HomeMy WebLinkAbout1991-5304
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RESOLUTION NO. 5304
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF SAN BERNARDINO, AUTHORIZING, ON BEHALF OF
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,
THE BORROWING OF FUNDS FROM THE SAN BERNARDINO JOINT
POWERS FINANCING AUTHORITY IN A TOTAL AGGREGATE
PRINCIPAL AMOUNT OF NOT TO EXCEED $28,000,000 TO
UNDERTAKE ADDITIONAL REDEVELOPMENT PROJECTS AND TO
REFUND ITS OUTSTANDING CENTRAL CITY REDEVELOPMENT
PROJECT, TAX ALLOCATION REFUNDING BONDS, ISSUE OF 1985,
AUTHORIZING THE FORM OF CERTAIN LEGAL DOCUMENTS RELATED
THERETO AND AUTHORIZING AND Directing THE PREPARATION,
EXECUTION AND DELIVERY OF THE FORMS THEREOF
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the Redevelopment Agency of the City of San Bernardino (the
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WHEREAS, the city of San Bernardino (the "City") and
"Agency") have heretofore entered into a Joint Exercise of Powers
Agreement establishing the San Bernardino Joint Powers Authority
(the "Authority") for the purpose of issuing its bonds to be used
to make loans to any of its members to finance public capital
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improvements; and
WHEREAS, the Authority proposes at this time to issue
its not to exceed $28,000,000 San Bernardino Joint Powers
Authority Tax Allocation Refunding Bonds, 1991 Series A (Central
City Merged Project), (the "Bonds") to make a loan (the "Loan")
to the Agency in a total principal amount of not to exceed
$28,000,000 to undertake additional redevelopment projects and to
refund its Central City Redevelopment Project Tax Allocation
Refunding Bonds,- Issue of 1985 (the "Prior Bonds"); and
WHEREAS, the Loan to the Agency from the Author i ty
shall be made pursuant to and in accordance with that certain
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1 Loan Agreement dated as of October 1, 1991 (the "Loan
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'- 2 Agreement"), by and among the Agency, the Authority and security
3 Pacific National Bank, as trustee (the "Trustee"), a form of
4 which has been prepared and is presently on file with the
5 Secretary of the Commission; and
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7 WHEREAS, Miller & Schroeder Financial, Inc., as
8 prospective underwriter of the Bonds (the "underwriter") has
9 informed the Authority that it intends to submit an offer to
10 purchase the Bonds and shall cause to be prepared a Preliminary
11 Official Statement and an Official Statement relating to such
12 Bonds as may be necessary in the sale and marketing of the Bonds,
13 a form of.which is presently on file with the Secretary of the
14 Authority; and
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16 WHEREAS, the Agency is authorized pursuant to Section
17 33601 of the Health and Safety Code of the State of California to
18 borrow moneys for redevelopment purposes; and
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20 WHEREAS, the Commission has determined to approve the
21 borrowing by the Agency of a certain amount representing proceeds
22 of the sale of the Bonds under the Loan Agreement for the purpose
23 of refunding the Prior Bonds; and
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25 WHEREAS, the Commission has duly considered such
26 transaction and wishes at this time to approve said transaction
27 in the public interests of the Agency;
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1 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION
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',- 2 ACTING ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
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section 1. Determinations. The Commission hereby
finds and determines that the issuance of the Bonds by the
Authority will result in significant public benefits, consisting
of demonstrable savings in any and all of the following:
effective interest rates, bond preparation, bond underwriting or
bond issuance costs.
section 2. Authorization of Loan: Approval of Loan
Aqreement. The Commission hereby authorizes and approves the
Loan to be made to the Agency by the Authority in the total
principal amount of not to exceed $28,000,000 pursuant to and in
accordance with the terms of the Loan Agreement for the purpose
of undertaking additional redevelopment projects and refunding
its Prior Bonds. The Commission hereby approves the form of the
19 Loan Agreement as presently on file with the Secretary of the
20 commission, together with any changes therein or additions
21 thereto as may be approved by the Chairman and as necessary to
22 incorporate the principal amount, interest rate, maturity and
23 prepaYment dates, pledge of security thereunder and such other
24 terms and conditions when such terms and conditions have been
25 ascertained. The Commission hereby further authorizes and
26 directs that the form of the Loan Agreement be converted into the
27 final form of the Loan Agreement. The Chairman, Vice-Chairman or
28 such other members of the Commission are hereby authorized and
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directed to execute and deliver, and the Secretary or Assistant
Secretary is hereby authorized and directed to attest to and
affix the seal of the Commission to, the final form of the Loan
Agreement when the same has been prepared for and in the name of
and on behalf of the Agency and such execution and delivery shall
be deemed to be conclusive evidence of the approval thereof. The
proceeds of the Loan shall be applied by the Agency to undertake
additional redevelopment projects and to refund its Prior Bonds.
The Commission hereby authorizes the delivery and performance of
the Loan Agreement.
section 3.
Official Actions.
The Chairman, Vice-
13 Chairman and other members of the Commission, the Secretary,
Assistant Secretary, counsel to the Commission, the Executive
Director of the Agency, Agency Counsel and any and all other
members and officers of the Commission and the Agency are hereby
authorized and directed, for and in the name and on behalf of the
Agency, to do any and all things and to take any and all actions,
including execution and delivery of any and all assignments,
certificates, requisitions, agreements, notices, consents,
instruments of conveyance, warrants and other documents which
they, or any of them, may deem necessary or advisable in
connection with the execution and delivery of the Loan Agreement
and the consummation of the transactions described herein and
therein.
The Commission hereby acknowledges that, in connection
wi th the authorization of the issuance of the Bonds by the
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1 Authority pursuant to the Indenture, a form of which is presently
2 on file with the Secretary of the Authority, the Underwriter has
3 submitted the proposed bond transactions to certain municipal
4 bond insurance companies for consideration in connection with the
5 issuance of municipal bond insurance policies insuring paYment of
6 the principal of and interest on the Bonds and to certain
7 municipal bond rating agencies for consideration in connection
8 with the rating of the Bonds.
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO, AUTHORIZING, ON BEHALF OF THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO, THE BORROWING OF FUNDS FROM
THE SAN BERNARDINO JOINT POWERS FINANCING AUTHORITY IN A TOTAL
AGGREGATE PRINCIPAL AMOUNT OF NOT TO EXCEED $28,000,000 TO
UNDERTAKE ADDITIONAL REDEVELOPMENT PROJECTS AND TO REFUND ITS
OUTSTANDING CENTRAL CITY REDEVELOPMENT PROJECT, TAX ALLOCATION
REFUNDING BONDS, ISSUE OF 1985, AUTHORIZING THE FORM OF CERTAIN
LEGAL DOCUMENTS RELATED THERETO AND AUTHORIZING AND DIRECTING THE
PREPARATION, EXECUTION AND DELIVERY OF THE FORMS THEREOF
section 4.
Effective Date.
This Resolution shall
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take effect from and after the date of its passage and adoption.
I HEREBY CERTIFY that the foregoing Resolution was duly
adopted by the Community Development Commission of the City of
San Bernardino at a
Joint Requ1ar
meeting
thereof, held on the 16th
day of September
1991, by the following vote, to wit:
ABSENT
ABSTAIN
NAYS
commission Members:
AYES
x
x
ESTRADA
REILLY
HERNANDEZ
MAUDSLEY
MINOR
POPE-LUDLAM
MILLER
x
x
x
x
x
this
J. Henderson
16th
The foregoing resolution is
day of September , 1991.
Chairman
opment Commission
San Bernardino
Approved as to form and legal content:
By: .ht.--.... ~~~~~ ~
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1 STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
2 CITY OF SAN BERNARDINO )
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I, Kenneth J. Henderson Secretary of the Community
Development Commission of the City of San Bernardino, DO HEREBY
CERTIFY that the foregoing and attached copy of Community
Development Commission of the City of San Bernardino Resolution
No. 5304 is a full, true and correct copy of that now on
file in this office.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the official seal of the Community Development Commission
of the ci ty of San Bernardino this 16th day of
September , 1991.
secr~he
community Development
Commission of the City of San
Bernardino
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COMMUNITY DEVELOPMENT COMMISSION
CITY OF SAN BERNARDINO, CALIFORNIA
AGENDA
September 16, 1991
Item: RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF SAN BERNARDINO, AUTHORIZING, ON BEHALF OF
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,
THE BORROWING OF FUNDS FROM THE SAN BERNARDINO JOINT
POWERS FINANCING AUTHORITY IN A TOTAL AGGREGATE
PRINCIPAL AMOUNT OF NOT TO EXCEED $28,000,000 TO
UNDERTAKE ADDITIONAL REDEVELOPMENT PROJECTS AND TO
REFUND ITS OUTSTANDING CENTRAL CITY REDEVELOPMENT
PROJECT, TAX ALLOCATION REFUNDING BONDS, ISSUE OF 1985,
AUTHORIZING THE FORM OF CERTAIN LEGAL DOCUMENTS RELATED
THERETO AND AUTHORIZING AND DIRECTING THE PREPARATION,
EXECUTION AND DELIVERY OF THE FORMS THEREOF
Action to
be Taken: Adopt Resolution.
Certified copy of Resolution to be returned to Sabo & Green, A
Professional Corporation.
SBEO/01111DOC/3
09/10/9103210
G
Draft 9/04/91
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SAN BERNARDINO JOINT POWERS FINANCING AUTHORITY
TAX ALLOCATION REFUNDING BONDS, 1991 SERIES A
(CENTRAL CITY MERGED PROJECT)
BOND PURCHASE AGREEMENT
, 1991
San Bernardino Joint Powers
Financing Authority
300 North "0" Street
San Bernardino, California 92418
Ladies and Gentlemen:
Miller &: Schroeder Financial, Inc. (the "Underwriter") hereby offers to
purchase upon the terms and conditions hereinafter specified, $
aggregate principal amount of San Bernardino Joint Powers Financing Authority
Tax Allocation Refunding Bonds, 1991 Series A (Central City Merged Project) (the
"Bonds") to be issued by the San Bernardino Joint Powers Financing Authority (the
"Authority"). The Authority will issue the Bonds pursuant to a resolution adopted
/""" " on , 1991 (the "Resolution"). The Bonds are described on
'- Exhibit A attached hereto and will be offered and sold pursuant to an Official
Statement (the "Official Statement"). If and when accepted by you, this document
shall constitute our Bond Purchase Agreement (the "Agreement").
It is our understanding that the Bonds are to be issued pursuant to the
Marks-Roos Local Bond Pooling Act of 1985 contituting Article 4 (commencing
with Section 6584), Chapter 5 of Division 7 of Title 1 of the Government Code of
the State (the "Act") and under the Resolution. The proceeds of the Bonds will be
used to make a loan to the Redevelopment Agency of the City of San Bernardino
(the "Agency"), to be applied by the Agency to (i) advance refund its $21,000,000
Tax Allocation Refunding Bonds, Issue of 1985 (the "1985 Bonds"), (ii) assist in
financing land acquisition and public improvements (the "Project") in the Central
City Merged Redevelopment Project (the "Project Area"), (iii) fund in part the
Agency's Low and Moderate Income Housing Fund relating to the Project Area, and
(iv) pay other costs associated with the implementation of the Project. The Bonds
are payable from the repayments of the Agency loan, which are secured by a
pledge of the Agency's Tax Revenues. The Bonds will be sold by the Underwriter as
described in the Official Statement. All capitalized terms not otherwise defined
herein shall have the meaning assigned to them in the Indenture of Trust dated as
of October 1, 1991 (the "Inde~ture").
1. Representations of the Authority. The Authority hereby represents,
warrants and agrees that both at the date hereof and at the date of closing that:
(a) The Authority is a public entity of the State of California, duly
organized and existing under and pursuant to the Constitution and laws of the State
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of California. The Act authorizes the Authority to adopt the Resolution and to
enter into the Loan Agreement and the Indenture.
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(b) To the best of its knowledge the Authority has complied with all
provisions of California law, including the Act, in connection with the
authorization and issuance of the Bonds, and has full power and authority to adopt
the Resolution and to execute and deliver this Agreement, the Resolution, the
Indenture, the Loan Agreement, and any and all other agreements relating thereto
and to carry out the terms thereof.
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(c) The Resolution has been duly and validly adopted. This Agreement
and any other documents related to the Bonds, when executed and delivered as
contemplated by this Agreement, will have been duly and validly authorized,
executed and delivered, will be in full force and effect and will be valid and binding
obligations of the Authority enforceable in accordance with their terms, except to
the extent that the enforceability thereof may be limited by bankruptcy,
insolvency or other laws affecting creditors' rights generally. The Resolution, the
Indenture, the Loan Agreement, and this Agreement shall be in the form heretofore
submitted to us and approved by us with only such changes as mutually agreed upon
by us and the Authority.
(d) The Authority has duly authorized all necessary action to be taken by
it for (i) the authorization, and sale of the Bonds upon the terms set forth herein
and in the Resolution; (ii) the execution and delivery by it of the Resolution and the
Indenture providing for the issuance of and security for the Bonds and the pledge by
the Authority of Revenues sufficient to pay the principal and interest on the Bonds;
and (Hi) the execution, delivery, receipt and due performance of this Agreement,
the Bonds, the Resolution, the Indenture, the Loan Agreement, and any and all such
other agreements and documents as may be required to be executed, delivered and
received by the Authority in order to carry out, give effect to and consummate the
transactions contemplated hereby. Executed counterparts of the Resolution, the
Indenture, the Loan Agreement, and this Agreement, will be delivered by the
Authority at the Closing Time as hereinafter defined.
(e) The Bonds when issued and delivered as provided herein and in the
Resolution and Indenture, will have been duly and validly authorized and issued and
will be entitled to the benefits and security of the Resolution and the Indenture
which among other things provide that the Bonds and the interest thereon are
payable solely from Revenues (except to the extent paid out of moneys attributable
to the Bonds or refunding bond proceeds or the income from the temporary
investment thereof and, under certain circumstances, proceeds of insurance, sale
and condemnation awards) and not from any other fund or source and do not
constitute a debt of the Authority within the meaning of any constitutional or
statutory limitation.
(f) The Official Statement does not contain any untrue statement of a
material fact or omit to stat~ a material fact required to be stated therein in order
to make the statements contained therein not misleading. By offical action of the
Authority prior to or concurrently with the acceptance hereof, the Authority has
duly authorized and approved the use and distribution of the Official Statement.
(g) The Authority will cause the proceeds from the sale of the Bonds to
be utilized as specified in the Resolution. So long as any of the Bonds are
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outstanding and except as may be authorized by the Resolution, the Indenture, or
- the Loan Agreement, the Authority will not issue or sell any bonds or other
'-' obligations, other than the Bonds sold thereby and additional bonds permitted to be
issued and sold as provided in the Resolution, the Indenture, or the Loan
Agreement, the interest and premium, if any, or principal of which will be payable
from the Revenues and will not pledge the Revenues other than to the payment of
the Bonds and additional bonds permitted to be sold as provided in the Resolution,
the Indenture, or the Loan Agreement, and the interest thereon, except as provided
in the Resolution, the Indenture, or the Loan Agreement.
(h) There is no action, suit, proceeding, inquiry or investigation at law or
in equity or before or by any court, public board, or body pending or, to the
knowledge of the Authority, threatened against or affecting the Authority (or any
basis therefor) wherein an unfavorable decision, ruling or finding would have a
material adverse effect on the validity or security of the Bonds, the Resolution,
this Agreement, the Indenture, or the Loan Agreement, or the transactions
contemplated thereby, or the tax exempt status of the Bonds.
(i) The adoption of the Resolution and the execution and delivery of the
Indenture, the Loan Agreement, or this Agreement, and the other agreements
contemplated hereby and by the Official Statement, and the substantial compliance
with the provisions thereof, will not conflict with or result in a material breach of
any of the terms and provisions of, or constitute a material default under, any
existing law, court or administrative regulation, decree or order, or any agreement,
indenture, mortgage, lease or other instrument to which the Authority is subject or
by which it is or may be bound.
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G) Any certificates signed by an authorized officer of the Authority and
delivered to the Underwriter at closing shall be deemed a representation and
warranty by the Authority to the statements made therein.
(k) The Authority is not now in default, nor has the Authority been in
default at any time since September 1, 1976, as to principal or interest with
respect to any obligations issued by the Authority or predecessor to the Authority.
(1) The Preliminary Official Statement, dated , which has
been provided to the Underwriter, is deemed final as of its date, except for the
omission of certain information permitted to be omitted by Regulation Section
240.15c2-12(b)(1) promulgated by the Securities and Exchange Commission.
2. Purchase, Sale and Delivery of the Bonds. On the basis of the
representations and warranties and subject to the terms and conditions set forth
herein, the Authority agrees to sell, and the Underwriter agrees to purchase at the
Closing Time and at the Closing Date (as hereafter defined), the total principal
amount of the Bonds at a purchase price of $ plus interest accrued from
the date of the Bonds to the Closing Date. Payment for the Bonds shall be made in
same day funds by a wire transfer of those funds at the offices of Bond Counsel, or
some other mutually agreeable place at ten o'clock a.m. prevailing time on
, or at such other date, time and place agreed upon by
appropriate officers of the Authority and the Underwriter against delivery of the
Bonds to the Underwriter. The date of such payment and delivery is herein called
the "Closing Date" and the hour and date of such delivery and payment is herein
called the "Closing Time". The Bonds will be delivered in fully registered form,
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bearing CUSIP numbers (provided neither the printing of a wrong number nor the
failure to print a number shall constitute cause to refuse delivery of any Bond).
3. Covenants of the Authority. The Authority shall:
(a) cooperate in qualifying the Bonds for offer and sale under the Blue
Sky laws of California, provided that the Authority shall not be required to consent
to service of process or qualify to do business in any state or jurisdiction;
(b) at the Underwriter's request, refrain from taking any action, or
permitting any action to be taken with regard to which the Authority may exercise
control, or take any action reasonably necessary to assure or maintain the
exclusion of interest on the Bonds from gross income of the Owners thereof for
federal income tax purposes pursuant to the Internal Revenue Code of 1986, as
amended;
(c) if, at any time for a period of ninety (90) days after the date of the
Official Statement, an event pertaining to the Authority, the Agency, the City of
San Bernardino, the Project Area or the Tax Revenues shall have occurred as a
result of which it is necessary to amend or supplement the Official Statement or to
make the statements therein not untrue nor misleading or to make the Official
Statement comply with any state Blue Sky law (subject to 3(a) above), and the
Authority shall have received actual notice of such event, the Authority will notify
the Underwriter promptly thereof and cooperate with the Underwriter in preparing
an appropriate amendment or a supplement that will correct the statements in the
Official Statement in order to make the statements therein not untrue or
misleading;
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(d) fully comply with and assume all expenses incurred in fully complying
with all regulatory requirements imposed by the State of California or any federal
regulatory authority as may have jurisdictions herein, including, but not limited to,
all expenses incurred and required in the preparation and filing of such interim and
annual financial information and reports as may be required to maintain the
registration of the Bonds, or exemptions from registration, as the case may be,
copies of all of which the Authority agrees to promptly furnish to the Underwriter
at such time as the same may be filed in the office of any such state or federal
regulatory authority;
(e) On or before the date hereof, as may be reasonably requested by the
Underwriter, the Authority agrees to assist the Underwriter in causing the delivery
to the Underwriter of copies of the Official Statement in sufficient quantities and
in the time required to permit the Underwriter to comply with Regulation Section
240.15c2-12(b)(4) promulgated by the Securities and Exchange Commission and with
the rules of the Municipal Securities Rulemaking Board.
4. Conditions of Underwriter's Obligations. The obligations of the
Underwriter to purchase and pay for the Bonds are subject to the following
conditions:
(a) The representations and warranties of the Authority contained herein
shall be true and correct as of the date hereof and the Closing Date.
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(b) At the Closing Date, the Authority shall have performed all of its
obligations hereunder theretofore to be performed.
(c) At the Closing Date, there shall be delivered to the Underwriter:
(i) an opinion of Bond Counsel, in the form set forth in Appendix
C to the Official Statement, together with a reliance letter addressed to the
Underwriter, and an opinion of Bond Counsel in the form set forth in Exhibit
A hereto;
(ii) an opinion of the counsel to the Authority, addressed to the
Authority, the Underwriter, counsel to the Underwriter, and Bond Counsel in
form and substance satisfactory to the Underwriter; and
(Hi) an opinion of the counsel to the Agency, addressed to the
Authority, the Underwriter, counsel to the Underwriter, and Bond Counsel in
form and substance satisfactory to the Underwriter; and
(iv) an opinion of Underwriter's counsel, Holmes & Graven,
Chartered, addressed to the Underwriter, in form and substance satisfactory
to the Underwriter, covering such legal phases of the transactions
contemplated by this Agreement as the Underwriter may reasonably require.
In rendering the above opinions, counsel may rely upon customary certificates.
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(d) The Bonds, the Resolution, the Indenture, the Loan Agreement, in
substantially the forms existing on the date hereof, with such changes therein as
may be mutually agreed upon by the parties thereto and the Underwriter, shall
have been duly authorized, executed and delivered by the respective parties
thereto and such agreements and the Resolution shall be in full force and effect on
the Closing Date.
(e) All proceedings and related matters in connection with the
authorization, issue, sale and delivery of the Bonds shall have been satisfactory to
Bond Counsel and counsel for the Underwriter, and such counsel shall have been
furnished with such papers and information as they may have reasonably requested
to enable them to pass upon the matters referred to in this subparagraph.
(f) The Authority shall have furnished or caused to be furnished to the
Underwriter on the Closing Date certificates satisfactory to the Underwriter as to
the accuracy of its representations and warranties contained herein as of the date
hereof and as of the Closing Date and as to the performance by it of its obligations
hereunder to be performed at or prior to the' Closing Date.
(g) The Bonds shall be exempt from registration pursuant to the
Securities Act of 1933, as amended; and the Resolution and the Indenture and
related security instruments. shall be exempt from qualification pursuant to the
Trust Indenture Act of 1939, as amended.
(h) The Bonds shall be registered or exempt from registration for sale in
the State of California.
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(i) The Authority shall have delivered to the Underwriter all
documentation requested by the Underwriter relating to the City of San
Bernardino, the Authority, the Agency, and the Project or any documents required
by the Underwriter to secure the interests of the holders of the Bonds.
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0> The Underwriter shall have received a verification report from
verifying the suffiency of the escrow deposit for the
purpose of defeasing the 1985 Bonds.
(k) The Underwriter shall have received an opinion of Bond Counsel that
the 1985 Bonds have been legally defeased in accordance with their terms.
(1) The Agency shall have delivered to the Underwriter a certificate to
the effect that the information contained in the Official Statement under the
headings "The Agency" and "The Project Area" does not contain any untrue
statement of a material fact or omit to state any material fact necessary in order
to make the statements contained therein, in light of the circumstances under
which they were made, not misleading. .
All proceedings taken at or prior to the Closing Date in connection with the
authorization, issue and sale of the Bonds shall be satisfactory in form and
substance to the Underwriter and counsel to the Underwriter, and the Underwriter
and counsel to the Underwriter shall have been furnished with all such documents,
certificates and opinions as the Underwriter and counsel to the Underwriter may
request to evidence the accuracy and completeness of any of the representations,
warranties or statements, the performance of any covenants of the Authority, or
the compliance with any of the conditions herein contained.
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All such opinions, certificates, letters and documents will be in compliance
with the provisions hereof only if they are in all material respects satisfactory to
the Underwriter and to counsel for the Underwriter, as to which both the
Underwriter and such counsel shall act reasonably.
If any conditions of the Underwriter's obligation hereunder to be satisfied
prior to the Closing Date are not so satisfied, this Agreement may be terminated
by the Underwriter by notice in writing or by telegram to the Authority.
The Underwriter may waive in writing compliance by the Authority of any
one or more of the foregoing conditions or extend the time for its performance.
5. Offerinp: by Underwriter. The Underwriter intends to offer the Bonds
for sale to the public (which may include selected dealers) as set forth in the
Official Statement. Concessions from the public offering price may be allowed to
selected dealers. It is understood that the initial public offering price and
concessions set forth in the Official Statement may vary after the initial public
offering. It is further understood that the Bonds may be offered to the public at
prices other than the par value thereof. The net premium on the sale of the Bonds,
if any, shall accrue to the -benefit of the Underwriter. The Authority hereby
confirms the authority and use by the Underwriter of the Official Statement.
6. Representations, Warranties and Agreements to Survive Delivery.
The representations, warranties, indemnities, agreements and other statements of
the Authority and the Underwriter or their officers set forth in, or made pursuant
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to, this Agreement will remain op~rative and in full force and effect regardless of
any investigation made by or on behalf of the Authority or the Underwriter or any
controlling person and will survive delivery of and payment tor the BondS.
'1. Payment of Costs and Expenses.
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(a) Whether or not the Authority delivel'$ the Bonds to the Underwriter
on the Closing Date, the Underwritel" shall be under no ~bligation to pay, and the
Authority shall pay or ~use to' be paid out of Bond proceeds or otQitr funds, any
expenses incident to the performance ot the Authority's obligations hereunder,
including, 1)ut not limited to, the cost of printing the Bonds, the Preliminary
Official Statement and the Official Statement and furnishing copies thereof to the
Underwriter, the fees and expenses, it any, of Bond Counsel, the fees and expenses
of counsel to the Agency, the fees and expenses, if any, of Special Tax Counsel, the
initial lees and expenses, it any, of the Trustee, and the fess and expenses, it any,
of any' other counsel, consultants, accountants or other experts retained by the
Authority In connection with the issuance and sale of the Bonds. The estimated
issUance expenses of the Autho~ity incident to the performance of the Au~orlty's
obligations hereunder 81'e set forth in Exhibit C hereto.
(b) The Underwriter shall pay its own expenses, including fees ot. counsel
to the Underwriter and all advertising expenses incurred in connection with the
public ofterlng .of the Bonds.
8. Termination of AiTeement. The Underwriter shall have the right to
terminate this Agreement and thereupon be relieved ot ita obUgations hereund~1" to
purchaSe the Bonds, by written notice or by telegram to the Authority ot its
election so to do between the date hereof and the Closing Date, it at any time
hereafter and prior to the Closing Date:
(a) legislation shall be introduced, or a tentative decision with respect to
legislation sball be reached by' a committee of the House of Representatives or the
Seriate of the Congress of the United States or legislation shall be favorably
reported by such a committee or be Introduced, by amendment or otherwise, in, or
be enacted by the House of Representatives or the Senate, or recommended to the
Congress of the United States for passage by the President of the United States, or
a decision by a court established under Article m of the Constitution ot the United
States, shall be rendered, or a ruling~ regulation or order of the Treasury
Department ot the United States or the Internal Revenue Service shall be made or
proposed having the purpose or effect of impostor Federal income taxation, or any
other event shall have occurred which results In the imposition of Pederallnaome
taxation, upon revenues or oth.er income of the general. character to be derived by
the Authority.or by any simllar body or upon interest received on obliptions of the
general character of the Bonds, or the Bonds, which, in the Underwriter's opinion.
materiallY adversely affects the market price of the Bonds;.
(b) any legislation, ordinance, rule or regulation shall be introduced in, or
be enacted by.any governmental body. department or agency in the State of
California, or a decision by any court of competent jurisdiction within the State of
California shall be rendered which, in the Underwriter's opinion, materially
adverseiy atfects the market price of the Bonds;
--..
. .
(c) legislation shall be introduced, by amendment or otherw1s.e, in, or be
enacted by the Hou.se of Representatives or the Senate of the Congress ot the
'1
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United States, or a decision by a court of the United States shall be rendered, or a
- stop order, ruling, regulation or official statement by, or on behalf of, the
'-' Securities and Exchange Commission or other governmental agency having
jurisdiction of the subject matter shall be made or proposed, to the effect that the
issuance, offering or sale of obligations of the general character of the Bonds, or
the Bonds, contemplated hereby or by the Official Statement, is or would be in
violation of any provision of the Securities Act of 1933, as amended and as then in
effect, or the Securities Exchange Act of 1934, as amended and as then in effect,
or the Trust Indenture Act of 1939, as amended and as then in effect, or with the
purpose or effect of otherwise prohibiting the issuance, offering or sale of
obligations of the general character of the Bonds, or the Bonds, as contemplated
hereby or by the Official Statement;
(d) any event shall have occurred, or information become known, which,
in the Underwriter's opinion, makes untrue, incorrect or misleading in any material
respect any statement or information contained in the Official Statement, or has
the effect that the Official Statement contains an untrue, incorrect or misleading
statement of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading;
(e) additional material restrictions not in force as of the date hereof
shall have been imposed upon trading in securities generally by any governmental
authority or by any national securities exchange;
.--..
(f) the New York Stock Exchange or other national securities exchange,
or any governmental authority, shall impose, as to the Bonds or obligations of the
general character of the Bonds, any material restrictions not now in force, or
increase materially those now in force, with respect to the extension of credit by,
or the charge to the net capital requirements of, underwriters;
(g) trading in securities on the New York Stock Exchange or the
American Stock Exchange shall have been suspended or limited or minimum prices
have been established on either such exchange;
(h) a general banking moratorium shall have been established by Federal
or applicable State authorities;
(i) a default shall have occurred with respect to the obligations of, or
proceedings have been instituted under the Federal bankruptcy laws or any similar
state laws by or against, any state of the United States or any city located in the
United States having a population in excess of one million persons or any entity
issuing obligations on behalf of such a city or state;
G> any action shall have been taken by any government in respect of its
monetary affairs which, in the opinion of the Underwriter, has a material adverse
effect on the United States securities market;
---
(k) a war involving the United States shall have been declared, or any
conflict involving the armed forces of the United States shall have escalated, or
any other national emergency relating to the effective operation of government or
the financial community shall have occurred, which, in the Underwriter's opinion,
materially adversely affects the market price of the Bonds;
8
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(1) a default shall occur under any of the terms, conditions or
requirements of this Agreement; or
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(m) general political, economic and market conditions, in the sole
judgment of the Underwriter, shall not be satisfactory to permit the sale of the
Bonds.
9. Notice and Governin~ Law. All communications hereunder shall be in
writing and, except as otherwise provided, shall be delivered at, or mailed or
telegraphed to, the following addresses:
If to the Underwriter:
Miller & Schroeder Financial, Inc.
505 Lomas Santa Fe Drive, Suite 100
Solana Beach, California 92075
If to the Authority:
at the address set forth above
This Agreement shall be governed by and construed in accordance with the laws of
the State of California.
10. Parties in Interest. This Agreement shall be binding upon and shall
inure to the benefit of the Underwriter, the Authority, and, to the extent
expressed, any person controlling the Authority, or the Underwriter and their
respective executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, as such, from the
Underwriter of the Bonds.
,:"'~"'*'
c~
11.
Time. Time shall be of the essence of this Agreement.
12. Counterparts. This Agreement may be executed in any number of
counterparts.
If the foregoing is in accordance with your understanding of the Agreement,
kindly sign and return to us the enclosed duplicate copies hereof, whereupon it will
become a binding agreement between the Authority and the Underwriter in
accordance with its terms.
Very truly yours,
MILLER & SCHROEDER FINANCIAL, INC.
By
Its Authorized Representative
Confirmed and accepted as of the date first above written.
SAN BERNARDINO JOINT POWERS
FIN~UTHORITY
By ~Y:rc-
Its
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EXHIBIT A
,.,.,...
--
Maturity Date
( 1)
Principal
Amount
Interest
Rate
$
96
0_
-
10
\p
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EXlllBIT B
[Supplemental Opinion of Bond Counsel]
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11
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EXlUBIT C
"-'
Estimated Issuance Expenses
/"".,,,,,,,
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,~"
"-'
12
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