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HomeMy WebLinkAboutSAFA & CITIGROUP GLOBAL (2) - 2004 A-2004-024 COpy f' SANTA ANAIBPA 1'30.04 DRAFT $20,110,000 SANTA ANA FINANCING AUTHORITY WATER REFUNDING REVENUE BONDS, SERIES 2004 (payable Solely from Installment Payments Secured by Water System Net Revenues) BOND PURCHASE AGREEMENT February 5, 2004 Santa Ana Financing Authority 20 Civic Center Plaza Santa Ana, CA 92701 City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 Ladies and Gentlemen: Kinsell, Newcomb & DeDios, Inc. (the "Underwriter"), acting not as fiduciary or agent for you, but on behalf of itself, offers to enter into this agreement (the "Bond Purchase Agreement") with the Santa Ana Financing Authority (the "Authority") and with City of Santa Ana (the "City") which, upon your acceptance of this offer, will be binding upon you and upon the Underwriter. 11ús offer is made subject to your acceptance of this Bond Purchase Agreement on or before 5:00 p.m., California time, on February 5, 2004 and, if this Bond Purchase Agreement is not so accepted, will be subject to withdrawal by the Underwriter upon notice delivered to your office at any time prior to acceptance hereof by you. I. Purchase and Sale of Bonds. Upon the terms and conditions and upon the basis of the representations and warranties set forth herein, the Underwriter hereby agrees to purchase from the Authority, and the Authority hereby agrees to sell to the Underwriter, an aggregate principal amount of $20,110,000 of the Authority's Water Refunding Revenue Bonds, Series 2004 (Payable Solely from Installment Payments Secured by Water System Net Revenues) (the "Bonds"). The aggregate purchase price to be paid by the Underwriter for the Bonds is hereby agreed to be $20,613,316.00, which amount represents the principal amount of the Bonds plus a reoffering premium of $603,866.00, less $100,550.00 representing the Underwriter's discount (such payment and delivery and the other actions contemplated hereby to take place at the time of such payment and delivery being herein sometimes called the "Closing"). The Bonds shall be dated the date of delivery thereof and shall mature on the dates and in the amounts and shall bear interest at the rates per annum shown in Appendix A hereto. 2. The Official Statement; Continuing Disclosure. The Authority and the City hereby ratify the use by the Underwriter, prior to the date hereof, of the Preliminary Official Statement of the Authority and the City, dated January 28, 2004, relating to the Bonds provided by the Authority and the City to the Underwriter (the "Preliminary Official Statement") in connection with the public offering of the Bonds. The Authority and the City each confirm that, as of its date, the Preliminary Official Statement was "deemed final" by it for purposes of Rule 15c2- 12(b)(I) of the Securities and Exchange Commission. The Authority and the City agree to revise the Preliminary Official Statement to include information relating to the terms of the Bonds and the sources and uses of funds (with such changes, the "Official Statement"). The Authority and the City agree to deliver to the Underwriter, at such addresses as the Underwriter shall specify, as many copies of the Official Statement as the Underwriter shall reasonably request as necessary to comply with paragraph (b)(4) of the Rule and with Rule G-32 and all other applicable rules of the Municipal Securities Rulemaking Board. The Authority and the City agree to deliver such Official Statements within seven business days after the execution of this Bond Purchase Agreement. The Authority and the City hereby authorize the Underwriter to use and distribute the Official Statement, and all other documents, certificates and statements furnished by them to the Underwriter in connection with the transaction contemplated by this Bond Purchase Agreement, in connection with the offer and sale of the Bonds. Prior to the earlier of (i) receipt of notice from the Underwriter that Official Statements are no longer required under Rule 15c2-12 of the Securities Exchange Commission or (ii) 25 days after the end of the underwriting period (defined below), the City shall provide the Underwriter with such information regarding the City, its current financial condition and ongoing operations as the Underwriter may reasonably request. The term "end of the underwriting period" means the later of (i) the date the Authority delivers the Bonds to the Underwriter or (ii) the date the Underwriter does not retain an unsold balance of the Bonds for sale to the public. The Underwriter agrees to notify the City of the date constituting the end of the underwriting period. The Underwriter agrees to file a copy of the Official Statement with a nationally recognized municipal securities information repository not later than the business day following the Underwriter's receipt of printed copies of the Official Statement. The City will undertake, pursuant to a Continuing Disclosure Certificate, dated as of February I, 2004 (the "Continuing Disclosure Certificate"), to provide certain annual financial and operating data and notices of certain material events, as described in Appendix F - "FORM OF CONTINUING DISCLOSURE CERTIFICATE" ofthe Official Statement. 3. The Bonds. The Bonds shall be described in, and shall be issued and secured under the provisions of a resolution adopted by the Authority on January 20, 2004 (the "Authority Resolution"), and an Indenture dated as of February I, 2004 (the "Indenture"), by and between the Authority and BNY Western Trust Company, as trustee (the "Trustee"). The Authority and the City hereby authorize the Underwriter to use and distribute the. Authority Resolution, the Indenture and the information contained in such documents in connection with the public offering and the sale of the Bonds. The principal of, premium, if any, and interest on the Bonds shall be payable as provided in the Authority Resolution, the Indenture and the Official Statement. The Bonds will be secured by the Master Installment Purchase Agreement, dated as 2 f' f of February 1, 2004 (the "Master Installment Purchase Agreement"), by and between the City and the Authority, and the First Supplement to Master Installment Purchase Agreement, dated as of February 1, 2004 (the "First Supplement" and together with the Master Installment Purchase Agreement, the "Installment Purchase Agreement"), between the City and the Authority. The issuance of the Bonds by the Authority was approved by a resolution adopted by the City Council of the City on January 20,2004 (the "City Resolution"). The Bonds are being issued to finance the prepayment of component installment payments (the "1994 Installment Payments"} payable by the City under the Master Installment Purchase Agreement, dated as of August 1, 1994 (the "Prior Master Installment Purchase Agreement"), between the City and the Authority, and the First Supplement to Master Installment Purchase Agreement, dated as of August 1, 1994, between the City and the Authority (the "Prior Supplement") and pertaining to the City's water system (the "Water System"), and the related redemption on April 1, 2004 (the "Redemption Date"}, of the remaining outstanding Water Revenue Bonds, Series 1994 (payable Solely from Installment Payments Secured by Water System Net Revenues) (the "Series 1994 Bonds") of the Authority issued upon the security of the 1994 Installment Sale Payments (collectively, the prepayment of the 1994 Installment Sale Payments and related refunding of the Series 1994 Bonds hereafter referred to as the "2004 Refinancing"). In addition, the proceeds of the Bonds will purchase a reserve surety bond for the debt service reserve fund, finance certain improvements to the Water System of the City, and finance certain costs of issuance ofthe Bonds. The 1994 Installment Payments and the Series 1994 Bonds will be defeased in accordance with the terms of an Escrow Agreement, dated as of February 1, 2004 (the "Escrow Agreernent"), among the Authority, the City and BNY Western Trust Company, as escrow bank (the "Escrow Agent"). Payment of the principal of and interest on the Bonds when due, will be insured by a municipal bond insurance policy (the "Bond Insurance") to be issued by MBIA Insurance Corporation (the "Bond Insurer") simultaneously with the delivery of the Bonds. Simultaneously with the delivery of the Bonds, the Bond Insurer will also issue a reserve surety bond (the "Reserve Account Surety Bond") in an amount equal to the Reserve Requirement (as defined in the Indenture). 4. Authority's Obligation. It shall be a condition to the Authority's obligation to sell and to deliver the Bonds to the Underwriter and to the obligation of the Underwriter to purchase, to accept delivery of and to pay for the Bonds that the entire $20,110,000 principal amount of the Bonds as authorized by the Authority Resolution shall be sold and delivered by the Authority and accepted and paid for by the Underwriter at the Closing. The Underwriter may change the offering prices of the Bonds from time to time at any time. The obligation of the Authority to sell and deliver the Bonds to the Underwriter shall also be conditioned upon the delivery by Orrick, Herrington & Sutcliffe LLP, Bond Counsel, of its approving legal opinion with respect to the Bonds in substantially the form attached to the Official Statement. 5. Representations, Warranties and Agreements of the Authority. The Authority represents and warrants to, and covenants and agrees with, the Underwriter that: 3 (a) Due Organization. The Authority is a public entity created for the joint exercise of cornmon powers pursuant to a Joint Exercise of Powers Agreement dated August 1, 1993 by and between the Community Redevelopment Agency of the City of Santa Ana and the City (the "Members") under the powers granted such Members pursuant to Sections 6500, et seq., Title I, Division 7, Chapter 5, Article 1 of the California Government Code (the "Act"), and the Authority has, and at the time of the Closing will have, full legal right, power and authority (i) to execute and enter into this Bond Purchase Agreement, the Indenture, the Installment Purchase Agreement and the Escrow Agreement (collectively, the "Authority Agreements"), (ii) to adopt the Authority Resolution, (iii) to issue, sell and deliver the Bonds to the Underwriter pursuant to the Constitution and laws of the State of California (the "State"), particularly the Act, (iv) to issue, sell, execute and deliver the Bonds and (v) to carry out and to consummate the transactions contemplated by, and to perform all of its obligations under, the Authority Agreements, the Authority Resolution and the Official Statement. (b) Due Authorization, Execution and Delivery. The Authority has (i) duly authorized and approved the Official Statement, (ii) duly authorized and approved the execution and delivery of, and performance by the Authority of its obligations under, the Bonds and the Authority Agreements, (iii) duly authorized and approved the performance by the Authority of its obligations under the Authority Resolution and the Authority Agreements and the consummation by it of all other transactions contemplated by the Official Statement and (iv) duly authorized and adopted the Authority Resolution. (c) Due Execution and Delivery of Bonds. At or prior to the Closing, the Bonds will have been duly executed and delivered by the Authority, and each of them and the Authority Resolution and the Authority Agreements will constitute legal, valid and binding obligations of the Authority enforceable against the Authority in accordance with their respective terms, except to the extent that the enforceability may be limited by bankruptcy or other laws affecting the rights of creditors generally and except that equitable remedies lie in the discretion of the court and may not be available. (d) No Conflicts. The issuance, sale, execution and delivery of the Bonds, the execution and delivery of the Authority Agreements and the adoption of the Authority Resolution and compliance with the provisions of each thereof do not and will not violate or constitute a breach of or default under any applicable constitution, law or adrninistrative regulation of the State or the United States or any applicable judgment or decree or any agreement, indenture, commitment, contract or other instrument to which the Authority is a party or is otherwise subject. (e) Official Statement. The Preliminary Official Statement does not, and the Official Statement as the date hereof and on the date of Closing will not, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein in light of the circumstances under which they were made, not misleading. The Authority Resolution, the Authority Agreements and the Bonds referred to in the Official Statement will, at the Closing, confonn in all material respects to the descriptions thereof in the Official Statement. 4 (f) No Litigation. No controversy or litigation of any nature is now pending or, to the best of the Authority's knowledge, threatened in any court or before any governmental agency: (i) restraining or enjoining, or seeking to restrain or enjoin, the issuance, sale, execution or delivery of the Bonds, or (ii) in any way contesting or affecting (A) the validity or enforceability . of the Bonds, (B) any proceedings of or on behalf of the Authority taken with respect to the issuance or sale of the Bonds, (C) the execution of the Authority Agreements or the execution or adoption of the Authority Resolution, (D) the pledge of revenues effected by the Authority Resolution and the Indenture, as described in the Official Statement, or (E) the existence or powers of the Authority, or (iii) in any manner questioning (A) the proceedings or authority for the issuance of the Bonds, or (B) any provision made or authorized for the payment of the Bonds, or (C) the existence or operations of the Authority, or (D) the power of the Authority to issue the Bonds, or (E) the power of the Authority to undertake any other transactions contemplated by the Official Statement; or (iv) which would have a material adverse effect upon the Authority relating to the Bonds or to the contemplated use of the proceeds thereof; and none of the Authority's proceedings or authority for the issuance, sale, execution and delivery of the Bonds, or the execution and delivery of the Authority Agreements or the adoption of the Authority Resolution as described in the Official Statement has been repealed, modified, amended, revoked or rescinded. (g) Blue Sky. The Authority will furnish such information, execute such instruments and take such other action in cooperation with the Underwriter, as the Underwriter may reasonably request, to qualify the Bonds for offer and sale under the Blue Sky or securities laws and regulations of sum states and other jurisdictions of the United States as the Underwriter may designate. (h) All Consents Obtained. All approvals and consents of the Authority which would constitute a condition precedent to the performance by the Authority of its obligations hereunder and under the Authority Resolution, the Authority Agreements and the Bonds have been obtained and are in full force and effect. No other authorization, consent or approvaJ of, or filing or registration with, any Governmental Authority (as defined below) or court is, or under existing requirements oflaw will be, necessary for the valid execution, delivery or performance by the Authority hereof other than any authorization, consent, approval, filing or registration as may be required under the Blue Sky or securities laws of any state in connection with the offering, sale or issuance of the Bonds. AU authorizations, consents or approvals of, or filings or registrations with any Governmental Authority or court necessary for the valid issuance of, and performance by the Authority of its obligations under, the Bonds will have been duly obtained or rnade 5 prior to the issuance of the Bonds (and disclosed to the Underwriter). As used herein, the term "Governmental Authority" refers to any legislative body or governmental official, department, commission, board, bureau, agency, instrumentality, body or public benefit corporation. (i) No Defaults. The Authority has not, since its creation, been declared to be in default in the payment of principal of, premium, if any, or interest on, or otherwise been declared to be in default with respect to, any bonds, notes or other obligations which it has issued, assumed or guaranteed as to payment of principal, premium, if any, or interest. G) No Other Offers. Neither the Authority nor anyone authorized to act on its behalf, directly or indirectly, has offered the Bonds for sale to, or solicited any offer to buy the Bonds from, anyone other than the Underwriter. (k) Covenant to Notify. If, at any time prior to the earlier of (i) receipt of notice from the Underwriter pursuant to Section 2 hereof that Official Statements are no longer required to be delivered under the Rule or (ii) 25 days after the end of the underwriting period, any event occurs with respect to the Authority as a result of which the Official Statement as then amended or supplemented might include an untrue statement of a material fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Authority shall promptly notify the Underwriter in writing of such event and, if in the opinion of the Underwriter, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the Authority will at its expense supplement or amend the Official Statement in a form and manner approved by the Underwriter. Any information supplied by the Authority for inclusion in any amendments or supplements to the Official Statement will not contain any untrue or misleading statement of a material fact relating to the Authority or omit to state any material fact relating to the Authority required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (I) Certificates. Any certificate signed by any official of the Authority and delivered to the Underwriter shall be deemed a representation and warranty by the Authority to the Underwriter as to the truth of the statements therein contained. (m)Conformity. The Bonds will be issued in accordance with the Authority Resolution and the Indenture and will conform in all material respects to the descriptions thereof contained in the Official Statement. 6. Representations, Warranties and Agreements of the City. The City represents and warrants to, and covenants and agrees with, the Underwriter that: (a) Due Organization. The City is a charter city and municipal corporation of the State, duly organized and validly pursuant to the provisions of the Constitution and the laws of the State and its Charter; the City has, and at the time ofthe Closing will have, full legal right, power and authority (i) to execute and enter into this Bond Purchase 6 t , Agreement, the Installment Purchase Agreement and the Escrow Agreement (collectively, the "City Agreements"}, (H) to adopt the City Resolution, (Hi) to prepay the 1994 Installment Payments, and (iv) to carry out and to consummate the transactions contemplated by, and to perform all of its obligations under, the City Agreements, the City Resolution and the Official Statement. (b) Due Authorization, Execution and Delivery. The City has (i) duly authorized and approved the Official Statement, (H) duly authorized and approved the execution and delivery of, and performance by the City of its obligations under, the City Agreements, (Hi) duly authorized and approved the performance by the City of its obligations under the City Resolution and the consummation by it of all other transactions contemplated by the Official Statement, (iv) duly authorized and adopted the City Resolution and (v) duly authorized and approved the prepayment of the 1994 Installment Payments, as contemplated by the Official Statement. (c) No Conflicts. The execution and delivery of the City Agreements and the adoption of the City Resolution and compliance with the provisions of each thereof do not and will not violate or constitute a breach of or default under any applicable constitution, law or administrative regulation of the State or the United States or any applicable judgment or decree or any agreement, indenture, commitment, contract or other instrument to which the City is a party or is otherwise subject. (d) Official Statement. The Preliminary Official Statement does not, and the Official Statement as of the date hereof and on the date of Closing will not, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein in light of the circumstances under which they were made, not misleading. The City Resolution and the City Agreements will, at the Closing, conform in all material respects to the descriptions thereof in the Official Statement. The financial data relating to the City and the financial statements of the City contained in the Official Statement fairly present, and as of the date of Closing will fairly present, the financial condition and results of the operation of the City at the dates and for the periods therein specified in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements of the City. (e) Covenant to Notify. If, at any time prior to the earlier of (i) receipt of notice from the Underwriter pursuant to Section 2 hereof that Final Official Statements are no longer required to be delivered under the Rule or (ii) 25 days after the end of the underwriting period, any event occurs as a result of which the Final Official Statement as then amended or supplemented might include an untrue statement of a material fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the City shall promptly notify the Underwriter in writing of such event, and if in the opinion of the Underwriter such event requires the preparation and publication of a supplement or amendment to the Official Statement, the City will at its expense supplement or amend the Official Statement in a form and manner approved by the Underwriter. Any information supplied by the City for inclusion in any amendments or 7 I' , supplements to the Official Statement will not contain any untrue or misleading statement of a material fact required to be stated therein or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (f) No Other Debt. Between the date of this Bond Purchase Agreement and the Closing, (i) except as described in or contemplated by the Official Statement, the City will not, without the prior written consent of the Underwriter, issue any bonds, notes or other obligations for borrowed money on its behalf, and (ii) except as described in or contemplated by the Official Statement the City will not incur any material liabilities direct or contingent, other than those in the ordinary course ofbusiness. (g) No Litigation. No controversy or litigation of any nature is now pending or, to the best of the City's knowledge, threatened in any court or before any governmental agency: (i) restraining or enjoining, or seeking to restrain or enjoin, the issuance, sale, execution or delivery of the Bonds; or (ii) in any way contesting or affecting (1) the validity or enforceability of the Bonds, (2) any proceedings of or on behalf of the City taken with respect to the issuance or sale of the Bonds, or the prepayment of the 1994 Installment Payments, (3) the adoption of the City Resolution or the execution and delivery of the City Agreements, (4) the pledge ofrevenues and other funds effected by the Installment Purchase Agreement, as described in the Official Statement, or (5) the existence or powers of the City; or (iii) in any manner questioning (1) the proceedings or authority for the issuance of the Bonds, (2) any provision made or authorized for the payment of the Bonds, (3) the proceedings for the prepayment of the 1994 Installment Payments or the refunding of the Series 1994 Bonds, (4) the existence or operations of the City, or (5) the power of the City to undertake any other transactions contemplated by the Official Statement; or (iv) which would have a material adverse effect upon the operations of the City; and none of the City's proceedings or authority for the execution and delivery of the City Agreements or the adoption of the City Resolution as described in the Official Statement has been repealed, modified, amended, revoked or rescinded. (h) Blue Sky. The City will furnish such information, execute such instruments and take such other action in cooperation with the Underwriter, as the Underwriter may reasonably request, to qualify the Bonds for offer and sale under the Blue Sky or securities laws and regulations of such states and other jurisdictions of the United States as the Underwriter may designate. 8 f' , (i) All Consents Obtained. All approvals and consents of the City which would constitute a condition precedent to the performance by the City of its obligations under the City Resolution and the City Agreements have been obtained and are in full force and effect. No other authorization, consent or approval of, or filing or registration with, any Governmental Authority or court is, or under existing requirements of law will be, necessary for the valid execution, delivery or performance by the City hereof other than any authorization, consent, approval, filing or registration as may be required under the Blue Sky or securities laws of any state in connection with the offering, sale or issuance of the Bonds. All authorizations, consents or approvals of, or filings or registrations with any Governmental Authority or court necessary for the performance by the City of its obligations under, the City Agreements will have been duly obtained or made prior to the execution and delivery of the City Agreements. G) No Defaults. The City has not, since its creation, been declared to be in default in the payment of principal of, premium, if any, or interest on, or otherwise been declared to be in default with respect to, any bonds, notes or other obligations which it has issued, assumed or guaranteed as to payment of principal, premium, if any, or interest. (k) No Other Offers. Neither the City nor anyone authorized to act on its behalf, directly or indirectly, has offered the Bonds for sale to, or solicited any offer to buy the Bonds ¡¡-om, anyone other than the Underwriter. (I) No Distribution of Assets. The City has not taken any official action with regard to the sale of a substantial amount of its assets, operations or a combination of its assets or operations, as of the date hereof and as of the date of the Closing. (m) Certificates. Any certificate signed by any official of the City and delivered to the Underwriter shall be deemed a representation and warranty by the City to the Underwriter as to the truth of the statement therein contained. (n) Coriformity. The Bonds will be issued in accordance with the Indenture and will conform in all material respects to the descriptions thereof contained in the Official Statement. 7. Closing. At 9:00 a.m., California time, on February 26, 2004, or such other time or date as the Authority, the City and the Underwriter may mutually agree (such time being herein sometimes referred to as the "time of the Closing" and such date as the "date of the Closing"), the Authority will deliver the Bonds to the Underwriter in definitive form as fully registered bonds, duly executed and authenticated, together with the other documents hereinafter mentioned, and subject to the terms and conditions hereof, the Underwriter will accept such delivery and pay the purchase price of the Bonds as set forth in paragraph 1 hereof by federal or other immediately available funds, to the order of the Authority. The Closing shall be held at the offices of Orrick, Herrington & Sutcliffe LLP, Suite 3200, 777 South Figueroa Street, Los Angeles, California, or such other place as shall have been mutually agreed upon by the Authority and the Underwriter. The Bonds in definitive form shall be delivered to The Depository Trust Company in New York, New York or at such other place as the Underwriter may direct in fully registered form at least one (I) business day prior to the date ofthe Closing. 9 8. Conditions to Closing. The Underwriter has entered into this Bond Purchase Agreement in reliance upon the representations, warranties and covenants of the Authority and the City contained herein and to be contained in the documents and instruments to be delivered at the Closing and upon the performance by the Authority and the City of their obligations hereunder, both as of the date hereof and as of the date of the Closing. Accordingly, the Underwriter's obligation under this Bond Purchase Agreement to purchase, to accept delivery of and to pay for the Bonds shall be subject to the performance by the Authority and the City of their respective obligations to be performed hereunder and under such documents and instruments at or prior to the Closing and shall also be subject to the following conditions: (a) The representations and warranties of the Authority and the City contained herein shall be true, complete and correct in all material respects on the date hereof and on and as of the date of the Closing, as ifrnade on the date of the Closing; and the statements made in all certificates and other documents delivered to the Underwriter at the Closing pursuant hereto shall be true, complete and correct in all material respects at the Closing; the Authority and the City shall be in compliance with each of the agreements made by it in this Bond Purchase Agreement (unless such agreements are waived by the Underwriter); and there shall not have occurred an adverse change in the financial position, results of operations or financial condition of the City which materially adversely affects the ability of the City to pay interest or principal due under the Installment Purchase Agreement when due or to otherwise perform any of its obligations under the Installment Purchase Agreement. (b) At the time of the Closing, the Official Statement, each of the City Resolution, the Authority Resolution, the Indenture, the Installment Purchase Agreement, the Continuing Disclosure Certificate, the Escrow Agreement and this Bond Purchase Agreement shall be in full force and effect, and shall not have been amended, modified or supplemented (except as may be agreed to in writing by the Underwriter); all actions which, in the opinion of Orrick, Herrington & Sutcliffe LLP, Bond Counsel, shall be necessary in connection with the transactions contemplated hereby shall have been duly taken and shall be in full force and effect; and the Authority and the City shall perform or have performed their obligations required under or specified in this Bond Purchase Agreement, the Official Statement, the City Resolution, the Authority Resolution, the Continuing Disclosure Certificate, the Escrow Agreement, the Installment Purchase Agreement and the Indenture to be performed at or prior to the Closing. (c) At the time of the Closing, the Official Statement (as amended and supplemented) shall be true and correct in all material respects, and shall not omit any statement or information necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (d) (i) No default by the Authority or the City shall have occurred and be continuing in the payment of the principal of or premium, if any, or interest on any bond, note or other evidence of indebtedness issued by the Authority or the City, respectively, and (ii) no bankruptcy, insolvency or other similar proceeding in respect of the Authority or the City, respectively, shall be pending or to the knowledge of the Authority or the City contemplated. 10 r I (e) The Underwriter shall have the right to terminate their obligations under this Bond Purchase Agreement to purchase, accept delivery of and pay for the Bonds by notifying the Authority and the City of its election to do so if, after the execution hereof and prior to the Closing, regardless of whether any of the following statements of fact were in existence or known of on the date of this Bond Purchase Agreement: (i) the marketability of the Bonds or the market price thereof, in the opinion of the Underwriter, has been materially adversely affected by an . amendment to the Constitution of the United States or the State or by any federal or State legislation or the promulgation of any rule or regulation thereunder or by any decision of any federal or State court or by any ruling or regulation (final, temporary or proposed) by or on behalf of the Treasury Department of the United States, the Internal Revenue Service or other federal or State authority, affecting (1) the tax status of the Authority or the City, its property or income or its obligations (including the Bonds) or (2) the tax status of the interest on the Bonds or (3) any tax exemption granted or authorized by any other law or (4) the validity of the Bonds, the Authority Resolution, the Installment Purchase Agreement, the Indenture, the Escrow Agreement, the Continuing Disclosure Certificate or the City Resolution; or (ii) the United States shall have become engaged in hostilities which have resulted in a declaration of war, or a national emergency (including, but not lirnited to, acts of terrorism) or the President of the United States of America shall have committed the armed forces of the United States of America to combat so as to adversely affect the financial markets in the United States of America and in the reasonable opinion of the Underwriter materially adversely affects the market for the Bonds; or (iii) there shall have occurred a general suspension of trading on the New York Stock Exchange or the declaration of a general banking moratorium shall have been declared by the United States, New York State or State authorities having jurisdiction and being in force; or (iv) there shall have occurred any material adverse change in the condition, financial or otherwise, or in the results of operations of the Authority or City which in the reasonable opinion of the Underwriter materially adversely affects the market for the Bonds; or (v) legislation shall have been enacted or actively considered for enactment or introduced, with an effective date prior to the Closing Date, or a decision by a court of the United States shall be made, the effect of which is that the offering or sale of the Bonds as contemplated herein is or would be in violation of the registration, qualification or other requirements of the Securities Act of 1933, as amended and as then in effect, the Securities Exchange Act of 1934, as amended and as then in effect, or the Trust Indenture Act of 1939, as amended and as then in effect; or 11 (vi) a stop order, ruling or regulation by the Securities and Exchange Commission shall be issued or made the effect of which is that the issuance, offering or sale of the Bonds, as contemplated hereby or by the final Official Statement, is or would be in violation of any provision of the Securities Act of 1933, as amended and as then in effect, of the Securities Exchange Act of 1934, as amended and as then in effect, or of the Trust Indenture Act of 1939, as amended and as then in effect. f' . -(f) At or prior to the Closing, the Underwriter shall have received the following documents: (i) The Official Statement (i) executed on behalf of the Authority by an authorized officer thereof, as designated in the Authority Resolution and (ii) executed on behalf of the City by an authorized officer thereof, as designated in the City Resolution. (ii) (a) the Authority Resolution and the City Resolution each certified by an authorized officer of the respective entity as having been duly executed and adopted by such entity and as being in effect, without amendment or supplement, on the date of the Closing; (b) the Indenture, duly executed by the Authority and the Trustee; (c) the Master Installment Purchase Agreement, duly executed by the Authority and the City; (d) the First Supplement, duly executed by the Authority and the City; (e) the Escrow Agreement, duly executed by the Authority, the City and the Escrow Agent; and (f) the Continuing Disclosure Certificate, duly executed by the City. (iii) The final opinion, dated the date of the Closing and addressed to the Authority, of Orrick, Herrington & Sutcliffe LLP, Bond Counsel, in substantially the form attached to the Official Statement as "APPENDIX C". (iv) The supplemental opinion, dated the date of the Closing and addressed to the Underwriter, of Orrick, Herrington & Sutcliffe LLP, Bond Counsel, to the effect that the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt ITom qualification pursuant to the Trust Indenture Act of 1939, as amended (no opinion is required to be expressed with respect to the Bond Insurance or the Reserve Account Surety Bond). (v) The defeasance opinion, dated the date of the Closing and addressed to the Underwriter, of Orrick, Herrington & Sutcliffe LLP, Bond Counsel, in the form required by the indenture of trust with respect to the Series 1994 Bonds (the "Series 1994 Indenture") and, to the effect, that as a result of the transaction contemplated hereunder the lien of the Series 1994 Bonds on the assets pledged thereto under the Series 1994 Indenture has been defeased and discharged. 12 ( (vi) The opinion, dated the date of the Closing and addressed to the Authority, the City and the Underwriter, of Joseph W. Fletcher, City Attorney, as Counsel to the Authority, to the effect that: (A) the adoption of the Authority Resolution, the execution the Authority Agreements and the delivery of the Bonds and compliance with the provisions and covenants thereof will not conflict with or constitute a breach of or default under any existing law, administrative regulation, court decree, resolution or agreement to which the Authority is subject as of the date of Closing, (B) except as disclosed in the Official Statement, no litigation or . other proceedings are pending or threatened in any way (1) restraining or enjoining the issuance, sale or delivery of any of the Bonds or (2) questioning or affecting the validity of the Authority Agreements, the Bonds, the Authority Resolution, the pledge by the Authority of the Revenues (as defined in the Indenture) or other security provided under the Indenture and the Authority Resolution or (3) questioning or affecting the validity of any of the proceedings for the authorization, sale, execution, registration, issuance or delivery of the Bonds or (4) questioning or affecting (a) the organization or existence of the Authority or the title to office of the officers thereof, or (b) the power or authority of the Authority pledged to the payment of the Bonds, (C) the Official Statement has been duly authorized, executed and delivered to the Underwriter for distribution in connection with the sale of the Bonds, (D) the Authority had and has good right and lawful authority under the Constitution of the State and the Act to adopt the Authority Resolution, to execute and deliver the Authority Agreements and to authorize and issue the Bonds, and (E) the Authority Agreements and the Authority Resolution have each been duly adopted by the Authority and each thereof constitutes a valid and legally binding agreement of the Authority enforceable in accordance with its terms, except to the extent that the enforceability of such documents may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights, by the application of equitable principles, by the exercise of judicial discretion in appropriate cases and by limitations on legal remedies against public agencies in California. (vii) The opinion, dated the date of the Closing and addressed to the Authority, the City and the Underwriter, of Joseph W. Fletcher, City Attorney of the City, to the effect that (A) the adoption of the City Resolution, the execution of the City Agreements, and compliance with the provisions and covenants thereof will not conflict with or constitute a breach of or default under any existing law, administrative regulation, court decree, resolution or agreement to which the City is subject as of the date of Closing, (B) except as disclosed in the Official Statement, no litigation or other proceedings are pending or threatened in any court or other tribunal of competent jurisdiction, State or federal, in any way (I) restraining or enjoining the issuance, sale or delivery of the Bonds or (2) questioning or affecting the validity of the City Agreements, the City Resolution, the pledge by the City of Net System Revenues (as defined in the Installment Purchase Agreement) or other security provided under the Installment Purchase Agreement and the City Resolution or (3) questioning or affecting the validity of any of the proceedings for the authorization, sale, execution, registration, issuance or delivery of the Bonds or (4) questioning or affecting (a) 13 I' f the organization or existence of the City or the title to office of the officers thereof, or (b) the power or authority of the City to levy and collect Net System Revenues, and to prepay and defease the 1994 Installment Sale Payments, (C) the Official Statement has been duly authorized, executed and delivered for distribution in connection with the sale of the Bonds, (D) the City had and has good right and lawful authority under the Constitution of the State and the Acts to adopt the City Resolution and to execute and deliver the City Agreements, and (E) the City Agreements, have each been duly executed and delivered by the City . and each constitutes a valid and legally binding agreement of the City enforceable in accordance with its terms, except to the extent that the enforceability of such documents may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights and except that equitable remedies lie in the discretion of a court and may not be available. (viii) The opinion, dated the date of Closing and addressed to the Underwriter, of Ehrensaal & Bank, PLLC, counsel to the Underwriter, to the effect that the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended (no opinion is required to be expressed with respect to the Bond Insurance or the Reserve Account Surety Bond). (ix) The opinion of Orrick, Herrington and Sutcliffe LLP (in such capacity, "Disclosure Counsel"), to the effect that based upon their participation in the preparation of the Official Statement nothing has come to their attention which would lead them to believe that the Official Statement (except as to the statistical, financial data and information regarding the book-entry only system, the Bond Insurance Policy and the Reserve Account Surety Bond included in the Official Statement as to which they do not express any opinion) contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. (x) The opinion, dated the date of Closing and addressed to the Authority, the City and the Underwriter, of counsel to the Trustee, acceptable to the Authority, the City and the Underwriter; (xi) The opinion, dated the date of Closing and addressed to the Authority, the City and the Underwriter, of counsel to the Escrow Agent, acceptable to the Authority, the City and the Underwriter; (xii) A certificate or certificates, dated the date of the Closing and signed by a duly authorized officer of the Authority, to the effect that: (A) the representations and warranties of the Authority contained herein are true and correct in all material respects on and as of the date of the Closing as ifmade on the date of the Closing; 14 i' , (B) none of the proceedings or authority for the issuance, sale, execution and delivery of the Bonds, the execution and delivery of the Authority Agreements, or the execution and adoption of the Authority Resolution has been repealed, modified, amended, revoked or rescinded; (C) subsequent to June 30, 2003 and prior to Closing, there have been no material adverse changes in the financial position of the Authority; (D) no event affecting the Authority has occurred since the date of the Official Statement which either makes untrue or incorrect in any rnaterial respect as of the Closing Date any statement or information contained in the Official Statement or is not reflected in the Official Statement but should be reflected therein in order to make the statements and information therein not misleading in any material respect; and (E) no litigation is pending or threatened (a) to restrain or enjoin the issuance, sale or delivery of any of the Bonds, (b) in any way contesting the Bonds, the Authority Resolution or the Authority Agreements, (c) which may result in any material adverse change in the business, properties, assets or the financial condition of the Authority or which may have a material adverse effect on the ability of the Authority to meet its obligations under the Authority Resolution or the Authority Agreements, or (d) in any way contesting the existence or powers of the Authority. (xiii) A certificate or certificates, dated the date of the Closing and signed by a duly authorized officer of the City, to the effect that: (A) the representations and warranties of the City contained herein are true and correct in all material respects on and as of the date of the Closing as if made on the date of the Closing; (B) none of the proceedings or authority for the execution and delivery of the City Agreements or the adoption of the City Resolution has been repealed, modified, amended, revoked or rescinded; (C) subsequent to June 30, 2003 and prior to Closing, there have been no material adverse changes in the financial position of the City; (D) no event affecting the City has occurred since the date of the Official Statement which either makes untrue or incorrect in any material respect as of the Closing Date any statement or information contained in the Official Statement or is not reflected in the Official Statement but should be reflected therein in order to make the statements and information therein not misleading in any rnaterial respect; and 15 ¿ ; (E) no litigation is pending or threatened (a) in any way contesting the City Resolution, or the City Agreements, (b) which may result in any material adverse change in the business, properties, assets or the financial condition of the City or which may have a material adverse effect on the ability of the City to meet its obligations under the City Agreements, or (c) in any way contesting the existence or powers of the City. (xiv) A Tax Certificate of the Authority and the City, in form and . substance satisfactory to the Underwriter and Orrick, Herrington & Sutcliffe LLP, Bond Counsel. (xv) A certificate of the Trustee dated the Closing, signed by a duly authorized officer of the Trustee, and in form and substance satisfactory to the Underwriter, to the effect that (A) the Trustee has been duly organized and is validly existing in good standing as a national banking association under the laws of the United States of America with full corporate power to undertake the trusts of, and the duties, the Indenture, (B) the Trustee has duly executed and delivered the Indenture and by all proper corporate action has authorized the acceptance of the trusts of the Indenture, the Bonds have been validly authenticated and delivered by the Trustee, and to the best of such officer's knowledge, no litigation has been served upon or is threatened (either in state or Federal courts) (1) to restrain or enjoin the execution or delivery of the Bonds, or (2) in any way contesting or affecting any authority for the execution or delivery of the Bonds or the validity or enforceability of the Bonds or the Indenture. (xvi) Evidence that the Bonds have been assigned a rating of "Aaa" by Moody's Investors Service and "AAA" by Standard & Poor's Ratings Group, based upon Bond Insurance being issued by the Bond Insurer. (xvii) Evidence of that the Bond Insurance has been issued by the Bond Insurer with respect to the Bonds. (xviii) Evidence that the Reserve Account Surety Bond has been issued in an amount equal to the Reserve Requirement. (xix) A certificate of the Bond Insurer dated the date of Closing in form and substance acceptable to the Underwriter regarding, among other matters, the due authorization, execution and validity of the Bond Insurance and the Reserve Account Surety Bond. (xx) An opinion of counsel to the Bond Insurer, dated the date of Closing and addressed to the City and the Underwriter, to the effect that (a) the Bond Insurance and the Reserve Account Surety Bond are legal, valid and binding obligations of the Bond Insurer enforceable in accordance with their respective terms, and (b) the statements in the Official Statement under the caption "BOND INSURANCE" and "APPENDIX 0" accurately reflect and fairly present the information purported to be shown therein. 16 / (xxi) A certificate of the Escrow Agent dated the date of the Closing, signed by a duly authorized officer of the Escrow Agent, and in form and substance satisfactory to the Underwriter, to the effect that (A) the Escrow Agent has been duly organized and is validly existing in good standing as a national banking association under the laws of the United States of America with full corporate power to undertake the trusts of the Escrow Agreement, (B) the Escrow Agent has duly authorized, executed and delivered the Escrow Agreement and by all proper corporate action has authorized the acceptance of the trusts of the Escrow Agreement, and (C) to the best of such officer's knowledge, no litigation has been served upon or is threatened (either in state or Federal courts) in any way contesting or affecting the validity or enforceability of the Escrow Agreement. (xxii) A verification report of Grant Thornton LLP, independent certified public accountants certifying that the amount to be deposited in the escrow fund held by the Escrow Agent under the Escrow Agreement, together with earnings thereon, will be sufficient, to pay when due the interest to become due on the Series 1994 Bonds and on and prior to the Redemption Date the principal of and redemption premiums, if any, on the Series 1994 Bonds. (xxiii) A certificate of the City, dated the date of Closing, executed by an authorized officer thereof, stating that the financial data relating to the City and the financial statements of the City contained in the Official Statement presented as of the date of the Official Statement and at the date ofthe Closing present fairly the financial condition and results of the operation of the City at the dates and for the periods therein specified in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements of the City. (xxiv) Such additional legal opinions, certificates, proceedings, instruments and other documents as the Underwriter, counsel to the Underwriter, or Orrick, Herrington & Sutcliffe LLP, Bond Counsel, may reasonably request. All of the opinions, letters, certificates, instruments and other documents mentioned above or somewhere in this Bond Purchase Agreement shall be deemed to be in compliance with the provisions hereof if, and only if, they are in form and substance satisfactory to the Underwriter. If the Authority shall be unable to satisfy the conditions to the obligation of the Underwriter to purchase, accept delivery of and pay for the Bonds contained in this Bond Purchase Agreement, or if the obligation of the Underwriter to purchase, accept delivery of and pay for the Bonds shall be terminated for any reason permitted by this Bond Purchase Agreement, this Bond Purchase Agreement shall terminate, and neither the Underwriter, the City nor the Authority shall be under further obligation hereunder except that the respective obligations of the Authority, the City and the Underwriter set forth in paragraph 9 hereof shall continue in full force and effect. 9. Expenses. 17 (a) The Underwriter shall be under no obligation to pay, and the Authority and the City shall pay, any expenses relating to the performance of the Authority's obligations and the City's obligations hereunder, including, but not limited to: (i) the cost of the preparation, printing and delivery of the Authority Resolution, the City Resolution, the Indenture, the Installment Purchase Agreement, the Escrow Agreement, this Bond Purchase Agreement, the Continuing Disclosure Certificate, the Preliminary Official Statement and the Official Statement; (ii) the cost of the preparation and printing of the Bonds; (iii) the fees and disbursements of Orrick, Herrington & Sutcliffe LLP, Bond Counsel, Counsel to the Authority and Counsel to the City; (iv) the fees and disbursements of the Authority's accountants, advisers and of any other experts or consultants retained by the Authority or the City; (v) the fees and disbursements of the Trustee and the Escrow Agent and their counsel; (vi) the fees of The Depository Trust Company, if any; (vii) the premium for the Bond Insurance and Reserve Account Surety Bond provided by the Bond Insurer and any related fees and expenses; (viii) any separate fees of the rating agencies; and (ix) the fees of California Municipal Statistics, Inc. (b) The Underwriter shan pay (i) all advertising expenses in connection with the public offering of the Bonds, (ii) the fees and disbursements of Ehrensaal & Bank, PLLC, relating to its representation of the Underwriter, including the preparation of any "Blue Sky" Memoranda or legal investment surveys; (iii) the costs of obtaining CUSIP numbers; (iv) the fee paid to the California Debt and Investment Advisory Commission; and (v) all other expenses incurred by the Underwriter in connection with its public offering and distribution of the Bonds. 10. Notices. Any notice or other communication to be given to the Authority under this Bond Purchase Agreement may be given by delivering the same in writing to Santa Ana Financing Authority, c/o City of Santa Ana, 20 Civic Center Plaza, Santa Ana, CA 92701, Attention: Miguel A. Pulido, Chairman, and any notice or other communication to be given to the Underwriter under this Bond Purchase Agreement may be given by delivering the same in writing to Kinsell, Newcomb & DeDios, Inc., 462 Stevens Avenue, Suite 308, Solana Beach, California 92075; Attention: Todd Smith, Vice President, and any notice or other communication to be given to the City under this Bond Purchase Agreernent may be given by delivering the same in writing to City of Santa Ana, 20 Civic Center Plaza, Santa Ana, CA 92701, Attention: David N. Ream, City Manager. 11. Parties of Interest; Survival of Representations and Warranties. This Bond Purchase Agreement is made solely for the benefit of the Authority, the City and the Underwriter, and no other person shall acquire or have any right hereunder or by virtue hereof. All of the Authority's and the City's representations, warranties and agreements contained in this Bond Purchase Agreement shall remain operative and in full force and effect regardless of (i) any investigations made by or on behalf of the Underwriter, (ii) delivery of any payment for the Bonds pursuant to this Bond Purchase Agreement and (iii) any termination of this Bond Pùrchase Agreement. 12. Effective Date. This Bond Purchase Agreement shall become effective upon the execution of the acceptance hereof by the duly authorized officer of the Authority and the City, and shall be valid and enforceable as of the time of such acceptance. 18 13. Applicable Law. 11ús Bond Purchase Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts made and performed within such State. 19 f' 14. Execution in Counterparts. This Bond Purchase Agreement may be executed in several counterparts, each of which shall be regarded as an original and all of which shall constitute one and the same document. Accepted as of the date first above mentioned: SANTA ANA FINANCING AUTHORITY By: ,~~ Executive Director CITY OF SANTA ANA By: J)¿lJtL- City Manager Very truly yours, ~~ A---Ir ~c!// /7, ~ AJIF 8. HEAL y ~ OPnÅ“ COUNCU 20 APPENDIX A MATURITIES, AMOUNTS AND INTEREST RATES MaturitY Date Amount Interest Rate 09/01/2005 740,000 2.00% 09/01/2006 750000 2.25% 09/0112007 770,000 2.50% 09/0112008 790,000 2.75% 09/01/2009 810000 2.375% 09/01/2010 830000 2.625% 09/01/2011 855,000 2.875% 09/0112012 880000 3.125% 09/01/2013 900000 3.375% 09/0112014 930000 3.50% 09/0112015 965000 3.625% 09/0112016 1,000000 3.80% 09/01/2017 1,040000 5.00% 09/0112018 1 095,000 5.00% 09/0112019 1,145,000 4.50% 09/0112020 1,195,000 5.00% 09/0112021 1,255000 5.00% 09/0112022 1,320000 5.00% 09/0112023 1 385 000 5.00% 09/0112024 1,485,000 5.00% Total 20,110,000 DOCSLAl:462904.1