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HomeMy WebLinkAboutLetter of Representation- City of Buena Park LETTER OF REPRESENTATION [CITY OF BUENA PARK] July 16, 1996 Stone& Youngberg LLC 4350 La Jolla Village Drive Suite 840 San Diego, California 92122 Countywide Public Financing Authority c/o City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92701 Re: Countywide Public Financing Authority 1996 Revenue Bonds Dear Ladies and Gentlemen: The Countywide Public Financing Authority (the "Authority") and the undersigned City (the "Member") propose to enter into a Lease Agreement to be dated as of July 1, 1996 (the "Lease Agreement") and a Site and Facility Lease to be dated as of July 1, 1996 (the "Site Lease") to provide security for the Bonds (as hereinafter defined), which are being issued to finance the acquisition, construction and installation of a portion of the Orange County Countywide 800 MHz communications system as described in the Official Statement (hereinafter mentioned), and to finance certain capital improvements of the members of the Authority (the "Members") throughout the geographic boundaries of such Members (collectively, the "Project"). Pursuant to a Bond Purchase Agreement between Stone& Youngberg LLC (the "Underwriter") and the Authority, dated the date hereof(the "Purchase Contract"), the Underwriter proposes to purchase the Countywide Public Financing Authority 1996 Revenue Bonds in the amount stated in the Purchase Contract (the "Bonds"). This Letter of Representation is being delivered pursuant to the Purchase Contract and all capitalized terms not defined herein shall have the meanings given to such terms in the Purchase Contract. In order to induce you to enter into the Purchase Contract and to permit the Underwriter to make a public offering of the Bonds therein contemplated, the Member hereby represents, warrants, covenants and agrees as follows, the provisions of paragraphs (a) through (1) being true as of the date hereof: (a) Due Organization, Existence and Authority of the Member. The Member is duly organized and validly existing as a general law city and municipal corporation of the State of California (the "State"), and the Member has, and on the Closing Date will have, the full legal right, power and authority to (i) execute and deliver its Member Documents and to approve the Official Statement and the Purchase Contract, (ii) perform its obligations and engage in the transactions contemplated by the Member Documents, the Purchase Agreement and the Official Statement, (iii) to adopt the resolutions approving its Member Documents, the Official Statement and the Purchase Contract. (b) Due Authorization and Approval by the Member. By all necessary action, the Member has duly authorized and approved the execution and delivery by the Member of, and the performance by the Authority of the obligations on its part contained in its Member Documents, the Official Statement and the Purchase Contract and, as of the date hereof, such authorization and approvals are in full force and effect and have not been amended, modified or rescinded. When executed and delivered by the respective parties thereto, its Member Documents will constitute the legal, valid and binding obligations of the Member enforceable against the Member in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other laws affecting enforcement of creditors' rights. (c) Use of the Official Statement. The Member hereby authorizes the use of the Official Statement in connection with the public offering and sale of the Bonds. The Member also consents to the use by the Underwriter prior to the date hereof of the Preliminary Official Statement of the Authority, dated July 10, 1996, relating to the Bonds (which, together with all appendices thereto, is herein called the "Preliminary Official Statement") in connection with the public offering of the Bonds. The Member hereby ratifies the use by the Underwriter of the Preliminary Official Statement, its Member Documents and any other documents or contracts to which the Member is a party and all information contained therein, and all other documents, certificates, and statements furnished by the Member to the Underwriter in connection with the transactions contemplated by the Purchase Contract, or in connection with the offer and sale of the Bonds by the Underwriter. The Member represents that the Preliminary Official Statement (excluding those portions of Appendix B to the Preliminary Official Statement that describe the other Members of the Authority), at the time of its distribution by the Underwriter, was and is a "final" Official Statement within the meaning of Rule 15c2-12, except for the omission of no more than the following information: the offering price(s), interest rate(s), selling compensation, aggregate principal amounts, principal amount per maturity, redemption provisions and delivery dates. In addition, the Member will cooperate with the Underwriter in transforming the Preliminary Official Statement into a final Official Statement. (d) Official Statement Accurate. At the date of execution by the Member of this Letter of Representation, the statements contained in the Preliminary Official Statement, dated July 10, 1996 and the Official Statement, dated the date hereof relating to the Bonds (excluding the information contained in Appendix B to the Preliminary Official Statement and Official Statement that describes the other Members of the Authority), is true and correct in all material respects for the purposes for which their use is or was authorized; and such statements (excluding the information contained in Appendix B to the Preliminary Official Statement and the Official Statement that describes the other Members of the Authority) do not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements made in such sections in light of the circumstances under which they are or were made, not misleading. Neither this Letter of Representation nor any other document, certificate or written statement furnished to the Underwriter or the Authority by or relating to the Member contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein, under the circumstances under which they are or were made, not misleading. 2 (e) Consents to Amendments and Supplement to the Official Statement. The Member shall not participate in the issuance of any amendment of or supplement to the Official Statement to which, after having been furnished with a copy, the Underwriter shall object in writing or which shall be disapproved by its counsel. (t) Agreement to Assist in the Amendment or Supplement of the Official Statement. If, at any time within ninety (90) days after the later of the Closing Date or the end of the underwriting period, any event relating to or affecting the Member, the real property and facilities subject to the Site Lease and the Lease Agreement, or its portion of the Project shall occur as a result of which it is necessary, in the opinion of counsel for the Underwriter, to amend or supplement the Official Statement in order to make the Official Statement not misleading in the light of the circumstances existing at the date of Closing, the Member will take whatever steps are necessary to assist the Authority in preparing and furnishing to the Underwriter an amendment or a supplement to • the Official Statement (in form and substance satisfactory to counsel for the Underwriter) which will amend or supplement the Official Statement so that it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Official Statement is delivered to a purchaser, not misleading. The Underwriter shall promptly notify the Authority of the end of the underwriting period. (g) No Breach or Default. As of the time of acceptance hereof and as of the Closing Date, except as otherwise disclosed in the Official Statement, (i) the Member is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Member is a party or is otherwise subject, and (ii) no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or event of default under any such instrument which breach, default or event described under (i) or (ii) of this subparagraph could have an adverse effect on the ability of the Member to perform its obligations under its Member Documents or in connection with the construction and acquisition of the Member's portion of the Project; and, as of such times, except as disclosed in the Official Statement, the authorization, execution and delivery of its Member Documents and compliance by the Member with the provisions of each of such agreements or instruments does not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment, decree, license, permit, trust agreement,loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Member (or any of its respective officers) is subject, or by which it or any of its properties are bound, nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by its Member Documents. (h) No Litigation. At the time of acceptance hereof and as of the Closing Date, there is and will be no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body (collectively and individually, an "Action") pending with respect to which the Member has been served with process or to the best knowledge of the officer of the Member executing this Letter of Representation, threatened, in which any such Action (i) in any way questions the formation or existence of the Member or the titles of the officers 3 of the Member to their respective offices; (ii) affects, contests or seeks to prohibit, restrain or enjoin the issuance or delivery of any of the Bonds or its Member Documents, or the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contests or affects the validity of its Member Documents or the consummation of the transactions on the part of the Member contemplated thereby, or contests the exclusion of the interest on the Bonds from federal or state income taxation or contests the powers of the Member, or the Member's authority to make the payments due under its Lease Agreement; (iii) which may result in any material adverse change relating to the financial condition of the Member; or (iv) contests the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserts that the Preliminary Official Statement or the Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and as of the time of acceptance hereof and as of the Closing Date, to the knowledge of the officer of the Member executing this Letter of Representation, there is no basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this sentence. (i) Consents and Approvals. All authorizations, approvals, licenses, permits, consents, elections, and orders of or filings with any governmental authority, legislative body, board, agency or commission having jurisdiction in the matters which are required by Closing Date for the due authorization of, which would constitute a condition precedent to or the absence of which would adversely affect the due performance by the Member of its obligations in connection with its Member Documents have been duly obtained or made and are in full force and effect. (j) Opinions and Certificates Required for Closing. The Member will deliver all opinions, certificates, letters and other instruments and documents reasonably required by the Underwriter and this Letter of Representation. Any certificate of the Member delivered to the Underwriter shall be deemed a representation and warranty by the Member to the Underwriter as to the statements made therein. (k) Indemnification. (i) The Member agrees, to the extent permitted by law, to indemnify and hold harmless the Underwriter and the Authority and their respective officers and employees and each person who controls the Underwriter within the meaning of Section 15 of the Securities Act of 1933 (as an "Indemnified Person") from and against any losses, claims, damages or liabilities,joint or several, to which any Indemnified Person may become subject insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of, or are based upon, the misstatement or omission or alleged misstatement or omission to state a material fact in the Official Statement necessary to make the statements therein under the caption not misleading, and will reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified Person in investigating, defending or preparing to defend any such action or claim; provided, however, that the Member shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Official Statement in reliance upon and in conformity with written information furnished by or on behalf of any Indemnified Person, or any information furnished with respect to the Underwriter specifically for inclusion therein. 4 (ii) Promptly after receipt by an Indemnified Person under paragraph (i) of this Paragraph of notice of the commencement of any action, such Indemnified Person shall, if a claim in respect thereof is to be made against the Member under such paragraph, notify the Member in writing of the commencement thereof. In case any such action shall be brought against any Indemnified Person, and such Indemnified Person shall notify the Member of the commencement thereof, the Member shall be entitled to participate in and, to the extent that either wishes, to assume the defense thereof, with counsel satisfactory to such Indemnified Person, and after notice from the Member to such Indemnified Person of its election so to assume the defense thereof, the Member shall not be liable to such Indemnified Person under such paragraph for any legal or other expenses subsequently incurred by such Indemnified Person in connection with the defense thereof other than reasonable costs of any investigation; provided, however, that if the named parties to any such action (including any impleaded parties) include the Indemnified Person and the Member, and the Indemnified Persons reasonably conclude that there may be one or more legal defenses available to them which are different from or additional to those available to the Member, the Indemnified Persons shall have the right to select separate counsel (acceptable to the Member) to assume such legal defense and to otherwise participate in the defense of such action on behalf of the Indemnified Persons; provided, further, however, that the Member shall not, in connection with any one such action or separate but substantially similar or related actions arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys at any point in time for the Indemnified Persons. The representations, warranties, agreements and indemnities contained herein shall survive the Closing under the Purchase Contract and any investigation made by or on behalf of the Authority or the Underwriter or any such director, officer or any such controlling person of any matters described in or related to the transactions contemplated hereby and by the Purchase Contract, the Official Statement and the Member Documents. This Letter of Representation shall be binding upon and inure solely to the benefit of the Underwriter, the Authority, the Member and any such member, officer, director or any such controlling person, and their respective personal representatives, successors and assigns, and no other person or firm shall acquire or have any right under or by virtue of this letter agreement. This Letter of Representation may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument, which shall be governed by laws of the State of California. 5 If the foregoing is in accordance with the understanding of the Authority and the Underwriter of the agreement between us, kindly sign and return to the Member the enclosed duplicate of this letter agreement whereupon this will constitute a binding agreement between us in accordance with the terms hereof. CITY OF BUENA PARK ByAwc��.� k Authorizes Signatory Accepted and confirmed as of the date first above written: STONE & YOUNGBERG LLC By Principal COUNTYWIDE PUBLIC FINANCING AUTHORITY By Treasurer [279048] 6 If the foregoing is in accordance with the understanding of the Authority and the Underwriter of the agreement between us, kindly sign and return to the Member the enclosed duplicate of this letter agreement whereupon this will constitute a binding agreement between us in accordance with the terms hereof. CITY OF BUENA PARK By Authorized Signatory Accepted and confirmed as of the date first above written: STONEE & YOUNGBERG LLC By //leicte4...-1 Principal COUNTYWIDE PUBLIC FINANCING AUTHORITY By : e surer [279048] 6