HomeMy WebLinkAbout2009-094
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(IMPORTANT NOTE: TRAN NOT ISSUED PER FINANCE)
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CITY OF SAN BERNARDINO
LOCAL AGENCY RESOLUTION
NUMBER 2009-94
RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
WHEREAS, local agencies are authorized by Section 53850 to 53858, both
inclusive, of the Government Code of the State of California (the "Act") (being Article 7,6,
Chapter 4, Part I, Division 2, Title 5 of the Government Code) to borrow money by the
issuance oftemporary notes;
WHEREAS, the legislative body (the "Legislative Body") of the local agency
specified in Section 21 hereof (the "Local Agency") has determined that a sum (the "Principal
Amount"), not to exceed the Maximum Amount of Borrowing specified in Section 21 hereof,
which Principal Amount is to be confirmed and set in the Pricing Confirmation (as defined in
Section 4 hereof), is needed for the requirements of the Local Agency, to satisfy obligations of
the Local Agency, and that it is necessary that said Principal Amount be borrowed for such
purpose at this time by the issuance of a note or notes therefore in anticipation of the receipt of
taxes, income, revenue, cash receipts and other moneys to be received by the Local Agency for
the general fund of the Local Agency attributable to its fiscal year ending June 30, 2010
("Repayment Fiscal Year");
WHEREAS, the Local Agency hereby determines to borrow, for the purposes
set forth above, the Principal Amount by the issuance ofthe Note, as hereinafter defined;
WHEREAS, it appears, and this Legislative Body hereby finds and determines,
that the Principal Amount, when added to the interest payable thereon, does not exceed eighty-
five percent (85%) of the estimated amount of the uncollected taxes, income, revenue
(including, but not limited to, revenue from the state and federal governments), cash receipts
and other moneys of the Local Agency attributable to the Repayment Fiscal Year, and available
for the payment of the principal ofthe Note and the interest thereon;
WHEREAS, no money has heretofore been borrowed by or on behalf of the
Local Agency through the issuance of tax and revenue anticipation notes or temporary notes in
anticipation of the receipt of, or payable from or secured by, taxes, income, revenue, cash
receipts or other moneys for the Repayment Fiscal Year;
WHEREAS, pursuant to Section 53856 of the Act, certain moneys which will
be received by the Local Agency during and attributable to the Repayment Fiscal Year can be
pledged for the payment of the principal of the Note and the interest thereon (as hereinafter
provided);
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
WHEREAS, the Local Agency has determined that it is in the best interests of
the Local Agency to participate in the California Communities Cash Flow Financing Program
(the "Program"), whereby participating local agencies (collectively, the "Issuers") will
simultaneously issue tax and revenue anticipation notes;
WHEREAS, the Local Agency desires to have its Note marketed together with
some or all of the notes issued by the Issuers participating in the Program;
WHEREAS, the California Statewide Communities Development Authority
(the "Authority") has sponsored the Program and, on behalf of the Issuers, has engaged the
undelWriter appointed in Section 20 hereof (the "UndelWriter"), for the purpose of structuring
one or more pools of notes or series of note participations (referred to herein as the "Note
Participations", the "Series" and/or the "Series of Note Participations") distinguished by
whether and what type( s) of Credit Instrument (as hereinafter defined) secures notes that are
part of each Series, by the principal amounts of the notes assigned to the Series, by whether
interest on the Series of Note Participations is a fixed rate of interest or a variable rate of
interest swapped to a fixed rate, by whether interest on the Series of Note Participations is
includable in gross income for federal income tax purposes, or by other factors, all of which the
Local Agency hereby authorizes the UndelWriter to determine;
WHEREAS, the Program requires the Issuers participating in any particular
Series to deposit their tax and revenue anticipation notes with a trustee, pursuant to a trust
agreement (the "Trust Agreement") among such Issuers, the Local Agency, the Authority and
Wells Fargo Bank, National Association, as trustee (the "Trustee");
WHEREAS, the Program requires the Trustee, pursuant to the Trust
Agreement, to execute and deliver the Note Participations evidencing and representing
proportionate, undivided interests in the payments of principal of and interest on the notes that
are part of such Series;
WHEREAS, the Local Agency desires to have the Trustee execute and deliver a
Series of Note Participations which evidence and represent interests of the Owners, as defined
in the Trust Agreement, thereof in the Note and the Notes issued by other Issuers in such
Series;
WHEREAS, as additional security for the Owners of the Note Participations, all
or a portion of the payments by all of the Issuers of their respective notes mayor may not be
secured either by an irrevocable letter (or letters) of credit or policy (or policies) of insurance or
other credit instrument (or instruments) (collectively, the "Credit Instrument") issued by the
credit provider or credit providers designated in the Trust Agreement, as finally executed
(collectively, the "Credit Provider"), which may be issued pursuant to a credit agreement or
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
agreements or commitment letter or letters designated in the Trust Agreement (collectively, the
"Credit Agreement") between the Issuers and the respective Credit Provider;
WHEREAS, the net proceeds of the Note may be invested by the Local Agency
in Permitted Investments (as defined in the Trust Agreement) or in any other investment
permitted by the laws of the State of California, as now in effect and as hereafter amended,
modified or supplemented from time to time;
WHEREAS, the Program requires that each participating Issuer approve the
Trust Agreement and the alternative Credit Instruments, if any, in substantially the forms
presented to the Legislative Body, or, in the case of the Credit Instruments, if any, if not
presented, in a form which complies with such requirements and standards as may be
determined by the Legislative Body, with the final form and type of Credit Instrument and
corresponding Credit Agreement, if any, determined upon execution of the Pricing
Confirmation by the Authorized Representative;
WHEREAS, pursuant to the Program each partIcIpating Issuer will be
responsible for its share of (a) the fees of the Trustee and the costs of issuing the applicable
Series of Note Participations, and (b), if applicable, the fees of the Credit Provider, the Issuer's
allocable share of all Predefault Obligations and the Issuer's Reimbursement Obligations, if
any (each as defined in the Trust Agreement);
WHEREAS, pursuant to the Program, the Note and the Notes issued by other
Issuers participating in the same Series (all as evidenced and represented by a Series of Note
Participations) will be offered for sale through negotiation with the Underwriter pursuant to the
terms and provisions of a purchase agreement, which shall be in substantially the same form as
the purchase agreement presented to this meeting (the "Purchase Agreement");
WHEREAS, the Trust Agreement provides, among other things, that for the
benefit of Owners of Note Participations and the Credit Provider, if any, the Local Agency
shall provide notices of the occurrence of certain enumerated events, if deemed by the Local
Agency to be material.
WHEREAS, the Local Agency has determined that it may be desirable to
provide for the issuance of an additional parity note (the "Parity Note") during the Repayment
Fiscal Year, the principal and interest on which are secured by Pledged Revenues, hereinafter
defined, on a parity with the Note.
WHEREAS, the Local Agency has determined that, in order to reduce interest
costs, it may be desirable to enter into one or more interest rate swaps; and
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
WHEREAS, it is necessary to engage the services of certain professionals to
assist the Local Agency in its participation in the Program;
NOW, THEREFORE, this Legislative Body hereby finds, determines, declares
and resolves as follows:
Section 1. Recitals, All the above recitals are true and correct.
Section 2, Authorization of Issuance, This Legislative Body hereby
determines to borrow solely for the purpose of anticipating taxes, income, revenue, cash
receipts and other moneys to be received by the Local Agency for the general fund of the Local
Agency attributable to the Repayment Fiscal Year, by the issuance of a note or notes, pursuant
to the provisions of the Act, designated the Local Agency's "2009 Tax and Revenue
Anticipation Note," with an appropriate series designation if more than one note is issued
(collectively, the "Note"), to be issued in the form of a fully registered note or notes in the
Principal Amount thereof, to be dated the date of its delivery to the initial purchaser thereof, to
mature (without option of prior redemption) not more than 13 months thereafter on a date
indicated on the face thereof and determined in the Pricing Confirmation (the "Maturity Date"),
and to bear interest, payable on its Maturity Date (and if the Maturity Date is more than 12
months from the date of issuance, payable on the interim interest payment date set forth in the
Pricing Confirmation) and computed upon the basis of a 360-day year consisting of twelve
30-day months, or a 365- or 366-day year, as the case may be, and actual days elapsed, at a rate
or rates, if more than one Note is issued, not to exceed 12% per annum as determined in the
Pricing Confirmation and indicated on the face of the Note (the "Note Rate"), If a Credit
Instrument secures in whole or in part the Note or the Note as evidenced by the Series of Note
Participations and all principal of and interest on the Note is not paid in full at maturity or if
payment of principal and/or interest on the Note is paid (in whole or in part) by a draw under,
payment by or claim upon a Credit Instrument which draw or claim is not fully reimbursed on
such date, such Note shall become a Defaulted Note (as defined in the Trust Agreement), and
the unpaid portion thereof (including the interest component, if applicable) thereof (or the
portion (including the interest component, if applicable) thereof with respect to which a Credit
Instrument applies for which reimbursement on a draw, payment or claim has not been fully
made) shall be deemed outstanding and shall continue to bear interest thereafter until paid at
the Default Rate (as defined in the Trust Agreement), If the Note as evidenced and represented
by the Series of Note Participations is unsecured in whole or in part and the Note is not fully
paid at maturity, the unpaid portion thereof (or the portion thereof to which no Credit
Instrument applies which is unpaid) shall be deemed outstanding and shall continue to bear
interest thereafter until paid at the Default Rate. In each case set forth in the preceding two
sentences, the obligation of the Local Agency with respect to such Defaulted Note or unpaid
Note shall not be a debt or liability of the Local Agency prohibited by Article XVI, Section 18
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
of the California Constitution, and the Local Agency shall not be liable thereon except to the
extent of any available revenues attributable to the Repayment Fiscal Year, as provided in
Section 8 hereof. The percentage of the Note as evidenced and represented by the Series of
Note Participations to which a Credit Instrument, if any, applies (the "Secured Percentage")
shall be equal to the amount of the Credit Instrument divided by the aggregate amount of
unpaid principal of and interest on notes (or portions thereof) of all Issuers of Notes that are
part of such Series of Note Participations, expressed as a percentage (but not greater than
100%) as of the maturity date, Both the principal of and interest on the Note shall be payable
in lawful money of the United States of America,
The Note shall be issued in conjunction with the note or notes of one or more
other Issuers as part ofthe Program and within the meaning of Section 53853 of the Act,
Anything in this Resolution to the contrary notwithstanding, the Pricing
Confirmation (defined below) may specify that a portion of the authorized Principal Amount of
the Note shall be issued as a taxable Note the interest on which is includable in the gross
income of the holder thereof for federal income tax purposes (a "Taxable Note"), In such
event, the Taxable Note shall be issued with an appropriate series designation and other terms
reflecting such taxability of interest income, including without limitation, a taxable Note Rate
and a taxable Default Rate; the term Note, and other terms as appropriate, shall be deemed to
include or refer to such Taxable Note; and the agreements, covenants and provisions set forth in
this Resolution to be performed by or on behalf of the Local Agency shall be for the equal and
proportionate benefit, security and protection of the holder of any Note without preference,
priority or distinction as to security or otherwise of any Note over another Note.
Section 3, Form of Note, The Note shall be issued in fully registered form
without coupons and shall be substantially in the form and substance set forth in Exhibit A, as
attached hereto and by reference incorporated herein, the blanks in said form to be filled in with
appropriate words and figures as determined at closing.
Section 4. Sale of Note; Delee:ation, The Note Participations (which evidence
an interest in the Note which shall be delivered to the Trustee) shall be sold to the Underwriter
pursuant to the terms and provisions of the Purchase Agreement. The form of the Purchase
Agreement, including the form of the Pricing Confirmation set forth as an exhibit thereto (the
"Pricing Confirmation"), presented to this meeting is hereby approved, The authorized
representatives set forth in Section 21 hereof (each, the "Authorized Representative") are each
hereby authorized and directed to execute and deliver the Purchase Agreement in substantially
said form, with such changes thereto as such Authorized Representative shall approve, such
approval to be conclusively evidenced by his or her execution and delivery thereof; provided,
however, that the Note Rate shall not exceed 12% per annum, and that the Local Agency's pro
rata share of Underwriter' s discount on the Note, when added to the Local Agency's share of
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
the costs of issuance of the Note Participations, shall not exceed 1.0% of the Principal Amount
of the Note and the Principal Amount shall not exceed the Maximum Amount of Borrowing.
Delivery of an executed copy of the Pricing Confirmation by fax or telecopy shall be deemed
effective upon execution and delivery for all purposes,
Section 5. Prol!ram Approval. The Note shall be combined with notes of
other Issuers into a Series as set forth in the Preliminary Official Statement, hereinafter
mentioned, and shall be sold simultaneously with such other notes of that Series secured by the
Credit Instrument (if any) referred to in the Pricing Confirmation, and shall be evidenced and
represented by the Note Participations which shall evidence and represent proportionate,
undivided interests in the Note in the proportion that the face amount of the Note bears to the
total aggregate face amount of the Note and the notes issued by other Issuers which the Series
of Note Participations represent. Such Note Participations may be delivered in book-entry
form,
The forms of Trust Agreement and alternative general types and forms of Credit
Agreements, if any, presented to this meeting are hereby approved, and the Authorized
Representative is hereby authorized and directed to execute and deliver the Trust Agreement
and a Credit Agreement, if applicable, which shall be identified in the Pricing Confirmation, in
substantially one or more of said forms (a substantially final form of Credit Agreement to be
delivered to the Authorized Representative following the execution by the Authorized
Representative of the Pricing Confirmation), with such changes therein as said officer shall
require or approve, such approval of this Legislative Body and such officer to be conclusively
evidenced by the execution of the Trust Agreement and the Credit Agreement, if any, A
description of this undertaking is set forth in the Preliminary Official Statement and will also be
set forth in the Final Official Statement. The Authorized Representative is hereby authorized
and directed to comply with and carry out all of the provisions of the Trust Agreement with
respect to continuing disclosure; provided, however, that failure of the Local Agency to comply
with the Continuing Disclosure Agreement, as defined in Article II of the Trust Agreement,
shall not be considered an Event of Default hereunder. Any Credit Agreement identified in the
Pricing Confirmation but not at this time before the Legislative Body shall include reasonable
and customary terms and provisions relating to fees, increased costs of the Credit Provider
payable by the Local Agency, negative and affirmative covenants of the Local Agency and
events of default. The form of the Preliminary Official Statement presented to this meeting is
hereby approved, and the Underwriter is hereby authorized and directed to cause to be mailed
to prospective bidders the Preliminary Official Statement in connection with the offering and
sale of the Note Participations,
Anyone of the Authorized Representatives of the Local Agency is hereby
authorized and directed to provide the Underwriter with such information relating to the Local
Agency as they shall reasonably request for inclusion in the Preliminary Official Statement and
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
Official Statement. Upon inclusion of the information relating to the Local Agency therein, the
Preliminary Official Statement is, except for certain omissions permitted by Rule 15c2-12 of
the Securities Exchange Act of 1934, as amended (the "Rule"), hereby deemed final within
themeaning of the Rule; provided that no representation is made as to the information contained
in the Preliminary Official Statement relating to the other Issuers or any Credit Provider. If, at
any time prior to the end of the underwriting period, as defined in the Rule, any event occurs as
a result of which the information contained in the Preliminary Official Statement relating to the
Local Agency might include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading, the Local Agency shall promptly notify the Underwriter. The
Authority is hereby authorized and directed, at or after the time of the sale of any Series of
Note Participations, for and in the name and on behalf of the Local Agency, to execute a final
Official Statement in substantially the form of the Preliminary Official Statement presented to
this meeting, with such additions thereto or changes therein as the Authority may approve, such
approval to be conclusively evidenced by the execution and delivery thereof.
The Trustee is authorized and directed to execute Note Participations on behalf
of the Local Agency pursuant to the terms and conditions set forth in the Trust Agreement, in
the aggregate principal amount specified in the Trust Agreement, and substantially in the form
and otherwise containing the provisions set forth in the form of the Note Participations
contained in the Trust Agreement. When so executed, the Note Participations shall be
delivered by the Trustee to the Underwriter upon payment of the purchase price thereof,
pursuant to the terms of the Trust Agreement.
Subject to Section 8 hereof, the Local Agency hereby agrees that if the Note as
evidenced and represented by the Series of Note Participations shall become a Defaulted Note,
the unpaid portion (including the interest component, if applicable) thereof or the portion
(including the interest component, if applicable) to which a Credit Instrument applies for which
full reimbursement on a draw, payment or claim has not been made by the Maturity Date shall
be deemed outstanding and shall not be deemed to be paid until (i) any Credit Provider
providing a Credit Instrument with respect to the Series of Note Participations, and therefore
with respect to all or a portion of the Local Agency's Note, has been reimbursed for any
drawings, payments or claims made under or from the Credit Instrument with respect to the
Note, including interest accrued thereon, as provided therein and in the applicable Credit
Agreement, and (ii) the holders of the Series of the Note Participations which evidence and
represent the Note are paid the full principal amount represented by the unsecured portion of
the Note plus interest accrued thereon (calculated at the Default Rate) to the date of deposit of
such aggregate required amount with the Trustee, For purposes of clause (ii) of the preceding
sentence, holders of the Series of Note Participations will be deemed to have received such
principal amount upon deposit of such moneys with the Trustee,
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
The Local Agency agrees to payor cause to be paid, in addition to the amounts
payable under the Note, any fees or expenses of the Trustee and, to the extent permitted by law,
if the Local Agency's Note as evidenced and represented by the Series of Note Participations
issecured in whole or in part by a Credit Instrument, any Predefault Obligations and
Reimbursement Obligations (to the extent not payable under the Note), (i) arising out of an
"Event of Default" hereunder (or pursuant to Section 7 hereof) or (ii) arising out of any other
event (other than an event arising solely as a result of or otherwise attributable to a default by
any other Issuer), In the case described in (ii) above with respect to Predefault Obligations, the
Local Agency shall owe only the percentage of such fees, expenses and Predefault Obligations
equal to the ratio of the principal amount of its Note over the aggregate principal amounts of
all notes, including the Note, of the Series of which the Note is a part, at the time of original
issuance of such Series, Such additional amounts will be paid by the Local Agency within
twenty-five (25) days of receipt by the Local Agency of a bill therefor from the Trustee.
Section 6, No Joint Oblil!ation: Owners' Ril!hts, The Note shall be marketed
and sold simultaneously with the notes of other Issuers and shall be aggregated and combined
with notes of other Issuers participating in the Program into a Series of Note Participations
evidencing and representing an interest in several, and not joint, obligations of each Issuer, The
obligation of the Local Agency to Owners is a several and not a joint obligation and is strictly
limited to the Local Agency's repayment obligation under this Resolution and the Note, as
evidenced and represented by such Series of Note Participations,
Owners of Note Participations, to the extent of their interest in the Note, and the
Credit Provider, if any, shall be treated as owners of the Note and shall be entitled to all the
rights and security thereof in accordance with the Trust Agreement, including the right to
enforce the obligations and covenants contained in this Resolution and the Note. The Local
Agency hereby recognizes the right of the Owners and the Credit Provider, if any, acting
directly or through the Trustee to enforce the obligations and covenants contained in the Note,
this Resolution and the Trust Agreement. The Local Agency shall be directly obligated to each
Owner for the principal and interest payments on the Note evidenced and represented by the
Note Participations without any right of counterclaim or offset arising out of any act or failure
to act on the part of the Trustee.
Section 7. Disposition of Proceeds of Note. The moneys received from the
sale of the Note allocable to the Local Agency's share of the costs of issuance (which shall
include any issuance fees in connection with a Credit Instrument applicable to the Note, if any)
shall be deposited in the Costs of Issuance Fund held and invested by the Trustee under the
Trust Agreement and expended on costs of issuance as provided in the Trust Agreement. The
moneys received from the sale of the Note (net of the Local Agency's share ofthe costs of
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
issuance) shall be deposited in the Local Agency's Proceeds Subaccount within the Proceeds
Fund hereby authorized to be created pursuant to, and held and invested by the Trustee under,
the Trust Agreement for the Local Agency and said moneys may be used and expended by the
Local Agency for any purpose for which it is authorized to expend funds upon requisition from
the Proceeds Subaccount as specified in the Trust Agreement. Amounts in the Proceeds
Subaccount are hereby pledged to the payment ofthe Note,
The Trustee will not create subaccounts within the Proceeds Fund, but will keep
records to account separately for proceeds of the Note Participations allocable to the Local
Agency's Note on deposit in the Proceeds Fund which shall constitute the Local Agency's
Proceeds Subaccount.
Section 8, Source of Pavment. The principal amount of the Note, together
with the interest thereon, shall be payable from taxes, income, revenue (including, but not
limited to, revenue from the state and federal governments), cash receipts and other moneys
which are received or held by the Local Agency for the general fund of the Local Agency and
are attributable to the Repayment Fiscal Year and which are available for payment thereof, As
security for the payment of the principal of and interest on the Note, the Local Agency hereby
pledges all Unrestricted Revenues (as hereinafter provided, the "Pledged Revenues") which are
received or held by the Local Agency for the general fund of the Local Agency and are
attributable to the Repayment Fiscal Year, and the principal of the Note and the interest thereon
shall constitute a first lien and charge thereon and shall be payable from the first moneys
received by the Local Agency from such Pledged Revenues and, to the extent not so paid, shall
be paid from any other taxes, income, revenue, cash receipts and other moneys of the Local
Agency lawfully available therefore (all as provided for in Sections 53856 and 53857 of the
Act), The term "Unrestricted Revenues" shall mean all taxes, income, revenue (including, but
not limited to, revenue from the state and federal governments), cash receipts, and other
moneys, intended as receipts for the general fund of the Local Agency attributable to the
Repayment Fiscal Year and which are generally available for the payment of current expenses
and other obligations of the Local Agency, The holders of the Notes, Owners and Credit
Provider shall have a first lien and charge on such Unrestricted Revenues as herein provided
which are received or held by the Local Agency and are attributable to the Repayment Fiscal
Year,
In order to effect the pledge referenced in the preceding paragraph, the Local
Agency hereby agrees to the establishment and maintenance of a special account of the Local
Agency (the "Payment Account") by the Trustee as the responsible agent to maintain such an
account until the payment of the principal of the Note and the interest thereon, and the Local
Agency further agrees to cause to be deposited in the Payment Account the first amounts
received in the months specified in the Pricing Confirmation as Repayment Months (each
individual month a "Repayment Month" and collectively "Repayment Months") (and any
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
amounts received thereafter attributable to Repayment Fiscal Year) until the amount on deposit
in the Payment Account, is equal in the respective Repayment Months identified in the Pricing
Confirmation to the percentage of the principal and interest due on the Note specified in the
Pricing Confirmation, Any such deposit may take into consideration anticipated investment
earnings on amounts deposited in an Investment Agreement, that is a Permitted Investment, as
defined in the Trust Agreement, through the Maturity Date, Transfers from the Payment
Account shall be made in accordance with the Trust Agreement.
Any Authorized Representative of the Local Agency is hereby authorized to
approve the determination of the Repayment Months and percentages of the principal and
interest due on the Note required to be on deposit in the Payment Account in each Repayment
Month, all as specified in the Pricing Confirmation, by executing and delivering the Pricing
Confirmation, such execution and delivery to be conclusive evidence of approval by this
Legislative Body and such Authorized Representative; provided, however, that the maximum
number of Repayment Months shall be six and the maximum amount of Pledged Revenues
required to be deposited in each Repayment Month shall not exceed fifty percent (50%) of the
aggregate principal and interest due on the Note, In the event on the day in each such
Repayment Month that a deposit to the Payment Account is required to be made, the Local
Agency has not received sufficient unrestricted revenues to permit the deposit into the Payment
Account of the full amount of Pledged Revenues to be deposited in the Payment Account from
said unrestricted revenues in said month, then the amount of any deficiency shall be satisfied
and made up from any other moneys of the Local Agency lawfully available for the payment of
the principal of the Note and the interest thereon, as and when such other moneys are received
or are otherwise legally available,
Any moneys placed in the Payment Account shall be for the benefit of (i) the
owner of the Note and (ii) (to the extent provided in the Trust Agreement) the Credit Provider,
if any, The moneys in the Payment Account shall be applied only for the purposes for which
the Payment Account is created until the principal of the Note and all interest thereon are paid
or until provision has been made for the payment of the principal of the Note at maturity with
interest to maturity (in accordance with the requirements for defeasance of the Note
Participations as set forth in the Trust Agreement) and (to the extent provided in the Trust
Agreement and, if applicable, the Credit Agreement) the payment of all Predefault Obligations
and Reimbursement Obligations owing to the Credit Provider.
The Local Agency hereby directs the Trustee to transfer on the Note Payment
Deposit Date (as defined in the Trust Agreement), any moneys in the Payment Account to the
Note Participation Payment Fund (as defined in the Trust Agreement), In the event that
moneys in the Payment Account are insufficient to pay the principal of and interest on the Note
in full when due, such moneys shall be applied in the following priority: first, to pay interest
on the Note; second, to pay principal of the Note; third, to reimburse the Credit Provider for
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
payment, if any, of interest with respect to the Note; fourth, to reimburse the Credit Provider
for payment, if any, of principal with respect to the Note; and fifth, to pay any Reimbursement
Obligations of the Local Agency and any of the Local Agency's pro rata share of Predefault
Obligations owing to the Credit Provider, Any moneys remaining in or accruing to the
Payment Account after the principal of the Note and the interest thereon and any Predefault
Obligations and Reimbursement Obligations, if applicable, have been paid, or provision for
such payment has been made, shall be transferred to the general fund of the Local Agency,
subject to any other disposition required by the Trust Agreement, or, if applicable, the Credit
Agreement. Nothing herein shall be deemed to relieve the Local Agency from its obligation to
pay its Note in full on the Maturity Date.
Moneys in the Proceeds Subaccount and in the Payment Account shall be
invested by the Trustee pursuant to the Trust Agreement as directed by the Local Agency in
Permitted Investments as described in and under the terms of the Trust Agreement. Any such
investment by the Trustee shall be for the account and risk of the Local Agency, and the Local
Agency shall not be deemed to be relieved of any of its obligations with respect to the Note, the
Predefault Obligations or Reimbursement Obligations, if any, by reason of such investment of
the moneys in its Proceeds Subaccount or the Payment Account.
The Local Agency shall promptly file with the Trustee and the Credit Provider,
if any, such financial reports at the times and in the forms required by the Trust Agreement. At
the written request of the Credit Provider, if any, the Local Agency shall, within ten (10)
Business Days following the receipt of such written request, file such report or reports to
evidence the transfer to and deposit in the Payment Account required by this Section 8 and
provide such additional financial information as may be required by the Credit Provider, if any,
Anything herein to the contrary notwithstanding, the Local Agency may at any
time during the Repayment Fiscal Year issue a Parity Note, in an amount not to exceed
$20,000,000,00, secured by a first lien and charge on Pledged Revenues; provided that (i) such
Parity Note shall have the same Repayment Months as the Note, shall be payable as to principal
and interest in such Repayment Months in amounts corresponding on a pro rata basis to the
schedule of principal and interest payable in such Repayment Months on the Note and the
rating on such Parity Note (or related series of note participations if sold into a pool) shall not
be less than the rating on the Series of Note Participations related to the Note and (ii) the Local
Agency shall have received the written consent of the Credit Provider, if any, to the issuance of
the Parity Note by the Local Agency, In the event that the Local Agency issues a Parity Note,
the Local Agency shall make appropriate deposits into the Payment Account with respect to
such Parity Note, and in such event, the Payment Account shall also be held for the benefit of
the holders of the Parity Note,
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
Section 9, Execution of Note. Anyone of the Authorized Representatives of
the Local Agency or any other officer designated by the Legislative Body shall be authorized to
execute the Note by manual or facsimile signature, and the Secretary or Clerk of the Legislative
Body of the Local Agency or any duly appointed assistant thereto shall be authorized to
countersign the Note by manual or facsimile signature. Said officers of the Local Agency are
hereby authorized to cause the blank spaces of the Note to be filled in as may be appropriate
pursuant to the Pricing Confirmation, Said officers are hereby authorized and directed to cause
the Trustee, as registrar and authenticating agent, to accept delivery of the Note pursuant to the
terms and conditions of the Purchase Agreement and Trust Agreement. In case any officer
whose signature shall appear on any Note shall cease to be such officer before the delivery of
such Note, such signature shall nevertheless be valid and sufficient for all purposes, the same as
if such officer had remained in office until delivery. The Note need not bear the seal of the
Local Agency, if any.
Section 10. Representations and Covenants of the Local Al!encv, The Local
Agency makes the following representations for the benefit of the holder of the note, the
owners of the Note Participations, the Underwriter and the Credit Provider, if any.
(A) The Local Agency is duly organized and existing under and by virtue of
the laws of the State of California and has all necessary power and authority (i) to adopt this
Resolution and perform its obligations thereunder, (ii) to enter into and perform its obligations
under the Purchase Agreement, and (iii) to issue the Note and perform its obligations
thereunder.
(B) Upon the issuance of the Note, the Local Agency shall have taken all
action required to be taken by it to authorize the issuance and delivery of the Note and the
performance of its obligations thereunder, and the Local Agency has full legal right, power and
authority to issue and deliver the Note,
(C) The issuance of the Note, the adoption of the Resolution and the
execution and delivery of the Purchase Agreement, Trust Agreement and Credit Agreement, if
any, and compliance with the provisions hereof and thereof will not conflict with or violate any
law, administrative regulation, court decree, resolution, charter, by-laws or other agreement to
which the Local Agency is subject or by which it is bound,
(D) Except as may be required under blue sky or other securities laws of any
state or Section 3(a)(2) of the Securities Act of 1933, there is no consent, approval,
authorization or other order of, or filing with, or certification by, any regulatory authority
having jurisdiction over the Local Agency required for the issuance and sale of the Note or the
consummation by the Local Agency of the other transactions contemplated by this Resolution,
except those the Local Agency shall obtain to perform prior to or upon the issuance of the Note,
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
(E) The Local Agency has (or will have prior to the issuance of the Note)
duly, regularly and properly adopted a preliminary budget for the Repayment Fiscal Year
setting forth expected revenues and expenditures and has complied with all statutory and
regulatory requirements with respect to the adoption of such budget. The Local Agency hereby
covenants that it shall (i) duly, regularly and properly prepare and adopt its final budget for the
Repayment Fiscal Year, (ii) provide to the Trustee, the Credit Provider, if any, and the
Underwriter, promptly upon adoption, copies of such final budget and of any subsequent
revisions, modifications or amendments thereto and (iii) comply with all applicable laws
pertaining to its budget.
(F) The sum of the principal amount of the Local Agency's Note plus the
interest payable thereon, on the date of its issuance, will not exceed fifty percent (50%) of the
estimated amounts of the Local Agency's uncollected taxes, income, revenue (including, but
not limited to, revenue from the state and federal governments), cash receipts, and other
moneys to be received by the Local Agency for the general fund of the Local Agency
attributable to the Repayment Fiscal Year all of which will be legally available to pay principal
of and interest on the Note,
(G) The Local Agency (i) has not defaulted within the past twenty (20) years,
and is not currently in default, on any debt obligation and (ii), to the best knowledge of the
Local Agency, has never defaulted on any debt obligation,
(H) The Local Agency's most recent audited financial statements present
fairly the financial condition of the Local Agency as of the date thereof and the results of
operation for the period covered thereby. Except as has been disclosed to the Underwriter and
the Credit Provider, if any, there has been no change in the financial condition of the Local
Agency since the date of such audited financial statements that will in the reasonable opinion of
the Local Agency materially impair its ability to perform its obligations under this Resolution ,
and the Note. The Local Agency agrees to furnish to the Underwriter, the Authority, the
Trustee and the Credit Provider, if any, promptly, from time to time, such information
regarding the operations, financial condition and property of the Local Agency as such party
may reasonably request.
(I) There is no action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, arbitrator, governmental or other board, body or official,
pending or, to the best knowledge of the Local Agency, threatened against or affecting the
Local Agency questioning the validity of any proceeding taken or to be taken by the Local
Agency in connection with the Note, the Purchase Agreement, the Trust Agreement, the Credit
Agreement, if any, or this Resolution, or seeking to prohibit, restrain or enjoin the execution,
delivery or performance by the Local Agency of any of the foregoing, or wherein an
unfavorable decision, ruling or finding would have a materially adverse effect on the Local
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
Agency's financial condition or results of operations or on the ability of the Local Agency to
conduct its activities as presently conducted or as proposed or contemplated to be conducted, or
would materially adversely affect the validity or enforceability of, or the authority or ability of
the Local Agency to perform its obligations under, the Note, the Purchase Agreement, the Trust
Agreement, the Credit Agreement, if any, or this Resolution,
(J) Upon issuance of the Note and execution of the Purchase Contract, this
Resolution, the Purchase Contract and the Note will constitute legal, valid and binding
agreements of the Local Agency, enforceable in accordance with their respective terms, except
as such enforceability may be limited by bankruptcy or other laws affecting creditors' rights
generally, the application of equitable principles if equitable remedies are sought, the exercise
of judicial discretion in appropriate cases and the limitations on legal remedies against local
agencies, as applicable, in the State of Cali fomi a,
(K) The Local Agency and its appropriate officials have duly taken, or will
take, all proceedings necessary to be taken by them, if any, for the levy, receipt, collection and
enforcement of the Pledged Revenues in accordance with law for carrying out the provisions of
this Resolution and the Note.
(L) The Local Agency shall not incur any indebtedness secured by a pledge
of its Pledged Revenues unless such pledge is subordinate in all respects to the pledge of
Pledged Revenues hereunder.
(M) So long as the Credit Provider, if any, is not in payment default under the
Credit Instrument, the Local Agency hereby agrees to pay its pro rata share of all Predefault
Obligations and all Reimbursement Obligations attributable to the Local Agency in accordance
with provisions of the Credit Agreement, if any, and/or the Trust Agreement, as applicable,
Prior to the Maturity Date, moneys in the Local Agency's Payment Account and/or Payment
Subaccount shall not be used to make such payments, The Local Agency shall pay such
amounts promptly upon receipt of notice from the Credit Provider that such amounts are due to
it.
(N) So long as any Note Participations executed and delivered in connection
with the Notes are Outstanding, or any Predefault Obligation or Reimbursement Obligation is
outstanding, the Local Agency will not create or suffer to be created any pledge of or lien on
the Note other than the pledge and lien of the Trust Agreement.
(0) The information describing the Local Agency contained in the Official
Statement (excluding the statements and information pertaining to the Credit Provider and
information under the heading "UNDERWRITING" and in the Appendix entitled "BOOK-
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
ENTRY ONLY SYSTEM"), as of the time of delivery thereof to the Underwriter and at all
times subsequent thereto up to and including the Closing, will be true, complete, correct and
final in all material respects and will not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
(P) The information contained in the Credit Questionnaire (including the
Cashflow Worksheet therein) (the "Credit Questionnaire") completed by the Local Agency and
submitted to the Authority and the Underwriter, will be at the time submitted and on the
Closing Date true and accurate,
Section 11. Tax Covenants, The Local Agency will not take any action or fail
to take any action if such action or failure to take such action would adversely affect the
exclusion from gross income of the interest payable on the Note under Section 103 of the
Internal Revenue Code of 1986 (the "Code"), Without limiting the generality of the foregoing,
the Local Agency will not make any use of the proceeds of the Note or any other funds of the
Local Agency which would cause the Note to be an "arbitrage bond" within the meaning of
Section 148 of the Code, a "private activity bond" within the meaning of Section 141(a) of the
Code, or an obligation the interest on which is subject to federal income taxation because it is
"federally guaranteed" as provided in Section 149(b) of the Code, The Local Agency, with
respect to the proceeds of the Note, will comply with all requirements of such sections of the
Code and all regulations of the United States Department of the Treasury issued or applicable
thereunder to the extent that such requirements are, at the time, applicable and in effect.
The Local Agency hereby (i) represents that the aggregate face amount of all
tax-exempt obligations (including any tax-exempt leases, but excluding private activity bonds),
issued and to be issued by the Local Agency during calendar year 2009, including the Note, is
not reasonably expected to exceed $5,000,000; or. in the alternative. (ii) covenants that the
Local Agency will take all legally permissible steps necessary to ensure that all of the gross
proceeds of the Note will be expended no later than the day that is six months after the date of
issuance ofthe Note so as to satisfy the requirements of Section 148(f)(4)(B) of the Code.
Notwithstanding any other provision of this Resolution to the contrary, upon the
Local Agency's failure to observe, or refusal to comply with, the covenants contained in this
Section II, no one other than the holders or former holders of the Note, the Owners or the
Trustee on their behalf shall be entitled to exercise any right or remedy under this Resolution
on the basis of the Local Agency's failure to observe, or refusal to comply with, such
covenants,
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
The covenants contained in this Section 11 shall survive the payment of the
Note,
The provisions of this Section 11 shall not apply to a Taxable Note,
Section 12, Events of Default and Remedies,
If any of the following events occur, it is hereby defined as and declared to be
and to constitute an "Event of Default":
(a) Failure by the Local Agency to make or cause to be made the
transfers and deposits to the Payment Account, or any other payment required to
be paid hereunder, including payment of principal and interest on the Note, on
or before the date on which such transfer, deposit or other payment is due and
payable;
(b) Failure by the Local Agency to observe and perform any
covenant, condition or agreement on its part to be observed or performed under
this Resolution, for a period of fifteen (15) days after written notice, specifying
such failure and requesting that it be remedied, is given to the Local Agency by
the Trustee or the Credit Provider, if applicable, unless the Trustee and the
Credit Provider shall agree in writing to an extension of such time prior to its
expiration;
(c) Any warranty, representation or other statement by or on behalf
of the Local Agency contained in this Resolution or the Purchase Agreement
(including the Pricing Confirmation) or in any requisition or any financial report
delivered by the Local Agency or in any instrument furnished in compliance
with or in reference to this Resolution or the Purchase Agreement or in
connection with the Note, is false or misleading in any material respect;
(d) A petition is filed against the Local Agency under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction, whether now or hereafter in
effect and is not dismissed within 30 days after such filing, but the Trustee shall
have the right to intervene in the proceedings prior to the expiration of such 30
days to protect its and the Owners' interests;
(e) The Local Agency files a petition in voluntary bankruptcy or
seeking relief under any provision of any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law of
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RESOLUTION AUTHORIZING AND APPROVING THE
BORROWING OF FUNDS FOR FISCAL YEAR 2009-2010; THE
ISSUANCE AND SALE OF A 2009-2010 TAX AND REVENUE
ANTICIPATION NOTE THEREFOR AND PARTICIPATION IN
THE CALIFORNIA COMMUNITIES CASH FLOW FINANCING
PROGRAM
any jurisdiction, whether now or hereafter in effect, or consents to the filing of
any petition against it under such law; or
(I) The Local Agency admits insolvency or bankruptcy or is
generally not paying its debts as such debts become due, or becomes insolvent
or bankrupt or makes an assignment for the benefit of creditors, or a custodian
(including without limitation a receiver, liquidator or trustee) of the Local
Agency or any of its property is appointed by court order or takes possession
thereof and such order remains in effect or such possession continues for more
than 30 days, but the Trustee shall have the right to intervene in the proceedings
prior to the expiration of such 30 days to protect its and the Owners' interests;
Whenever any Event of Default referred to in this Section 12 shall have
happened and be continuing, the Trustee shall, in addition to any other remedies provided
herein or by law or under the Trust Agreement, have the right, at its option without any further
demand or notice, to take one or any combination ofthe following remedial steps:
(a) Without declaring the Note to be immediately due and payable,
require the Local Agency to pay to the Trustee, as holder of the Note, an amount
equal to the principal of the Note and interest thereon to maturity, plus all other
amounts due hereunder, and upon notice to the Local Agency the same shall
become immediately due and payable by the Local Agency without further
notice or demand; and
(b) Take whatever other action at law or in equity (except for
acceleration of payment on the Note) which may appear necessary or desirable
to collect the amounts then due and thereafter to become due hereunder or to
enforce any other of its rights hereunder,
Notwithstanding the foregoing, if the Local Agency's Note is secured in whole
or in part by a Credit Instrument or if the Credit Provider is subrogated to rights under the
Local Agency's Note, as long as the Credit Provider is not in default of its payment obligations
under the Credit Instrument, the Credit Provider shall have the right to direct the remedies upon
any Event of Default hereunder, and the Credit Provider's prior consent shall be required to any
remedial action proposed to be taken by the Trustee hereunder.
If the Credit Provider is not reimbursed for any drawing, payment or claim, as
applicable, used to pay principal of and interest on the Note due to a default in payment on the
Note by the Local Agency, or if any principal of or interest on the Note remains unpaid after
the Maturity Date, the Note shall be a Defaulted Note, the unpaid portion (including the interest
component, if applicable) thereof or the portion (including the interest component, if
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
applicable) to which a Credit Instrument applies for which reimbursement on a draw, payment
or claim has not been made shall be deemed outstanding and shall bear interest at the Default
Rate until the Local Agency's obligation on the Defaulted Note is paid in full or payment is
duly provided for, all subject to Section 8 hereof.
Section 13. Trustee. The Trustee is hereby appointed as paying agent, registrar
and authenticating agent for the Note, The Local Agency hereby directs and authorizes the
payment by the Trustee of the interest on and principal of the Note when such become due and
payable, from the Payment Account held by the Trustee in the name of the Local Agency in the
manner set forth herein, The Local Agency hereby covenants to deposit funds in such account
at the time and in the amount specified herein to provide sufficient moneys to pay the principal
of and interest on the Note on the day on which it matures, Payment of the Note shall be in
accordance with the terms of the Note and this Resolution,
The Local Agency hereby agrees to maintain as paying agent, registrar and
authenticating agent of the Note, the Trustee under the Trust Agreement.
Section 14, Annroval of Actions. The aforementioned Authorized
Representatives of the Local Agency are hereby authorized and directed to execute the Note
and cause the Trustee to authenticate and accept delivery of the Note, pursuant to the terms and
conditions of this Resolution and the Trust Agreement. All actions heretofore taken by the
officers and agents of the Local Agency or this Legislative Body with respect to the sale and
issuance of the Note and participation in the Program are hereby approved, confirmed and
ratified, and the Authorized Representatives and agents of the Local Agency are hereby
authorized and directed, for and in the name and on behalf of the Local Agency, to do any and
all things and take any and all actions and execute any and all certificates, agreements and other
documents which they, or any of them, may deem necessary or advisable in order to
consummate the lawful issuance and delivery of the Note in accordance with, and related
transactions contemplated by, this Resolution, Each of the Authorized Representatives of the
Local Agency referred to in Section 21 hereof is hereby designated as an "Authorized Local
Agency Representative" under the Trust Agreement.
In the event that the Note or a portion thereof is secured by a Credit Instrument,
any Authorized Representative of the Local Agency is hereby authorized and directed to
provide the Credit Provider, with any and all information relating to the Local Agency as such
Credit Provider may reasonably request.
Section 15, Proceedinl!s Constitute Contract, The provisions of the Note and
of this Resolution shall constitute a contract between the Local Agency and the registered
owner of the Note and the Credit Provider, if any, and such provisions shall be enforceable by
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
mandamus or any other appropriate suit, action or proceeding at law or in equity in any court of
competent jurisdiction, and shall be irrepealable, The Credit Provider, if any, is a third party
beneficiary of the provisions of this Resolution and the Note,
Section 16. Limited Liabilitv, Notwithstanding anything to the contrary
contained herein or in the Note or in any other document mentioned herein, the Local Agency
shall not have any liability hereunder or by reason hereof or in connection with the transactions
contemplated hereby except to the extent payable from moneys available therefor as set forth in
Section 8 hereof.
Section 17, Amendments, At any time or from time to time, the Local Agency
may adopt one or more Supplemental Resolutions with the written consents of the Authority
and the Credit Provider, if any, but without the necessity for consent of the owner of the Note
for anyone or more of the following purposes:
(a) to add to the covenants and agreements of the Local Agency in
this Resolution, other covenants and agreements to be observed by the Local
Agency which are not contrary to or inconsistent with this Resolution as
theretofore in effect;
(b) to add to the limitations and restrictions in this Resolution, other
limitations and restrictions to be observed by the Local Agency which are not
contrary to or inconsistent with this Resolution as theretofore in effect;
(c) to confirm, as further assurance, any pledge under, and the
subjection to any lien or pledge created or to be created by, this Resolution, of
any monies, securities or funds, or to establish any additional funds or accounts
to be held under this Resolution;
(d) to cure any ambiguity, supply any omission, or cure or correct
any defect or inconsistent provision in this Resolution; or
(e)
to amend or supplement this Resolution in any other respect;
provided, however, that any such Supplemental Resolution does not adversely affect the
interests of the owner of the Note or of the Note Participations executed and delivered in
connection with the Notes,
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
Any modifications or amendment of this Resolution and of the rights and
obligations of the Local Agency and of the owner of the Note or of the Note Participations
executed and delivered in connection with the Notes may be made by a Supplemental
Resolution, with the written consents of the Authority and the Credit Provider, if any, and with
the written consent of the owners of at least a majority in principal amount of the Note and of
the Note Participations executed and delivered in connection with the Notes outstanding at the
time such consent is given; provided, however, that if such modification or amendment will, by
its terms, not take effect so long as the Note or any or of the Note Participations executed and
delivered in connection with the Notes remain outstanding, the consent of the owners of such
Note or of the Note Participations executed and delivered in connection with the Notes shall
not be required, No such modification or amendment shall permit a change in the maturity of
the Note or a reduction of the principal amount thereof or an extension of the time of any
payment thereon or a reduction of the rate of interest thereon, or a change in the date or
amounts of the pledge set forth in this Resolution, without the consent of the owners of such
Note or the owners of all of the Note Participations executed and delivered in connection with
the Notes, or shall reduce the percentage of the Note or the owners of all of the Note
Participations executed and delivered in connection with the Notes, the consent of the owners
of which is required to effect any such modification or amendment, or shall change or modify
any ofthe rights or obligations of the Trustee without its written assent thereto,
Section 18. Severabilitv. In the event any provision of this Resolution shall be
held invalid or unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof,
Section 19. Appointment of Bond Counsel. The Local Agency approves and
consents to the appointment of the law firm of Orrick, Herrington & Sutcliffe LLP, Los
Angeles, California as Bond Counsel for the Program, The Local Agency acknowledges that
Bond Counsel regularly performs legal services for many private and public entities in
connection with a wide variety of matters, and that Bond Counsel has represented, is
representing or may in the future represent other public entities, underwriters, trustees, rating
agencies, insurers, credit enhancement providers, lenders, financial and other consultants who
may have a role or interest in the proposed financing or that may be involved with or adverse to
Local Agency in this or some other matter. Given the special, limited role of Bond Counsel
described above, the Local Agency acknowledges that no conflict of interest exists or would
exist, waives any conflict of interest that might appear to exist, and consents to any and all such
relationships,
Section 20. Appointment of Underwriter, The Local Agency approves and
consents to the appointment of Barclays Capital Inc" as senior manager, together with such co-
underwriters, if any, identified in the Purchase Contract, as Underwriter for the Program,
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2009-94
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
Section 21. Resolution Parameters,
(a)
(b)
Name of Local Agency: CITY OF SAN BERNARDINO
Maximum Amount of Borrowing: $20,000,000,00
(c) Authorized Representatives:
TITLE
(1) Mayor
(2) City Clerk
(3) City Manager
Section 22. Effective Date, This Resolution shall take effect from and after its
date of adoption,
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2009-94
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6 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the
RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
7 Mayor and Common Council of the City of San Bernardino at a ioint regular meeting
8 thereof, held on the 20th day of April
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, 2009, by the following vote, to wit:
COUNCILMEMBERS AYES
ESTRADA x
BAXTER x
x
BRINKER
x
SHORETT
KELLEY x
x
JOHNSON
McCAMMACK
NAYS
ABSTAIN ABSENT
x
~h,~
Rac el Clark, City Clerk
The foregoing resolution is hereby approved this ;<3 day of~pril _ 2009,
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~~~~
City of San Bernardino
Approved as to form:
"-
s ,Penman, City Attorney
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EXHIBIT A
FORM OF NOTE
CITY OF SAN BERNARDINO
2009 TAX AND REVENUE ANTICIPATION NOTE, SERIES
~I
Interest Rate
%
Maturitv Date
Date of
on ginal Issue
July 1,2009
Third
Repayment Date
First
Repayment Date
Second
Repayment Date
_% (Total of
principal and
interest due on
Note at maturity)
_% (Total of
principal and interest
due on Note at
maturity)
_% (Total of
principal and interest
due on Note at
maturity) "I
REGISTERED OWNER:
PRINCIPAL AMOUNT:
FOR VALUE RECEIVED, the Local Agency executing this Note (the "Local
Agency") acknowledges itself indebted, and promises to pay, to the registered owner identified
above, or registered assigns, on the maturity date set forth above, the principal sum specified
above in lawful money of the United States of America, and to pay interest thereon on each
Interest Payment Date, as defined in the Trust Agreement, at the Interest Rate specified above
(the "Note Rate"), Principal of and interest on this Note are payable in such coin or currency of
the United States as at the time of payment is legal tender for payment of private and public
debts, such principal to be paid upon surrender hereof at the principal corporate trust office of
Wells Fargo Bank, National Association in Los Angeles, California, or its successor in trust
(the "Trustee"), Interest is payable as specified in the Trust Agreement. Interest shall be
calculated on the basis of a 360-day year, consisting of twelve 30-day months, in like lawful
money from the date hereof until the maturity date specified above and, if funds are not
provided for payment at maturity, thereafter on the basis of a 360-day year for actual days
elapsed until payment in full of said principal sum, Both the principal of and interest on this
Note shall be payable only to the registered owner hereof upon surrender of this Note as the
same shall fall due; provided, however, no interest shall be payable for any period after
maturity during which the holder hereof fails to properly present this Note for payment. If the
'!
If more than one Series is issued under the Program in the Repayment Fiscal Year.
~I
Number of Repayment Dates and percentages to be determined in Pricing Confirmation (as defined in the
Resolution).
OHS West:260611459.3
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Local Agency fails to pay this Note when due or the Credit Provider (as defined in the
Resolution hereinafter described), if any, is not reimbursed in full for the amount drawn on or
paid pursuant to the Credit Instrument (as defined in the Resolution) to pay all or a portion of
this Note on the date of such payment, this Note shall become a Defaulted Note (as defined and
with the consequences set forth in the Resolution),
It is hereby certified, recited and declared that this Note (the "Note") represents
the authorized issue of the Note in the aggregate principal amount made, executed and given
pursuant to and by authority of certain resolutions of the Legislative Body of the Local Agency
duly passed and adopted heretofore, under and by authority of Article 7,6 (commencing with
Section 53850) of Chapter 4, Part 1, Division 2, Title 5 of the California Government Code
(collectively, the "Resolution"), to all of the provisions and limitations of which the owner of
this Note, by acceptance hereof, assents and agrees,
The principal of the Note, together with the interest thereon, shall be payable
from taxes, income, revenue, cash receipts and other moneys which are received by the Local
Agency for the general fund of the Local Agency and are attributable to the Repayment Fiscal
Year, as defined in the Resolution, and which are available for payment thereof, As security
for the payment of the principal of and interest on the Note, the Local Agency has pledged the
first amounts of unrestricted revenues of the Local Agency received on the last day of the
Repayment Months (as defined in the Resolution) identified in the Pricing Confirmation (as
defined in the Resolution) (and any amounts received thereafter attributable to the Repayment
Fiscal Year) until the amount on deposit in the Payment Account (as defined in the Resolution)
in each such month, is equal to the corresponding percentages of principal of and interest due
on the Note as set forth in the Pricing Confirmation (such pledged amounts being hereinafter
called the "Pledged Revenues"), and the principal of the Note and the interest thereon shall
constitute a first lien and charge thereon and shall be payable from the Pledged Revenues, and
to the extent not so paid shall be paid from any other moneys of the Local Agency lawfully
available therefore as set forth in the Resolution, The full faith and credit of the Local Agency
is not pledged to the payment ofthe principal or interest on this Note,
The Local Agency and the Trustee may deem and treat the registered owner
hereof as the absolute owner hereof for the purpose of receiving payment of or on account of
principal hereof and interest due hereon and for all other purposes, and the Local Agency and
the Trustee shall not be affected by any notice to the contrary,
It is hereby certified that all of the conditions, things and acts required to exist,
to have happened and to have been performed precedent to and in the issuance of this Note do
exist, have happened and have been performed in due time, form and manner as required by the
Constitution and statutes of the State of California and that the amount of this Note, together
with all other indebtedness of the Local Agency, does not exceed any limit prescribed by the
Constitution or statutes ofthe State of California,
OHS West260611459,)
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IN WITNESS WHEREOF, the Legislative Body of the Local Agency has
caused this Note to be executed by the manual or facsimile signature of a duly Authorized
Representative of the Local Agency and countersigned by the manual or facsimile signature of
the Secretary or Clerk of the Legislative Body as of the date of authentication set forth below,
CITY OF SAN BERNARDINO
By:
Title:
Countersigned
By:
Title:
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Page I of3
Fedor_Ma
From: Myers_Ka
Sent: Tuesday, September 08, 2009 1 :00 PM
To: Fedor_Ma
Subject: RE: Tran Documents Resottuion 2009-94 from April 6 Council Meeting
Margaret,
Yes, that's correct. Those documents will not be executed,
Kate
Kate Myers, CPA MBA
Accounting Manager
Finance Department
City of San Bernardino
300 North "D" Street
San Bernardino, CA 92418-0001
909,384,5331 phone
909,384,5043 fax
myers ka@sbcity.oI9
www.sbcity.org
From: Fedor_Ma
Sent: Tuesday, September 08, 2009 10:48 AM
To: Myers_Ka
Subject: RE: Tran Documents Resoltuion 2009-94 from April 6 Council Meeting
Good morning Kate,
Just to confirm, I can make a notation on the original resolution indicating
9/8/2009
Page 20f3
that the documents attached to the resolution were not executed? I need to
verify it because I will need to redistribute the resolution with the notation
to the appropriate parties prior to us scanning it into our laser fiche
system,.
Thanks
From: Myers_Ka
Sent: Thursday, August 27, 2009 10:37 AM
To: Fedor_Ma
Cc: Pachon_Ba
Subject: RE: Tran Documents Resoltuion 2009-94 from April 6 Council Meeting
Margaret,
I don't believe we will be issuing a TRAN this year so there won't be any
documents to attach,
Kate
Kate Myers, CPA MBA
Accounting Manager
Finance Department
City of San Bernardino
300 North "0" Street
San Bernardino, CA 92418-0001
909,384,5331 phone
909,384,5043 fax
myers ka@sbcitv.orq
www.sbcity,org
9/8/2009
Page 3 of3
From: Fedor_Ma
Sent: Thursday, August 27, 2009 9:52 AM
To: Myers_Ka
Subject: Tran Documents Resoltuion 2009-94 from April 6 Council Meeting
Good morning Kate,
Just looking for an update on the status of the documents that were
attachments to Reso 2009-94, Have the documents been signed? We
need signed copies of the agreements, certificates, etc to be filed with the
original resolution,
Thanks!
o((argarel Gl" c:fediJr
c::I.a:eculiw .&wltVtlliJ lhe 61ip f?lcrk
f?iip ojc&n r5&marmitiJ
(909)38H002
9/812009