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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
e From: Barbara Pachon,
Director of Finance
Dept: Finance
Date: May 1, 2007
Subject: Authorization for City to participate in a
pooled tax and revenue anticipation note
(TRAN) financing program for cash flow
for FY 2007/08
Synopsis of Previous Council action:
6/6/94 -
6/5/95 -
5/20/96 -
6/2/97 -
6/1/98 -
5/17/99-
5/1/00-
4/16/01-
4/15/04-
5/02105-
6/05/06-
Resolution #94-131 adopted City participation in TRAN program.
Resolution #95-177 adopted City participation in TRAN program.
Resolution #96-112 adopted City participation In TRAN program.
Resolution #97-165 adopted City participation in TRAN program.
Resolution #98-129 adopted City participation in TRAN program.
Resolution #99-89 adopted City participation in TRAN program.
Resolution #00-98 adopted City participation in TRAN program.
Resolution #01-78 adopted City participation in TRAN program.
Resolution #04-112 adopted City participation in TRAN program.
Resolution #05-105 adopted City participation in TRAN program.
Resolution #06-170 adopted City participation in TRAN program.
Recommended motion:
e
Adopt Resolution
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, Signature
Contact person:
Phone:
Supporting data attached:
Barbara Pachon. Director of Finance
ext. 5242
Yes
Ward:
FUNDING REQUIREMENTS: Amount: Estimated net earnin!!s to Citv - $90,000 to General Fund FY 2007-08
(cash flow).
Council Notes:
Source: fAcet. No.) 001-000-4505 (Interest Income)
lAcct. Descriotionl
Finance:
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Agenda Item No. n
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CITY OF,SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
Subiect
The purpose of this resolution is to authorize the City's participation in a pooled Tax Revenue
and Anticipation Note (TRAN) financing program for FY 2007/08. Proposed participation for
2007/08 will be limited to the TRAN for cash flows.
Background
The League of California Cities, along with the California State Association of Counties, has
developed a program that allows local governments to borrow funds and issue notes to
provide monies for anticipated cash flow deficits. The program is being offered through the
California Statewide Community Development Authority, a joint powers authority established
to assist California communities with financing programs. The City of San Bernardino
participated in this program for ten years between 1994 through 2005. For the last year, the
City issued $9 million in TRANS in the cash flow program.
TRANs are typically tax-exempt obligations issued for periods of one year or less to offset
cash flow shortages as the result of predictable receipts and disbursements. Tax-exempt
TRANs must follow rules issued by the Int<;rnal Revenue Service to retain their tax-exempt
status. As an example, property tax related revenues are typically distributed to cities only a
few times during the year. This source of revenue generates over $17 million per year in
General Fund revenues for the City of San Bernardino. These payments would typically be
received in four payments towards the second half of the fiscal year. Since the City's
expenditures are typically constant every month, the delay in receiving property tax related
revenue creates a cash flow shortfall in the General Fund in the beginning months of the year.
The issuance of a TRAN will provide a source of funds to cover these periodic cashflow
deficits. In addition, TRAN borrowing rates are typically anywhere from 1 to 2 percentage
points below available investment rates and the difference between the borrowing rates and
the reinvestment rate (arbitrage) can be retained by the local government, provided the TRAN
is issued in accordance with federal regulations.
A second TRAN program is also available that provides funds to prepay the annual pension
costs. The Finance Department staff has reviewed this program and determined that
. participation will not provide the City with any significant benefit for FY 2007-08, therefore,
participation in this program is not recommended for 2007/08.
Financial Impact
For the cash flow TRAN, at an estimated size based on cash flow shortages of $10,000,000,
the estimated net eariJ.ings are as follows:
Interest earnings at 5.15%
Interest costs at 3.8%
Costs of Issuance, etc
$515,000
(380,000)
( 45.000)
NET EARNINGS
90,000
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Staff Report
The analysis for the TRAN for prefunding of pension costs yields no net savings in current
years earnings.
The limited amount of savings as compared to the amount of debt required to be issued does
not justify participation in this program. Since this TRANS program is taxable, the interest
rates are less favorable than the rates under the non-taxable cash-flow TRANS. This results in
much lower net savings and makes the program unfavorable to do.
The proposed cash flow TRAN would be a one-year obligation issued July 1, 2007 and due on
June 30, 2008. The City Treasurer has reviewed this financing program and concurs with the
City's participation for 2007/08.
Recommendation
Staff recommends the Mayor and City Council adopt the attached resolution which authorizes
the issuance of Tax and Revenue Anticipation Note (TRANs) in an amount not to exceed
$20,000,000. The actual TRANs issued will be computed on projected cash flows and limited
by federal tax law. The resolution also authorizes various financing documentation including
the attached purchase agreement. The resolution further authorizes the City to continue as a
member of the California Statewide Community Development Authority which is required for
participation in this TRAN.
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CITY OF SAN BERNARDINO
LOCAL AGENCY RESOLUTION
NUMBER
RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE
OF A 2007-2008 TAX AND REVENUE ANTICIPATION NOTE
THEREFORE 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 1, Division 2, Title 5 of the Government Code) to borrow money by the
issuance of temporary 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, 2008 ("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 of the 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 2007-2008; THE ISSUANCE AND SALE
OF A 2007-2008 TAX AND REVENUE ANTICIPATION NOTE
THEREFORE 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 RBC
Capital Markets, as financial advisor to the participating Issuers (the "Financial Advisor"),
together with the underwriter appointed in Section 20 hereof (the Underwriter"), 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 comprising 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 Financial Advisor 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 tax and revenue
anticipation notes issued by the Issuers comprising 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 thereof
in the Note and the Notes issued by other Issuers in such Series:
WHEREAS, as additional security for the owners of the Note Participation, 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
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING OF
FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE OF A
2007-2008 TAX AND REVENUE ANTICIPATION NOTE THEREFORE
AND PARTICIPATION IN THE CALIFORNIA COMMUNITIES CASH
FLOW FINANCING PROGRAM
credit agreement or 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 Indenture) 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
"Purchasing Agreement");
WHEREAS, the Trust Agreement provides, among other things, that for the benefit
of Owners of Note Participations and the Credit Provider, ifany, 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, in order to reduce interest
costs, it may be desirable to enter into one or more interest rate swaps; and
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:
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING OF
FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE OF A
2007-2008 TAX AND REVENUE ANTICIPATION NOTE THEREFORE
AND PARTICIPATION IN THE CALIFORNIA COMMUNITIES CASH
FLOW FINANCING PROGRAM
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 Sections 53850 et seq. of the Act, designated the Local Agency's "2007
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 twelve percent (12%) per annum as determined in the Pricing Confirmation
and indicated on the face of the Note (the "Note Rate"). If the Note as evidenced and
represented by the Series of Note Participations is secured in whole or in part by a Credit
Instrument or such Credit Instrument secures the Note in whole or in part and all principal
of and interest on the Note is not paid in full at maturity or if payment of principal of 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
(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 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 ofthe Credit Instrument divided by the aggregate
amount of unpaid principal of and interest on notes (or portions thereof) of all Issuers of
Notes comprising such Series of Note Participations, expressed as a percentage (but not
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING OF
FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE OF A
2007-2008 TAX AND REVENUE ANTICIPATION NOTE THEREFORE
AND PARTICIPATION IN THE CALIFORNIA COMMUNITIES CASH
FLOW FINANCING PROGRAM
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 of the 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 and other 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 forms to be filled in
with appropriate words and figures to be inserted or determined at closing.
Section 4. Sale of Note; Deleeation. 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 (the "Authorized Representatives") 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 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 execution and delivery for all
purposes.
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING OF
FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE OF A
2007-2008 TAX AND REVENUE ANTICIPATION NOTE THEREFORE
AND PARTICIPATION IN THE CALIFORNIA COMMUNITIES CASH
FLOW FINANCING PROGRAM
Section 5. Prol!:ram Aooroval. 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 supported
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 Representatives 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 I I 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 affirmation 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 Financial Advisor and the Underwriter are hereby authorized and
directed to cause to be mailed to prospective bidders the Preliminary Official Statement in
connection with the offering and sale ofthe Note Participations.
Anyone of the Authorized Representatives of the Local Agency is hereby
authorized and directed to provide the Financial Advisor and the Underwriter with such
information relating to the Local Agency as they shall reasonably request for inclusion in
the Preliminary Official Statement and 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 the meaning 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
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING OF
FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE OF A
2007-2008 TAX AND REVENUE ANTICIPATION NOTE THEREFORE
AND PARTICIPATION IN THE CALIFORNIA COMMUNITIES CASH
FLOW FINANCING PROGRAM
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 Financial
Advisor and the Underwriter. The Authority is hereby authorized and directed, at or after
the time of the sale of any Series of Certificates, 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 purchaser 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, if applicable, all or a portion of the Local Agency's Note, if
any, 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 ofthe Series
Note Participations will be deemed to have received such principal amount upon deposit of
such moneys with the Trustee.
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 is secured in whole or in part by a Credit Instrument, any Predefault
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING OF
FUNDS FOR FISCAL YEAR 2007-2008: THE ISSUANCE AND SALE OF A
2007-2008 TAX AND REVENUE ANTICIPATION NOTE THEREFORE
AND PARTICIPATION IN THE CALIFORNIA COMMUNITIES CASH
FLOW FINANCING PROGRAM
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 will 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 of the
costs of 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.
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING OF
FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE OF A
2007-2008 TAX AND REVENUE ANTICIPATION NOTE THEREFORE
AND PARTICIPATION IN THE CALIFORNIA COMMUNITIES CASH
FLOW FINANCING PROGRAM
Amounts in the Proceeds Subaccount are hereby pledged to the payment of the 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 Payment. 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 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 certain Umestricted 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 Replacement 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 therefor
(all as provided for in Sections 53856 and 53857 of the Act). The term "Umestricted
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 Noteholders, Owners and Credit Provider shall have a first lien
and charge on such Umestricted 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 and covenants to establish and maintain a special account within
the Local Agency's general fund to be designated the "2007 Tax and Revenue
Anticipation Note Payment Account" (the "Payment Account") and further agrees and
covenants to maintain the Payment Account until the payment of the principal of the Note
and the interest thereon. Notwithstanding the foregoing, if the Local Agency elects to
have Note proceeds invested in Permitted Investments to be held by the Trustee pursuant
to the Pricing Confirmation, a subaccount of the Payment Account (the "Payment
Subaccount") shall be established for the Local Agency under the Trust Agreement and
proceeds credited to such account shall be pledged to the payment of the Note. The
Trustee need not create a subaccount, but may keep a record to account separately for
proceeds of the Note so held and invested by the Trustee which record shall constitute the
Local Agency's Proceeds Subaccount. Transfers from the Payment Subaccount shall be
made in accordance with the Trust Agreement. The Local Agency agrees to transfer to
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING OF
FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE OF A
2007-2008 TAX AND REVENUE ANTICIPATION NOTE THEREFORE
AND PARTICIPATION IN THE CALIFORNIA COMMUNITIES CASH
FLOW FINANCING PROGRAM
and deposit 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 amounts received thereafter
attributable to Repayment Fiscal Year) until the amount on deposit in the Payment
Account, together with the amount, if any, on deposit in the Payment Subaccount, and
taking into consideration anticipated investment earnings thereon to be received by the
Maturity Date, 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. In making such transfer and deposit, the Local Agency shall not
be required to physically segregate the amounts to be transferred to and deposited in the
Payment Account from the Local Agency's other general fund moneys, but,
notwithstanding any commingling of funds for investment or other purposes, the amounts
required to be transferred to and deposited in the Payment Account shall nevertheless be
subject to the lien and charge created herein.
Anyone of the Authorized Representatives 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
and/or the Payment Subaccount 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 or the Payment Subaccount shall be
for the benefit of (i) the holder of the Note and the owner of the Note and (ii) (to the
extent provided in the Indenture) the Credit Provider, if any. The moneys in the Payment
Account and the Payment Subaccount shall be applied only for the purposes for which
such Accounts are 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, if applicable, (to the extent
provided in the Indenture and, if applicable, the Credit Agreement) the payment of all
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING OF
FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE OF A
2007-2008 TAX AND REVENUE ANTICIPATION NOTE THEREFORE
AND PARTICIPATION IN THE CALIFORNIA COMMUNITIES CASH
FLOW FINANCING PROGRAM
PredefauIt 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 Subaccount
to the Note Participation Payment Fund (as defined in the Trust Agreement). In addition,
on the Note Payment Deposit Date, the moneys in the Payment Account shan be
transferred by the Local Agency to the Trustee, to the extent necessary (after crediting any
transfer pursuant to the preceding sentence), to pay the principal of and/or interest on the
Note, to make payments to a Swap Provider, if any, as defined in the Trust Agreement,
pursuant to a Swap Agreement, if any, as defined in the Trust Agreement, or to reimburse
the Credit Provider for payments made under or pursuant to the Credit Instrument. In the
event that moneys in the Payment Account and/or the Payment Subaccount are insufficient
to pay the principal of and interest on the Note in fun when due, such moneys shan be
applied in the fonowing priority: first to pay interest on the Note; second to pay principal
of the Note; third to reimburse the Credit Provider for 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 PredefauIt Obligations
owing to the Credit Provider. Any moneys remaining in or accruing to the Payment
Account and/or the Payment Subaccount after the principal of the Note and the interest
thereon and any PredefauIt Obligations and Reimbursement Obligations, if applicable,
have been paid, or provision for such payment has been made, shan 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 shan 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 Subaccount shan 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 shan be for the account and risk of the Local Agency, and
the Local Agency shan not be deemed to be relieved of any of its obligations with respect
to the Note, the PredefauIt Obligations or Reimbursement Obligations, if any, by reason of
such investment of the moneys in its Proceeds Subaccount or the Payment Subaccount.
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 fonowing 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.
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING OF
FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE OF A
2007-2008 TAX AND REVENUE ANTICIPATION NOTE THEREFORE
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 ofthe 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 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 to (i) adopt this
Resolution and perform its obligations thereunder, (ii) enter into and perform its
obligations under the Purchase Agreement, and (iii) 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 do 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
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING OF
FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE OF A
2007-2008 TAX AND REVENUE ANTICIPATION NOTE THEREFORE
AND PARTICIPATION IN THE CALIFORNIA COMMUNITIES CASH
FLOW FINANCING PROGRAM
Resolution, except those the Local Agency shall obtain or perform prior to or upon the
issuance of the Note.
(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, the Financial Advisor 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 Financial Advisor and
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
Financial Advisor, 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 Indenture, the Credit
Agreement, if any, or this Resolution, or seeking to prohibit, restrain or enjoin the
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING OF
FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE OF A
2007-2008 TAX AND REVENUE ANTICIPATION NOTE THEREFORE
AND PARTICIPATION IN THE CALIFORNIA COMMUNITIES CASH
FLOW FINANCING PROGRAM
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 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 California.
(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 Bonds issued 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 Indenture.
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING OF
FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE OF A
2007-2008 TAX AND REVENUE ANTICIPATION NOTE THEREFORE
AND PARTICIPATION IN THE CALIFORNIA COMMUNITIES CASH
FLOW FINANCING PROGRAM
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 shall 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 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 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 2007, 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 of the Note so as to satisfy the requirements of Section
l48(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 11, no one other than the holders or former holders of the Note, the owners of
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.
The covenants contained in this Section 11 shall survive the payment of the Note.
The provisions ofthis Section 11 shall not apply to a Taxable Note.
Section 12. Events of Default and Remedies.
If any of the following events occurs, it is hereby defined as and declared to be and
to constitute an "Event of Default";
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE
OF A 2007-2008 TAX AND REVENUE ANTICIPATION NOTE
THEREFORE AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
(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
Confinnation) 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 thirty (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 any jurisdiction, whether now or
hereafter in effect, or consents to the filing of any petition against it under such law; or
(f) 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 thirty (30) days to protect its and the Owners'
interests;
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE
OF A 2007-2008 TAX AND REVENUE ANTICIPATION NOTE
THEREFORE AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
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 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.
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE
OF A 2007-2008 TAX AND REVENUE ANTICIPATION NOTE
THEREFORE AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
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 the 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. The
Authorized Representatives of the Local Agency referred to above in Section 4 hereof are
hereby designated as "Authorized Local Agency Representatives" under the Trust
Agreement.
In the event that the Note or a portion thereof is secured by a Credit Instrument,
anyone of the Authorized Representatives 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 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.
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE
OF A 2007-2008 TAX AND REVENUE ANTICIPATION NOTE
THEREFORE AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
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 ofthe 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 owners of the Note or of the Note Participations executed and delivered in
connection with the Notes.
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
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING OF
FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE OF A
2007-2008 TAX AND REVENUE ANTICIPATION NOTE THEREFORE
AND PARTICIPATION IN THE CALIFORNIA COMMUNITIES CASH
FLOW FINANCING PROGRAM
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 Participation 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 modit'y any
of the 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 Financial Advisor and Underwriter. The Local
Agency approves and consents to the appointment of RBC Dain Rauscher, Inc., Los
Angeles, California as Financial Advisor for the Program. The Local Agency approves
the consents to the appointment of Lehman Brothers, Inc., together with such co-
underwriters, if any, identified in the Purchase Contract, as Underwriter for the Program.
The Authority is hereby authorized and directed, for and in the name and on behalf of the
Local Agency, to execute an Agreement to provide financial advisor services with the
Financial Advisor, in substantially the form of such agreement presented to this meeting.
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING OF
FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE OF A
2007-2008 TAX AND REVENUE ANTICIPATION NOTE THEREFORE
AND PARTICIPATION IN THE CALIFORNIA COMMUNITIES CASH
FLOW FINANCING PROGRAM
Section 21. Resolution Parameters.
(A) Name of Local Agency: City of San Bernardino
(B) Maximum Amount of Borrowing: $20,000,000
(C) Authorized Representatives:
TITLE
1. Mayor
2. City Clerk
3. City Manager
] 5 Section 22. Effective Date. This Resolution shall take effect from and after its
16 date of adoption.
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III
III
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING OF
FUNDS FOR FISCAL YEAR 2007-2008; THE ISSUANCE AND SALE OF A
2007-2008 TAX AND REVENUE ANTICIPATION NOTE THEREFORE
AND PARTICIPATION IN THE CALIFORNIA COMMUNITIES CASH
FLOW FINANCING PROGRAM
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
Mayor and Common Council of the City of San Bernardino at a
meeting
thereof, held on the
, 2007 by the following vote, to
day of
wit:
Council Members: AYES
NAYS
ABSTAIN ABSENT
ESTRADA
BAXTER
BRINKER
DERRY
KELLEY
JOHNSON
MCCAMMACK
Rachel G. Clark, City Clerk
The foregoing resolution is hereby approved this _ day of
,2007.
Patrick J. Morris, Mayor
City of San Bernardino
Approved as to Form:
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EXHIBIT A
CITY OF SAN BERNARDINO
2007 TAX AND REVENUE ANTICIPATION NOTE, SERIES A *
Interest Rate
Maturitv Date
Date of
Ori ginal Issue
First
Repayment Date
Second
Repayment Date
Third
Repayment Date
_% (Total of
Principal and
interest due on
Note at maturity)
_%(Totalof
principal and
interest due on
Note at maturity)
_%(Total of
principal and
interest due on
Note at maturity)**
REGISTERED OWNER:
PRINCIPAL AMOUNT:
FOR VALUE RECEIVED, the Local Agency designated above (the "Local
Agency"), acknowledges itself indebted to 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 rate of
interest 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 thereof until
the maturity date specified above and, if funds are not provided for payment at maturity,
~/
If more than one Series is issued under the Program in the Repayment Fiscal Year.
**/ Number of Repayment Dates and percentages to be determined in Pricing
Confirmation (as defined in the Resolution).
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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 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
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 I, 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 ofthe 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 therefor
as set forth in the Resolution. The full faith and credit of the Local Agency is not pledged
to the payment ofthe principal of 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 of the State of California.
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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 ofthis Note
do exist, have happened and have been performed in due time, form and manner as
required by the Constitution and statues 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 of the State of California.
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:
15 Title:
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2 EXHIBIT A
3
CITY OF SAN BERNARDINO
4
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6 2007 TAX AND REVENUE ANTICIPATION NOTE, SERIES A*
7
8 Date of
Interest Rate Maturity Date Original Issue
9
10
First Second Third
11 Repayment Date Repayment Date Repayment Date
12
(Total of _%(Total of _%(Total of
13 Principal and principal and principal and
interest due on interest due on interest due on
14 Note at maturity) Note at maturity) Note at maturity)**
15
10 REGISTERED OWNER:
17 PRINCIPAL AMOUNT:
18 FOR VALUE RECEIVED, the Local Agency designated above (the "Local
Agency"), acknowledges itself indebted to and promises to pay to the registered owner
19 identified above, or registered assigns, on the maturity date set forth above, the principal
20 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 rate of
21 interest 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
22 tender for payment of private and public debts, such principal to be paid upon surrender
23 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
24 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 thereof until
25 the maturity date specified above and, if funds are not provided for payment at maturity,
26
27 */ If more than one Series is issued under the Program in the Repayment Fiscal Year.
28
Number of Repayment Dates and percentages to be determined in Pricing
Confirmation(as defined in the Resolution).
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2 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
3 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
4 the holder hereof fails to properly present this Note for payment. If the Local Agency fails
to pay this Note when due or the Credit Provider (as defined in the Resolution hereinafter
5 described), if any, is not reimbursed in full for the amount drawn on or paid pursuant to
6 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
7 the consequences set forth in the Resolution).
8 It is hereby certified,recited and declared that this Note (the "Note")represents the
9 authorized issue of the Note in the aggregate principal amount made, executed and
pursuant to and by authority of certain resolutions of the Legislative Body of the Local
10 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
11 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.
12
13 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
14 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.
15 As security for the payment of the principal of and interest on the Note, the Local Agency
16 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
17 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
18 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
19 Confirmation (such pledged amounts being hereinafter called the "Pledged Revenues"),
20 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
21 paid shall be paid from any other moneys of the Local Agency lawfully available therefor
as set forth in the Resolution. The full faith and credit of the Local Agency is not pledged
22 to the payment of the principal of or interest on this Note.
23 The Local Agency and the Trustee may deem and treat the registered owner hereof
24 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
25 and the Trustee shall not be affected by any notice to the contrary.
26 It is hereby certified that all of the conditions, things and acts required to exist, to
27 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
28 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 of the State of California.
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2 It is hereby certified that all of the conditions,things and acts required to exist, to
J 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
4 required by the Constitution and statues 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
5 limit prescribed by the Constitution or statutes of the State of California.
6 IN WITNESS WHEREOF, the Legislative Body of the Local Agency has caused
7 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
8 signature of the Secretary or Clerk of the Legislative Body as of the date of authentication
9 set forth below.
10 CITY OF SAN BERNARDINO
11
By:
12 Title:
13 Countersigned
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By:
15 Title:
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