the Owners or the beneficial owners, as determined by nationally recognized bond counsel or by the approving vote of the Owners of a majority in principal amount of the 2013 Bonds pursuant to which no view is expressed)Section 9.5 of the Indenture as may be amended from time to time. Any annual financial information containing modified operating data or financial information will explain, in narrative form, the County shall forthwith notify reasons for the Underwriter modification and the impact of any such event the change in the type of which it has knowledge and shall cooperate fully in furnishing any operating data or financial information available to it for any supplement being provided. All documents provided to the Official Statement necessaryMSRB as described above are to be provided in an electronic format as prescribed by the MSRB and accompanied by identifying information as prescribed by the MSRB. The County may discharge its undertaking described above by transmitting those documents or notices in a manner subsequently required by the U.S. Securities and Exchange Commission in lieu of the manner described above. The provisions of this paragraph terminate on payment, or provision having been made for payment in a manner consistent with the Rule, in the Underwriter’s reasonable opinion, so that the statements therein as so supplemented will not be misleading in light full of the circumstances existing at such time principal of and the County shall promptly furnish to the Underwriter a reasonable number of copies of such supplement. As used herein, the term “end of the underwriting period” means the later of such time as: (i) the Authority delivers the Bonds to the Underwriter; or (ii) the Underwriter does not retain, directly or as a member of an underwriting syndicate, an unsold balance of the Bonds for sale to the public. Unless the Underwriter gives notice to the contrary, the “end of the underwriting period” shall be deemed to be the Closing Date. Any notice delivered pursuant to this provision shall be written notice delivered by the Underwriter at or prior to the Closing Date of the Bonds and shall specify a date (other than the Closing Date) to be deemed the “end of the underwriting period.”
(k) Based on a review of its prior undertakings interest with respect to the Rule, and except as disclosed in the Preliminary Official Statement and the Official Statement, the County has not within the last five years failed to comply in any material respect with any continuing disclosure undertakings with regard to Rule 15c2-12 or to provide annual reports or notices of enumerated events specified in such rule2013 Bonds.
(l) The financial statements relating to the receipts, expenditures and cash balances of the County as of June 30, 2015 attached as Appendix B to the Official Statement fairly represent the receipts, expenditures and cash balances of the County. Except as disclosed in the Official Statement or otherwise disclosed in writing to the Underwriter, as of the date hereof and the Closing, there has not been any materially adverse change in the financial condition of the County or in its operations since June 30, 2015, nor any occurrence or circumstance, or combination thereof, that is reasonably expected to result in any such materially adverse change.
(m) To the extent required by law, the County will undertake, pursuant to the Continuing Disclosure Certificate and the other County Documents, to provide annual reports and notices of certain enumerated events. A description of this undertaking is set forth in Appendix F to the Preliminary Official Statement and will also be set forth in the Official Statement.
(n) Any certificate signed by any officer of the County authorized to execute such certificate in connection with the execution, sale and delivery of the Bonds and delivered to the Underwriter shall be deemed a representation and warranty of the County to the Underwriter and the Authority as to the statements made therein but not of the person signing such certificate.
Appears in 1 contract
Samples: Installment Financing Contract
Representations, Warranties and Covenants of the County. The County hereby represents, warrants and covenants to agrees with the Underwriter and the Authority that:
(a) The County is a county and political subdivision of the State of California duly (the “State”) organized and existing under and by virtue of the laws of the StateState has all necessary power and authority to adopt the County Resolution (defined below), to enter into and perform its duties under the Trust Agreement, the Assignment Agreement, the Lease Agreement, the Ground Lease, and this Purchase Contract (the “County Agreements”).
(b) The After the Board of Supervisors of the County (the “Board”) conducted a public hearing, the Board has full legal righttaken official action by resolution adopted on [November 13], power2018 (the “County Resolution”) adopted by a majority of the members of the Board at a regular meeting duly called, noticed and authority to adopt or enter intoconducted, at which a quorum was present and acting throughout, authorizing the execution, delivery and due performance of the County Agreements and the execution and delivery of the Official Statement and the taking of any and all such action as may be required on the case may be, and part of the County to carry out out, give effect to and consummate the transactions on its part contemplated by the County Documentshereby.
(c) By all necessary official action, the County has duly authorized the preparation and approved the County Documents, has duly authorized and approved delivery of the Preliminary Official Statement and the preparation, execution and delivery of the Official Statement, and has duly authorized and approved the execution and delivery of, and the performance by of its obligations under, the Certificates and the County of the obligations on its part contained inAgreements, the County Documents and the consummation by it of all other transactions contemplated by the County Documents in connection with Resolution, the issuance of County Agreements, the BondsPreliminary Official Statement and the Official Statement. As of When executed and delivered by their respective parties, the date hereofCounty Agreements (assuming due authorization, such authorizations execution and approvals are delivery by and enforceability against the other parties thereto) will be in full force and effect and have not been amended, modified, or rescinded. When executed and delivered, and assuming due execution and delivery by the other parties thereto, if applicable, the County Documents each will constitute the legally legal, valid and binding agreements or obligations of the County County, enforceable in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ limiting creditors rights generally, or by the application of equitable principles, the exercise of judicial discretion and the limitations on legal remedies against municipal corporations public entities in the State. The County has complied, and will at the Closing be in compliance in all material respects with the terms of the County Documents.
(d) To its knowledgeThe statements and information contained in the Official Statement (other than CUSIP numbers, (i) the County 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, bond, note, resolution, agreement or other instrument to which the County is a party or is otherwise subject which breach or default has or may have a materially adverse effect on the ability of the County to perform its obligations statements under the County Documents, headings “TAX MATTERS” and (ii) no event has occurred “APPENDIX B,” information relating to DTC 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; its book-entry only system and the adoption, execution and delivery of the County Documents, if applicable, and compliance with the provisions on the County’s part contained therein, 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, bond, note, resolution, agreement or other instrument to which the County is a party or is otherwise subject as of the date hereof and the Closing, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the County or under the terms of any such law, regulation or instrument, except as may be information provided by the County Documents.
(eUnderwriter as to which no view is expressed) To its knowledge, all material authorizations, approvals, licenses, permits, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction of the matter that are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by the County of its obligations in connection with the County Documents have been duly obtained or, when required for future performance, are expected to be obtained, other than such approvals, consents and orders as may be required under the Blue Sky or securities laws of any state in connection with the offering and sale of the Bonds; except as described in or contemplated by the Preliminary Official Statement, all authorizations, approvals, licenses, permits, consents and orders of any governmental authority, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the County of its obligations under the County Documents have been duly obtained.
(f) The Preliminary Official Statement was as of its date, and the Official Statement is, and at all times subsequent to the date of the Official Statement up to and including the Closing will be, true and correct in all material respects, and the Preliminary Official Statement and the Official Statement do not and will not contain and up to and including the Closing will not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the such statements contained therein, in the light of the circumstances under which they were made, not misleading (except that this representation does not include information regarding DTC and its book-entry only system, as to which no view is expressed)misleading.
(g) The County will advise the Underwriter promptly of any proposal to amend or supplement the Official Statement. The County 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.
(he) As of the time of acceptance hereof and the Closingdate hereof, except as disclosed in the Official Statement, there is no action, suit, proceeding, inquiry proceeding or investigation, at law or in equity, investigation before or by any court, governmental authority, public board or body, pending, with service of process upon body pending against the County having been accomplished, or, to the best knowledge of the County, threatened in writing to the Countythreatened, wherein an unfavorable decision, ruling or finding would: (i) in any way questioning affect the corporate creation, organization, existence or powers of the County County, or the titles of the officers of the County to their respective officesits members or officers; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance or delivery of any of the Bonds, or the payment or collection of Rental Payments with respect to the Lease or of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting question or affecting affect the validity or enforceability of County Agreements or the BondsCertificates, or (iii) in any way question or affect the transactions contemplated by the County Documents Agreements, the Official Statement, or any other agreement or instrument to which the County is a party relating to the Certificates.
(f) There is no consent, approval, authorization or other order of, or filing or registration with, or certification by, any regulatory County having jurisdiction over the County required for the execution and delivery of this Purchase Contract or the consummation by the County of the other transactions contemplated thereby or hereby, or contesting by the exclusion of the interest on the Bonds from taxation, or contesting the powers of the Authority to issue the Bonds; (iii) which would be likely to result in any material adverse change relating to the business, operations or financial condition of the County; and
(iv) contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement County Agreements.
(g) Any certificate signed by any official of the County authorized to do so will be deemed a representation and warranty by the County to the Underwriter as to the statements made therein.
(h) Except as previously disclosed to the Underwriter, the County is not in default, and at no time has the County defaulted in any material respect, on any bond, note or other obligation for borrowed money or any supplement agreement under which any such obligation is or amendment thereto was outstanding.
(i) If between the date of this Purchase Contract and the date which is 25 days following the End of the Underwriting Period (as defined below), any event will occur which might or asserting that the Preliminary Official Statement or would cause the Official Statement contained Statement, as then supplemented or amended, to 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.
(i) To , the County will immediately notify the Underwriter, or the Underwriter may notify the County’s knowledge, there is no basis for any actionand if, suit, proceeding, inquiry, or investigation in the opinion of the nature described in clauses (i) through (iv) of paragraph 7(h).
(j) Until Underwriter and the date that is twenty-five (25) days after County, such event requires the “end of the underwriting period” (as hereinafter defined), if any event shall occur of which the County is aware that would cause the Official Statement to contain any untrue statement preparation and publication of a material fact supplement or omit amendment to state a material fact necessary in order to make the statements in the Official Statement, in light of the circumstances under which they were made, not misleading (except that this representation does not include information regarding DTC and its book entry only system, as to which no view is expressed), the County shall forthwith notify the Underwriter of any such event of which it has knowledge and shall cooperate fully in furnishing any information available to it for any will at its expense supplement to or amend the Official Statement necessary, in a form and in a manner approved by the Underwriter’s reasonable opinion, so that the statements therein as so supplemented will not be misleading in light . “End of the circumstances existing at such time and the County shall promptly furnish to the Underwriter a reasonable number of copies of such supplement. As used herein, the term “end of the underwriting periodUnderwriting Period” means will mean the later of such time asof: (i) the Authority delivers the Bonds to the Underwriter; or Closing Date, and (ii) the date the Underwriter does not retain, directly or as a member of an underwriting syndicate, retain an unsold balance of the Bonds Certificates for sale to the public. Unless , provided that unless the Underwriter gives notice to notifies the contrary, the “end of the underwriting period” shall be deemed to be the Closing Date. Any notice delivered pursuant to this provision shall be written notice delivered by the Underwriter at County on or prior to the Closing Date that it directly retains an unsold balance of the Bonds and shall specify a date (other than Certificates for sale to the public, the End of the Underwriting Period will be deemed to have occurred on the Closing Date) to be deemed the “end of the underwriting period.”
(k) Based on a review of its prior undertakings with respect to the Rule, and except as disclosed in the Preliminary Official Statement and the Official Statement, the County has not within the last five years failed to comply in any material respect with any continuing disclosure undertakings with regard to Rule 15c2-12 or to provide annual reports or notices of enumerated events specified in such rule.
(l) The financial statements relating to the receipts, expenditures and cash balances of the County as of June 30, 2015 attached as Appendix B to the Official Statement fairly represent the receipts, expenditures and cash balances of the County. Except as disclosed in the Official Statement or otherwise disclosed in writing to the Underwriter, as of the date hereof and the Closing, there has not been any materially adverse change in the financial condition of the County or in its operations since June 30, 2015, nor any occurrence or circumstance, or combination thereof, that is reasonably expected to result in any such materially adverse change.
(m) To the extent required by law, the County will undertake, pursuant to the Continuing Disclosure Certificate and the other County Documents, to provide annual reports and notices of certain enumerated events. A description of this undertaking is set forth in Appendix F to the Preliminary Official Statement and will also be set forth in the Official Statement.
(n) Any certificate signed by any officer of the County authorized to execute such certificate in connection with the execution, sale and delivery of the Bonds and delivered to the Underwriter shall be deemed a representation and warranty of the County to the Underwriter and the Authority as to the statements made therein but not of the person signing such certificate.
Appears in 1 contract
Samples: Certificate Purchase Agreement
