HomeMy WebLinkAboutCC RESO 2001 - 57RESOLUTION NO. 2001 — 57
RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF NATIONAL CITY
AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2001-2002; THE ISSUANCE AND
SALE OF A 2001-2002 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR; AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
WHEREAS, local agencies are authorized by Section 53850 to 53858, both
inclusive, of the Government Code of the State of California (the "Act") (being Article 7.6,
Chapter 4, Part 1, Division 2, Title 5 of the Government Code) to borrow money by the issuance
of temporary notes; and
WHEREAS, the legislative body (the "Legislative Body") of the local agency
specified in Section 25 hereof (the "Local Agency") has determined that a sum (the "Principal
Amount"), not to exceed the Maximum Amount of Borrowing specified in Section 25 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 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, 2002 ("Fiscal
Year 2001-2002"); and
WHEREAS, the Local Agency hereby determines to borrow, for the purposes set
forth above, the Principal Amount by the issuance of the Note (as hereinafter defined); and
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 Fiscal Year 2001-2002 and available for the payment
of the principal of the Note and the interest thereon; and
WHEREAS, no money has heretofore been borrowed by or on behalf of the Local
Agency through the issuance of tax 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 Fiscal Year 2001-2002; and
WHEREAS, pursuant to Section 53856 of the Act, certain moneys which will be
received by the Local Agency during and attributable to Fiscal Year 2001-2002 can be pledged
for the payment of the principal of the Note and the interest thereon (as hereinafter provided);
and
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; and
Resolution No. 2001 —
April 24, 2001
Page 2 of 19
WHEREAS, the Program requires the participating Issuers to sell their tax and
revenue anticipation notes to the California Statewide Communities Development Authority (the
"Authority") pursuant to note purchase agreements (collectively, "Purchase Agreements"), each
between such individual Issuer and the Authority, and dated as of the date of the Pricing
Confirmation, a form of which has been submitted to the Legislative Body; and
WHEREAS, the Authority, in consultation with Sutro & Co. Incorporated, as
financial advisor for the Program (the "Financial Advisor"), will form one or more pools of notes
(the "Pooled Notes") and assign each note to a particular pool (the "Pool") and sell a series (the
"Series") of bonds (the "Bonds") secured by each Pool pursuant to an indenture (the "Indenture")
between the Authority and Wells Fargo Bank, National Association, as trustee (the "Trustee"),
each Series distinguished by whether or what type(s) of Credit Instrument(s) (as hereinafter
defined) secure(s) such Series, by the principal amounts of the notes assigned to the Pool or by
other factors, and the Local Agency hereby acknowledges and approves the discretion of the
Authority to assign the Note to such Pool and such Indenture as the Authority may determine;
and
WHEREAS, as additional security for the owners of each Series of Bonds, all or a
portion of the payments by all of the Issuers of the notes assigned to such Series may or may not
be secured (as indicated in the Pricing Confirmation) by an irrevocable letter (or letters) of credit
or policy (or policies) of insurance or proceeds of a separate bond issue issued for such purpose
(the "Reserve Fund") or other credit instrument (or instruments) (collectively, the "Credit
Instrument") issued by the credit provider or credit providers designated in the Indenture, as
finally executed (collectively, the "Credit Provider"), pursuant to a credit agreement or
agreements or commitment letter or letters or, in the case of the Reserve Fund, an indenture (the
"Reserve Indenture") (collectively, the "Credit Agreement") between (i) in the case of an
irrevocable letter (or letters) of credit or policy (or policies) of insurance, the Authority and the
respective Credit Provider and (ii) in the case of the Reserve Fund, the Authority and Wells
Fargo Bank National Association, as trustee of the Reserve Indenture (the "Reserve Trustee");
and
WHEREAS, if, as designated in the Pricing Confirmation, the Credit Instrument m
the Reserve Fund, bonds issued pursuant to the Reserve Indenture (the "Reserve Bonds") may, as
indicated in the Pricing Confirmation, be secured by an irrevocable letter of credit or policy of
insurance or other credit instrument (the "Reserve Credit Instrument") issued by the credit
provider identified in the Reserve Indenture as finally executed (the "Reserve Credit Provider"),
pursuant to a credit agreement or commitment letter (the "Reserve Credit Agreement") identified
in the Reserve Indenture as finally executed, such Reserve Credit Agreement being between the
Authority and the Reserve Credit Provider; and
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; and
Resolution No. 2001 —
April 24, 2001
Page 3 of 19
WHEREAS, as part of the Program each participating Issuer approves the
Indenture, the alternative forms of Credit Agreements, if any, and the alternative forms of
Reserve Credit Agreements, if any, in substantially the forms presented to the Legislative Body,
with the final form of Indenture, type of Credit Instrument and corresponding Credit Agreement
and type of Reserve Credit Instrument and corresponding Reserve Credit Agreement, if any, to
be determined and approved by delivery of the Pricing Confirmation; and
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 Bonds,
and (b), if applicable, the fees of the Credit Provider, the fees of the Reserve Credit Provider
(which shall be payable from, among other sources, investment earnings on the Reserve Fund
and moneys in the Costs of Issuance Fund established and held under the Indenture), the Issuer's
allocable share of all Predefault Obligations and the Issuer's Reimbursement Obligations, if any
(each as defined in the Indenture); and
WHEREAS, pursuant to the Program each participating Issuer will be responsible
for its share of the fees of the Reserve Trustee and the costs of issuing the applicable Series of
Reserve Bonds, all such costs and fees being payable from the proceeds of the applicable Series
of Bonds (or, with respect to costs and fees of the Reserve Credit Provider, as may otherwise be
provided in the Reserve Indenture); and
WHEREAS, pursuant to the Program, the underwriter will submit an offer to the
Authority to purchase, in the case of each Pool of Notes, the Series of Bonds which will be
secured by the Indenture to which such Pool will be assigned; and
WHEREAS, it is necessary to engage the services of certain professionals to assist
the Local Agency in its participation in the Program; and
NOW, THEREFORE, the Legislative Body hereby finds, determines, declares and
resolves as follows:
Section 1. Recitals. This Legislative Body hereby finds and determines that
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 Fiscal Year 2001-2002, by the issuance of a note in the Principal Amount under
Sections 53850 et seq. of the Act, designated the Local Agency's "2001 Tax and Revenue
Anticipation Note" (the "Note"), to be issued in the form of one fully registered note at 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 fifteen months thereafter on a date
indicated on the face thereof and determined in the Pricing Confirmation (the "Maturity Date"),
and to bear interest, payable at maturity (and if the maturity is more than twelve months from the
Resolution No. 2001 —
April 24, 2001
Page 4 of 19
date of issuance, payable on the interim payment date set forth in the Pricing Confirmation) and
computed upon the basis of a 360-day year consisting of twelve 30-day months, at a rate 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 Series of Bonds issued in connection with the
Note is secured in whole or in part by a Credit Instrument or such Credit Instrument (other than
the Reserve Fund) 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, payment or claim is not fully reimbursed on such date, such Note shall become a Defaulted
Note (as defined in the Indenture), 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 Indenture). If the Credit Instrument is
the Reserve Fund and the Reserve Bonds issued to fund the Reserve Fund are secured by the
Reserve Credit Instrument and a Drawing (as defined in the Indenture) pertaining to the Note is
not fully reimbursed by the Reserve Principal Payment Date (as defined in the Indenture), such
Note shall become a Defaulted Reserve Note (as defined in the Indenture), and the unpaid
portion (including the interest component, if applicable) thereof (or portion (including the
interest component, if applicable) with respect to which the Reserve Fund applies for which
reimbursement on a Drawing has not been fully made) shall be deemed outstanding and shall
continue to bear interest thereafter until paid at the Default Rate. If the Note or the Series of
Bonds issued in connection with the Note 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 three
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 Fiscal Year 2001-2002, as provided in Section 8 hereof.
The percentage of the Note to which a Credit Instrument, if any, applies (the "Secured
Percentage") shall be equal to the amount of the Credit Instrument divided by the aggregate
amount of unpaid principal of and interest on the unpaid notes (or portions thereof) of all Issuers,
expressed as a percentage (but not greater than 100%) as of the maturity date. The percentage of
the Note to which the Reserve Credit Instrument, if any, applies (the "Secured Reserve
Percentage") shall be equal to the amount of the Reserve Credit Instrument divided by the
aggregate amount of unpaid principal of and interest on such unpaid notes (or portions thereof,
including the interest component, if applicable), expressed as a percentage (but not greater than
100%) as of the Reserve Principal Payment Date.
Both the principal of and interest on the Note shall be payable in lawful money of
the United States of America. The principal of and interest on the Note at maturity shall be paid
upon surrender of the Note at the corporate trust office of Wells Fargo Bank, National
Association in Los Angeles, California.
Resolution No. 2001 —
April 24, 2001
Page 5 of 19
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.
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.
Section 4. Sale of Note: Delegation. The Note shall be sold to the Authority
pursuant to the Purchase Agreement. The form of the Purchase Agreement, including the form
of the pricing confirmation supplement (the "Pricing Confirmation") set forth as Exhibit "A"
thereto, presented to this meeting are hereby approved. The authorized representatives set forth
in Section 25 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 Purchase
Agreement shall not be effective and binding on the Local Agency until the execution and
delivery of the Pricing Confirmation. The Authorized Representatives are each hereby further
authorized and directed to execute and deliver the Pricing Confirmation 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 interest rate on the Note shall not exceed twelve percent (12%) per annum, the discount
on the Note, when added to the Local Agency's share of the costs of issuance of the Bonds, shall
not exceed one percent (1.0%), 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.
Section 5. Program Approval. The Pricing Confirmation shall indicate
whether and what type of Credit Instrument and, if applicable, Reserve Credit Instrument will
apply.
The forms of Indenture, alternative general types and forms of Credit Agreements,
if any, and alternative general types and forms of Reserve Credit Agreements, if any, presented
to this meeting are hereby acknowledged, and it is acknowledged that the Authority will execute
and deliver the Indenture, one or more Credit Agreements, if applicable, and one or more
Reserve Credit Agreements, if applicable, which shall be identified in the Pricing Confirmation,
in substantially one or more of said forms with such changes therein as the Authorized
Representative who executes the Pricing Confirmation shall require or approve (substantially
final forms of the Indenture, the Credit Agreement and, if applicable, the Reserve Credit
Agreement are to be delivered to the Authorized Representative concurrent with the Pricing
Confirmation), such approval of the Authorized Representative and this legislative Body to be
conclusively evidenced by the execution of the Pricing Confirmation. If the Credit Agreement
identified in the Pricing Confirmation is the Reserve Indenture, it is acknowledged that the
Authority will issue the Reserve Bonds pursuant to and as provided in the Reserve Indenture as
finally executed.
Resolution No. 2001 —
April 24, 2001
Page 6of19
Any one of the Authorized Representatives of the Local Agency is hereby
authorized and directed to provide the Financial Advisor or the underwriter with such
information relating to the Local Agency as the Financial Advisor or the underwriter shall
reasonably request for inclusion in the Preliminary Official Statement and Official Statement of
the Authority. Upon inclusion of the information relating to the Local Agency therein, the
Preliminary Official Statement and Official Statement or such other offering document 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 with respect to the
Local Agency and any Authorized Representative of the Local Agency is authorized to execute a
certificate to such effect. If, at any time prior to the end of the underwriting period, as defined in
the Rule, any event occurs as a result of which the information contained in the Preliminary
Official Statement or other offering document 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.
Subject to Section 8 hereof, the Local Agency hereby agrees that if the Note 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 Note or the Series of Bonds
issued in connection with the Note, has been reimbursed for any drawings, payments or claims
made under or from the Credit Instrument with respect to the Note, including interest accrued
thereon, as provided therein and in the applicable Credit Agreement, and, (ii) the holders of the
Note, or Series of the Bonds issued in connection with the Note, are paid the full principal
amount represented by the unsecured portion of the Note plus interest accrued thereon
(calculated at the Default Rate) to the date of deposit of such aggregate required amount with the
Trustee. For purposes of clause (ii) of the preceding sentence, holders of the Series of Bonds will
be deemed to have received such principal amount upon deposit of such moneys with the
Trustee.
Subject to Section 8 hereof, the Local Agency hereby agrees that if the Note shall
become a Defaulted Reserve Note, the unpaid portion (including the interest component, if
applicable) thereof or the portion (including the interest component, if applicable) to which a
Reserve Credit Instrument, if any, applies for which full reimbursement on a Drawing has not
been made by the Reserve Principal Payment Date shall be deemed outstanding and shall not be
deemed paid until (i) any Reserve Credit Provider providing a Reserve Credit Instrument with
respect to the Reserve Bonds (against the Reserve Fund of which such Drawing was made) has
been reimbursed for any Drawing or payment made under the Reserve Credit Instrument with
respect to the Note, including interest accrued thereon, as provided therein and in the Reserve
Credit Agreement, and (ii) the holders of the Note, or Series of Bonds issued in connection with
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
Resolution No. 2001 —
April 24, 2001
Page 7 of 19
required amount with the Trustee. For the purposes of clause (ii) of the preceding sentence,
holders of the Series of Bonds will be deemed to have received such principal amount upon
deposit of such moneys with the Trustee.
The Local Agency agrees to pay or 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 is secured in whole or in part by a Credit Instrument and, if
applicable, a Reserve Credit Instrument (by virtue of the fact that the Series of Bonds is secured
by a Credit Instrument and, if applicable, Reserve Bonds are secured by a Reserve Credit
Instrument), any Predefault Obligations and Reimbursement Obligations (to the extent not
payable under the Note), (i) arising out of an "Event of Default" hereunder (or pursuant to
Section 7 hereof) or (ii) arising out of any other event (other than an event arising solely as a
result of or otherwise attributable to a default by any other Issuer). In the case described in (ii)
above with respect to Predefault Obligations, the Local Agency shall owe only the percentage of
such fees, expenses and Predefault Obligations equal to the ratio of the principal amount of its
Note over the aggregate principal amounts of all notes, including the Note, of the Series of which
the Note is a part, at the time of original issuance of such Series. Such additional amounts will
be paid by the Local Agency within twenty-five (25) days of receipt by the Local Agency of a
bill therefore from the Trustee.
Section 6. No Joint Obligation. The Note will be issued in conjunction with a
note or notes of one or more other Issuers, assigned to secure a Series of Bonds. In all cases, the
obligation of the Local Agency to make payments on or in respect to its Note 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.
Section 7. Disposition of Proceeds of Note. A portion of the moneys received
from the sale of the Note in an amount equal to the Local Agency's share of the costs of issuance
(which shall include any fees and expenses) in connection with any Credit Instrument (and the
Reserve Credit Instrument, if any) applicable to the Note or Series of Bonds (and the
corresponding Reserve Bonds, if any) shall be deposited in the Costs of Issuance Fund held and
invested by the Trustee under the Indenture and expended as directed by the Authority on costs
of issuance as provided in the Indenture. The balance of the moneys received from the sale of the
Note to the Authority shall be deposited in the Local Agency's Proceeds Subaccount hereby
authorized to be created pursuant to, and held and invested by the Trustee under, the Indenture
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 use and expend moneys, upon requisition from the Proceeds
Subaccount as specified in the Indenture. 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 Bonds allocable to the
Local Agency's Note on deposit in the Proceeds Fund, which shall constitute the Local Agency's
Proceeds Subaccount.
Resolution No. 2001 —
April 24, 2001
Page 8 of 19
Section 8. Source of Payment.
(A) 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 by the Local Agency
for the general fund of the Local Agency and are attributable to Fiscal Year 2001-2002 and
which are available for payment thereof. As security for the payment of the principal of and
interest on the Note, the Local Agency hereby pledges certain unrestricted revenues (as
hereinafter provided, the "Pledged Revenues") which are received by the Local Agency for the
general fund of the Local Agency and are attributable to Fiscal Year 2001-2002, and the
principal of the Note and the interest thereon shall constitute a first lien and charge thereon and
shall be payable from the first moneys received by the Local Agency from such Pledged
Revenues, and, to the extent not so paid, shall be paid from any other taxes, income, revenue,
cash receipts and other moneys of the Local Agency lawfully available therefore (all as provided
for in Sections 53856 and 53857 of the Act). The term "unrestricted revenues" shall mean all
taxes, income, revenue (including, but not limited to, revenue from the state and federal
governments), cash receipts, and other moneys, intended as receipts for the general find of the
Local Agency attributable to Fiscal Year 2001-2002 and which are generally available for the
payment of current expenses and other obligations of the Local Agency. The Noteholders,
Bondholders, Credit Provider and, if applicable, the Reserve Credit Provider shall have a first
lien and charge on such certain unrestricted revenues as hereinafter provided which are received
by the Local Agency and are attributable to Fiscal Year 2001-2002.
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 find to be designated the "2001 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 Indenture 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 Indenture. The Local Agency agrees to transfer to 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 Fiscal Year 2001-
2002) 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
Resolution No. 2001 —
April 24, 2001
Page 9 of 19
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.
Any one 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.
(B) 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 holders of Bonds issued in connection with
the Notes, (ii) (to the extent provided in the Indenture) the Credit Provider, if any, and (iii) (to
the extent provided in the Indenture and, if applicable, the Credit Agreement) the Reserve 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 Bonds as set forth in the Indenture) and, if applicable, (to the extent provided
in the Indenture and, if applicable, the Credit Agreement) the payment of all Predefault
Obligations and Reimbursement Obligations owing to the Credit Provider and, if applicable, the
Reserve Credit Provider.
(C) The Local Agency hereby directs the Trustee to transfer on the Note
Payment Deposit Date (as defined in the Indenture), any moneys in the Payment Subaccount to
the Bond Payment Fund (as defined in the Indenture). In addition, on the Note Payment Deposit
Date, the moneys in the Payment Account shall 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 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 full when due, such moneys shall be applied in the following priority:
first to pay interest on the Note; second to pay principal of the Note; third to reimburse the Credit
Resolution No. 2001 —
April 24, 2001
Page 10 of 19
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; fifth to reimburse the Reserve
Credit Provider, if any, for payment, if any, of interest with respect to the Note; sixth to
reimburse the Reserve Credit Provider, if any, for payment, if any, of principal with respect to
the Note; and seventh to pay any Reimbursement Obligations of the Local Agency and any of the
Local Agency's pro rata share of Predefault Obligations owing to the Credit Provider and
Reserve Credit Provider (if any) as applicable. 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 Predefault Obligations and Reimbursement Obligations, if applicable, have been
paid, or provision for such payment has been made, shall be transferred to the general find of the
Local Agency, subject to any other disposition required by the Indenture, or, if applicable, the
Credit Agreement. Nothing herein shall be deemed to relieve the Local Agency from its
obligation to pay its Note in full on the Maturity Date.
(D) Moneys in the Proceeds Subaccount and in the Payment Subaccount shall
be invested by the Trustee pursuant to the Indenture as directed by the Local Agency in
Permitted Investments as described in and under the terms of the Indenture. Any such
investment by the Trustee shall be for the account and risk of the Local Agency, and the Local
Agency shall not be deemed to be relieved of any of its obligations with respect to the Note, the
Predefault Obligations or Reimbursement Obligations, if any, by reason of such investment of
the moneys in its Proceeds Subaccount or the Payment Subaccount.
(E) At the written request of the Credit Provider, if any, or the Reserve Credit
Provider, if any, the Local Agency shall, within ten (10) Business Days following the receipt of
such written request, file such report or reports to evidence the transfer to and deposit in the
Payment Account required by this Section 8 and provide such additional financial information as
may be required by the Credit Provider, if any, or the Reserve Credit Provider, if any.
Section 9. Execution of Note. Any one 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 Authorized Representative of the
Local Agency, is hereby authorized to cause the blank spaces of the Note to be filled in as may
be appropriate pursuant to the Pricing Confirmation. The Authorized Representative is hereby
authorized and directed to cause the Authority to assign the Note to the Trustee, pursuant to the
terms and conditions of the Purchase Agreement, this Resolution and the Indenture. In case any
Authorized Representative whose signature shall appear on any Note shall cease to be an
Authorized Representative 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. Intentionally Left Blank. This section has been included to
preserve the sequence of section numbers for cross-referencing purposes.
Resolution No. 2001 —
April 24, 2001
Page 11 of 19
Section 11. Representations and Covenants of the Local Agency.
The Local Agency makes the following representations for the benefit of the
holder of the Note, the owners of the Bonds, the Credit Provider, if any, and the Reserve 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) (i) 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 (ii) the Local Agency has hill 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, and compliance with the provisions hereof and thereof
do not conflict with, breach or violate any law, administrative regulation, court decree,
resolution, charter, by-laws or other agreement to which the Local Agency is subject or by which
it is bound.
(D) Except as may be required under blue sky or other securities laws of any
state or Section 3(a)(2) of the Securities Act of 1933, there is no consent, approval, authorization
or other order of, or filing with, or certification by, any regulatory authority having jurisdiction
over the Local Agency required for the issuance and sale of the Note or the consummation by the
Local Agency of the other transactions contemplated by this Resolution, except those the Local
Agency shall obtain 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 Fiscal Year 2001-2002 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 Fiscal Year
2001-2002, (ii) provide to the Trustee, the Credit Provider, if any, the Reserve Credit Provider, if
any, and 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, shall 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
Resolution No. 2001 —
April 24, 2001
Page 12 of 19
be received by the Local Agency for the general fund of the Local Agency attributable to Fiscal
Year 2001-2002, 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, the Credit Provider, if any, and the Reserve 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 Authority, the Financial Advisor, the underwriter, the Trustee, the Credit Provider, if any,
and the Reserve 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,
the Reserve Credit Agreement,if any, or this Resolution, or seeking to prohibit, restrain or enjoin
the execution, delivery or performance by the Local Agency of any of the foregoing, or wherein
an unfavorable decision, ruling or finding would have a materially adverse effect on the Local
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
Indenture, the Credit Agreement, if any, the Reserve Credit Agreement, if any, or this
Resolution.
(I) 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 eases and the limitations on legal remedies against local
agencies, as applicable, in the State of California.
Resolution No. 2001 —
April 24, 2001
Page 13 of 19
(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 or the Reserve Credit Provider, if any, is not in default under the
corresponding Reserve Credit Agreement, 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, the Reserve Credit
Agreement, if any, and/or the Indenture, 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 or from the Reserve Credit Provider, if applicable, 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.
Section 12. Tax Covenants. (A) The Local Agency shall 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 or Bonds 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 Bonds or any
other funds of the Local Agency which would cause the Note or Bonds to be an "arbitrage bond"
within the meaning of Section 148 of the Code, a "private activity bond" within the meaning of
Section 141(a) of the Code, or an obligation the interest on which is subject to federal income
taxation because it is "federally guaranteed" as provided in Section 149(b) of the Code. The
Local Agency, with respect to the proceeds of the Note, will comply with all requirements of
such sections of the Code and all regulations of the United States Department of the Treasury
issued or applicable thereunder to the extent that such requirements are, at the time, applicable
and in effect.
(B) 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 2001, 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
Resolution No. 2001 —
April 24, 2001
Page 14 of 19
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 148(f)(4)(B) of the Code.
(C) 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 12, no one other than the holders or former holders of the Note, the owners of the
Bond, the Credit Provider, if any, the Reserve Credit Provider, if any, or the Trustee on their
behalf shall be entitled to exercise any right or remedy under this Resolution on the basis of the
Local Agency's failure to observe, or refusal to comply with, such covenants.
(D) The covenants contained in this Section 12 shall survive the payment of the
Note.
Section 13. 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":
(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, the Credit Provider, if applicable, or the
Reserve Credit Provider, if applicable, unless the Trustee and the Credit Provider or the Reserve
Credit Provider, if applicable, shall all agree in writing to an extension of such time prior to its
expiration
(C) Any warranty, representation or other statement by or on behalf of the
Local Agency contained in this Resolution or the Purchase Agreement (including the Pricing
Confirmation) or in any requisition or any financial report delivered by the Local Agency or in
any instrument furnished in compliance with or in reference to this Resolution or the Purchase
Agreement or in connection with the Note, is false or misleading in any material respect;
(D) A petition is filed against the Local Agency under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of
any jurisdiction, whether now or hereafter in effect and is not dismissed within 30 days after
such filing, but the Trustee shall have the right to intervene in the proceedings prior to the
expiration of such thirty (30) days to protect its and the Bond Owners' (or Noteholders')
interests;
Resolution No. 2001 —
April 24, 2001
Page 15 of 19
(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 Bond Owners' or Noteholders' interests.
Whenever any Event of Default referred to in this Section 13 shall have happened
and be continuing, the Trustee, as holder of the Note, shall, in addition to any other remedies
provided herein or by law or under the Indenture, if applicable, have the right, at its option
without any further demand or notice, to take one or any combination of the following remedial
steps:
(1) 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
(2) 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 and under the Note 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 (other than the Reserve Fund) or if the Credit Provider is
subrogated to rights under the Local Agency's Note, as long as the Credit Provider has not failed
to comply with 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, not withstanding
the foregoing, if a Reserve Credit Instrument is applicable, as long as the Reserve Credit
Provider has not failed to comply with its payment obligations under the Reserve Credit
Agreement, the Reserve Credit Provider shall have the right (prior to the Credit Provider) to
direct the remedies upon any Event of Default hereunder, in each case so long as such action will
not materially adversely affect the rights of any Bond Owner, and the Credit Provider's and
Reserve Credit Provider's (if any) prior consent shall be required to any remedial action
proposed to be taken by the Trustee hereunder.
Resolution No. 2001 —
April 24, 2001
Page 16 of 19
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.
If the Credit Instrument is the Reserve Fund and the Reserve Bonds are secured by
the Reserve Credit Instrument and all principal of and interest on the Note is not paid in full by
the Reserve Principal Payment Date, the Defaulted Note shall become a Defaulted Reserve Note
and the unpaid portion (including the interest component if applicable) thereof (or the portion
thereof with respect to which the Reserve Fund applies for which reimbursement on a Drawing
has not been fully made) shall be deemed outstanding and shall bear interest at the Default Rate
until the Local Agency's obligation on the Defaulted Reserve Note is paid in full or payment is
duly provided for, all subject to Section 8 hereof.
Section 14. Trustee. The Local Agency hereby directs and authorizes the
payment bythe Trustee of the interest on and principal of the Note when such become due and
payable, from amounts received by the Trustee from the Local Agency in the manner set forth
herein. The Local Agency hereby covenants to deposit funds in such account or fund, as
applicable, 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 Note Payment Deposit Date. Payment of the Note
shall be in accordance with the terms of the Note and this Resolution.
Section 15. Sale of Note. The Note shall be sold to the Authority, in
accordance with the terms of the Purchase Agreement, hereinbefore approved, and issued
payable to the Trustee, as assignee of the Authority.
Section 16. Intentionally Left Blank. This section has been included to
preserve the sequence of section numbers for cross-referencing purposes.
Section 17. Approval of Actions. The aforementioned Authorized Represent-
atives of the Local Agency are hereby authorized and directed to execute the Note and cause the
Trustee to accept delivery of the Note, pursuant to the terms and conditions of the Purchase
Agreement and the Indenture. 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
Resolution No. 2001 —
April 24, 2001
Page 17 of 19
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 Indenture.
In the event that the Note or a portion thereof is secured by a Credit Instrument,
any one of the Authorized Representatives of the Local Agency is hereby authorized and directed
to provide the Credit Provider and, if applicable, the Reserve Credit Provider, with any and all
information relating to the Local Agency as such Credit Provider or Reserve Credit Provider may
reasonably request.
Section 18. Proceedings 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 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, and the Reserve Credit Provider, if any, are third party
beneficiaries of the provisions of this Resolution and the Note.
Section 19. Limited Liability. Notwithstanding anything to the contrary
contained herein or in the Note or in any other document mentioned herein or related to the Note
or to any Series of Bonds to which the Note may be assigned, 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 therefore as set forth in Section 8
hereof.
Section 20. 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, the
Credit Provider, if any, and the Reserve Credit Provider, if any, but without the necessity for
consent of the owner of the Note or of the Bonds issued in connection with the Note for any one
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
Resolution No. 2001 —
April 24, 2001
Page 18 of 19
(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 Bonds issued 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 Bonds issued in
connection with the Note may be made by a Supplemental Resolution, with the written consents
of the Authority, the Credit Provider, if any, and the Reserve 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
Bonds issued in connection with the Note 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 Bonds issued in connection with the Note remain outstanding, the
consent of the owners of such Note or of such Bonds 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 tine 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 the Bonds issued
in connection with the Note, or shall reduce the percentage of the Note or Bonds the consent of
the owners of which is required to effect any such modification or amendment, or shall change or
modify any of the rights or obligations of the Trustee without its written assent thereto.
Section 21. Severability. 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 22. Appointment of Bond Counsel. The law firm of Orrick,
Herrington & Sutcliffe LLP, Los Angeles, California is hereby appointed 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 23. Appointment of Financial Advisor and Underwriter. Sutro & Co.
Incorporated, Los Angeles, California is hereby appointed as financial advisor for the Program.
Lehman Brothers Inc., together with such co -underwriters, if any, identified in the Purchase
Contract, is hereby appointed as underwriter for the Program.
Section 24. Effective Date. This Resolution shall take effect from and after its
date of adoption.
Resolution No. 2001 —
April 24, 2001
Page 19 of 19
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
National City does hereby authorize and approve the borrowing of funds for Fiscal Year 2001-
2002; the issuance and sale of a 2001-2002 Tax and Revenue Participation Note therefore; and
participation in the California Communities Cash Flow Financing Program.
PASSED and ADOPTED this 24th day of April, 2001.
George Waters, Mayor
ATTEST:
Mc . el R. Dail. / ity Clerk
APPROVED AS TO FORM:
George H. Eiser, III
City Attorney
EXHIBIT A
CITY OF NATIONAL CITY
2001 TAX AND REVENUE ANTICIPATION NOTE, [SERIES ]1/
Date of
Interest Rate Maturity Date Original Issue
REGISTERED OWNER:
PRINCIPAL AMOUNT: $1,500,000
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
, 2002 and] at maturity 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. Principal and
interest at maturity shall 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 shall be calculated on the basis of a 360-day year, consisting of twelve 30-
day months. Both the principal of and interest on this Note shall be payable only to the
registered owner hereof 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 and in that certain Indenture of Trust, dated as of
1, 2001 (the "Indenture"), by and between the California Statewide Communities
Development Authority and Wells Fargo Bank National Association, as trustee), if any, is not
reimbursed in full for the amount drawn on or paid pursuant to the Credit Instrument (as defined
in the Resolution and the Indenture) to pay all or a portion (including the interest component, if
applicable) of this Note on the date of such payment, this Note shall Become a Defaulted Note
(as defined in the Resolution and the Indenture and with the consequences set forth in the
Resolution and the Indenture, including, without limitation, that this Note as a Defaulted Note
(and any related reimbursement obligation with respect to a credit instrument) shall bear interest
at the Default Rate, as defined in the Indenture).
It is hereby certified, recited and declared that this Note represents the authorized
issue of the Note in the aggregate principal amount authorized, executed and delivered pursuant
to and by authority of certain resolutions of the Local Agency duly passed and adopted
heretofore, under and by authority of Article 7.6 (commencing with Section 53850) of Chapter 4,
Part 1, Division 2, Title 5 of the California Government Code (collectively, the "Resolution"), to
If more than one Series of Bonds is issued under the Program in Fiscal Year 2001-2002 and if the Note
ispooled with notes issued by other Issuers (as defined in the Resolution).
DOCSIA1373778. A-1
Exhibit "A"
Page 1
all of the provisions and limitations of which the owner of this Note, by acceptance hereof,
assents and agrees.
The principal of the Note, together with the interest thereon, shall be payable from
taxes, income, revenue, cash receipts and other moneys which are received by the Local Agency
for the general fund of the Local Agency and are attributable to Fiscal Year 2001-2002 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 and (and any amounts
received thereafter attributable to Fiscal Year 2001-2002) until the amount on deposit in the
Payment Account (as defined in the Resolution), together with available amounts, if any, on
deposit in the Payment Subaccount (as defimed 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 (as defined in the Resolution) (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 of the 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.
•
nasLAisnris. A-2
Exhibit "A"
Page 2
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.
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.
Countersigned
By:
Title:
Ok
DOCSLA1:373778.
CITY OF NATIONAL CITY
By:
A-3
Title:
Exhibit "A"
Page 3
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Purchase Agreement"), dated as of the
purchase date (the "Purchase Date') specified in Exhibit A attached hereto and made a part hereof,
entered into by and between the signatory local agency designated in Exhibit A (the "Local Agency")
and the California Statewide Communities Development Authority (the "Authority"), for the sale and
delivery of the principal amount specified in Exhibit A of the Local Agency's 2001 Tax and Revenue
Anticipation Note (the "Note") to be issued in conjunction with the notes of other Issuers (as hereinafter
defined) participating in the Program (as hereinafter defined), as determined in the Pricing Confirmation
(as hereinafter defined), pooled with notes of other Issuers and assigned to secure a series (the
"Series") of bonds (the "Bonds") designated in Exhibit A;
WITNESSETH:
WHEREAS, local agencies are authorized by Sections 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 of the Local Agency (the "Legislative Body") has
heretofore adopted its resolution finding that the Local Agency needs to borrow funds in its fiscal year
ending June 30, 2002 ("Fiscal Year 2001-2002") in the principal amount set forth in Exhibit A and that
it is necessary that said sum be borrowed at this time by the issuance of a note therefor in anticipation of
the receipt of taxes, income, revenue, cash receipts and other moneys to be received by the Local
Agency during or attributable to Fiscal Year 2001-2002;
WHEREAS, the Local Agency has adopted a resolution or resolutions (collectively or
singularly, as applicable, the "Resolution") authorizing the issuance and sale of the Note in the name and
on behalf of the Local Agency;
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 (the "Issuers") will simultaneously issue tax and
revenue anticipation promissory notes for purchase by the Authority;
WHEREAS, under the Program, the Authority will form one or more pools of notes
(the "Pooled Notes") and assign each note to a particular pool (the "Pool") and sell a Series of Bonds
secured by each Pool pursuant to an indenture, dated as of July 1, 2001 (the "Indenture"), by and
between the Authority and Wells Fargo Bank, National Association (the "Trustee'', and sell each such
Series to Lehman Brothers Inc., as representative of the underwriters of the Program (collectively, the
"Underwriter");
DOCS7.A1:373955.
Exhibit "B"
Page 1
WHEREAS, if so indicated in Exhibit A, the payment by the Local Agency of its Note
will be secured in whole or in part (jointly, but not severally, with notes of the other participating Issuers
assigned to the same Series of Bonds) by a letter of credit, policy of insurance, proceeds received from
a separate bond issue issued by the Authority for such purpose (the "Reserve Fund") or other credit
instrument (collectively, the "Credit Instrument" to be issued by the entity or entities designated in
Exhibit A as the credit provider (the "Credit Provider");
WHEREAS, such Credit Instrument may be issued pursuant to a reimbursement
agreement, commitment letter, indenture or other agreement (the "Credit Agreement") as identified in
Exhibit A;
WHEREAS, in order to participate in the Program, the Local Agency has agreed to be
responsible for its share of the fees and expenses of the Trustee, and, if applicable, the Credit Provider
and the costs of issuing the Bonds, and the costs, if applicable, of issuing the Credit Instrument, which
anticipated fees, expenses and costs of issuance will be deducted from the purchase price set forth in
Exhibit A and which unanticipated fees, expenses and costs of issuance will be billed to the Local
Agency as the same may arise;
WHEREAS, the costs of issuance which will be deducted from the purchase price set
forth in Exhibit A for the Local Agency shall not exceed one percent (1%) of the principal amount of
each Note; and
WHEREAS, pursuant to the Pruguun, the Authority is submitting this offer to purchase
the Note pursuant to this Purchase Agreement
NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Obligation to Purchase. Upon the terms and conditions and in
reliance upon the representations, warranties and agreements set forth herein, the Authority shall
purchase from the Local Agency, and the Local Agency shall sell to the Authority, the Note, as
described herein and in the Resolution.
Section 2. Purchase Price. The purchase price of the Note shall be the purchase
price set forth in the pricing confirmation attached hereto as Exhibit A (the "Pricing Confirmation"). The
Note shall bear interest at an interest rate per annum set forth in the Pricing Confirmation, which is
hereby agreed to by and between the Authority and the Local Agency by its duly authorized
representative executing this Purchase Agreement on behalf of the Local Agency.
Section 3. Adjustments to Principal Amount of Note and Purchase Price.
The Authority and the Local Agency hereby agree that the principal amount of the Note purchased by.
the Authority and sold to the Authority by the Local Agency pursuant to this Purchase Agreement may
be reds ced, as determined by the Authority and each Local Agency, based upon the advice of Orrick,
Herrington & Sutcliffe LLP ("Bond Counsel"), in order that the proceeds produced from such sale of
such Note will be an amount which will not be subject to either (i) yield restriction (in order for interest
to be excluded from gross income under Section 103 of the Internal Revenue Code of 1986, as
amended (the "Code")) or (ii) a rebate requirement (under Section 148 of the Code). The Authority
DOCSrA1373955.
2
Exhibit "B"
Page 2
and the Local Agency hereby further agree that the purchase price of the Note shall be reduced as a
result of any reduction of the principal amount of the Note required by this section.
Section 4. Delivery of and Payment for the Note. The delivery of the Note
(the "Closing") shall take place at 8:00 a.m., California time, on the closing date set forth in the Pricing
Confmnation or at such other time or date as may be mutually agreeable to the Local Agency, the
Authority and the Underwriter, at the Los Angeles office of Orrick, Herrington & Sutcliffe LLP or such
other place as the Local Agency, the Authority and the Underwriter shall mutually agree. At the
Closing, the Local Agency shall cause the Note to be delivered to the Authority, duly executed and
authenticated, together with the other documents hereinafter mentioned, and the proceeds of the
purchase price of the Note set forth in the Pricing Confirmation shall be deposited in an amount
indicated in the Pricing Confirmation as the Deposit to Proceeds Fund which shall be held by the
Trustee for the Local Agency and the remainder in the Costs of Issuance Fund held thereunder.
If at any time prior to 90 days after the Closing Date, any event occurs as a result of
which information relating to the Local Agency included in the official statement of the Authority relating
to the Series of Bonds to which the Note is assigned (the "Official Statement") contains an untrue
statement of a material fact or omits 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 Authority and the Underwriter thereof, and if, in the opinion of the Authority or the
Underwriter, such event requires the preparation and publication of a supplement or amendment to the
Official Statement, the Local Agency shall cooperate with the Authority and the Underwriter in the
preparation of an amendment or supplement to the Official Statement in a fomr and in a manner
approved by the Authority and the Underwriter, and all reasonable expenses incurred thereby shall be
paid by the Local Agency.
Section 5. The Note. The Note shall be issued in substantially the form set forth
in the Resolution, without coupons in the full principal amount set forth in Exhibit A
Section 6. Representations and Warranties of the Local Agency. The Local
Agency represents and warrants to the Authority and the Underwriter that:
(a) All representations and warranties set forth in the Resolution are true and
correct on the date hereof and are made for the benefit of the Authority and the Underwriter as if set
forth herein.
(b) The information relating to the Local Agency included in the Official Statement
does not contain any untrue statement of a material fact or omit to state any material fact necessary to
make the statements therein in light of the circumstance under which they were made not misleading.
(c) A copy of the Resolution has been delivered to the Authority and the
Underwriter, and the Resolution will not be amended or repealed without the consent of the Authority
and the Underwriter, which consent will not be unreasonably withheld.
(d) The Local Agency acknowledges that the Authority is authorized to execute the
Indenture, to assign the Note to the Trustee under the Indenture and to issue the Series of Bonds
pursuant to the Indenture.
DOG4.A1373955.
3
Exhibit "B"
Page 3
(e) The Local Agency shall provide the required Payment Account Deposit
Certification (upon a request therefor) in accordance with Section 5.06 of the Indenture.
(f) The Local Agency has not issued and will not issue any obligation or
obligations, other than the Note, to finance the working capital deficit for which the Note is being issued.
Section 7. Conditions Precedent to the Closing. Conditions precedent to the
Closing are as follows:
(a) The execution and delivery of the Note consistent with the Resolution.
(b) Delivery of a legal opinion addressed to the Local Agency (with a reliance letter
addressed to the Authority and the Underwriter), dated the date of closing of Bond Counsel with
respect to the validity of the Bonds in form and substance acceptable to the Authority and the
Underwriter.
(c) Delivery of a legal opinion, dated the date of Closing, of counsel to the Local
Agency, with respect to the due authorization, execution and delivery of the Note, in four and
substance acceptable to Bond Counsel.
(d) Approval by the Credit Provider of the credit of the Local Agency and inclusion
of the Local Agency's Note in the assignment, together with notes of' other Issuers, to a Series of
Bonds, to secure the Series of Bonds, which approval in the event the Credit Instrument is the Reserve
Fund shall be evidenced by the issuance of an "SP-1+" rating with respect to the applicable Series of
Bonds by Standard & Poor's Ratings Services.
(e) Delivery of each certificate, document, instrument and opinion required by the
agreement between the Authority and the Underwriter for the sale by the Authority and purchase by the
Underwriter of the Series of Bonds to which the Pooled Note is assigned
(f) Delivery of such other certificates, instruments or opinions as Bond Counsel
may deem necessary or desirable to evidence the due authorization, execution and delivery of
documents pertaining to this transaction and the legal, valid and binding nature thereof or as may be
required by the Credit Agreement, as well as compliance of all parties with the terms and conditions
thereof.
•
Section 8. Events Permitting the Authority to Terminate. The Authority may
terminate its obligation to purchase the Note at any time before the Closing if any of the following
occurs:
(a) Any legislative, executive or regulatory action (including the introduction of
legislation) or any court decision which, in the judgment of the Authority, casts sufficient doubt on the
legality of obligations such as the Note, and the tax-exempt status of interest on obligations such as the
Bonds, so as to impair materially the marketability or to reduce materially the market price of such
obligations;
(b) Any action by the Securities and Exchange Commission or a court which would
require registration of the Note, the Bonds or any instrument securing the Note or Bonds under the
DOCSLA9373955.
4
Exhibit "B"
Page 4
Securities Act of 1933, as amended, in connection with the public offering thereof, or qualification of the
Resolution or the Indenture under the Trust Indenture Act of 1939, as amended;
(c) Any restriction on trading in securities, or any banking moratorium, or the
inception or escalation of any war or major military hostilities which, in the judgment of the Authority,
substantially impairs the ability of the Underwriter to market the Bonds; or
(d) The Underwriter terminates its obligation to purchase the Series of Bonds to
which the Note is assigned pursuant to its agreement with the Authority for the purchase of such Series
of Bonds.
Neither the Underwriter nor the Authority shall be responsible for the payment of any
fees, costs or expenses of the issuance, offering and sale of the Local Agency's Note except the
Underwriter shall be responsible for California Debt and Investment Advisory Commission fees and for
its own internal costs. The fees, costs and expenses that are categorized in the "Costs of Issuance"
definition in the Indenture shall be paid from the Costs of Issuance Fund. The Local Agency shall pay
any additional costs attributable to it as set forth in the Resolution other than the fees, costs and
expenses so payable from the applicable Costs of Issuance Fund.
Section 9. Indemnification. To the extent permitted by law, the Local Agency
agrees to indemnify and hold hamnless the Authority and the Underwriter and each person, if any, who
controls (within the meaning of Section 15 of the Securities Act of 1933, as amended, or of Section 20
of the Securities Act of 1934, as amended) the Authority or the Underwriter, and the officers, directors,
agents and employees of the Authority and the Underwriter against any and all losses, claims, damages,
liabilities and expenses arising out of any statement or information in the Preliminary Official Statement
or in the Official Statement (other than statements or information regarding an Issuer other than the
Local Agency) that is untrue or incorrect in any material respect or the omission or alleged omission
therefrom of any statement or infomiation (other than statements or information regarding an Issuer
other than the Local Agency) that should be stated therein or that is necessary to make the statements
and information therein not misleading in any material respect.
Section 10. Credit Agreement. The Local Agency shall comply with all lawful and
proper requests of the Authority in order to enable the Authority to comply with all of the teens,
conditions and covenants binding upon it under the Credit Agreement.
Section 11. Notices. Any notices to be given to the Underwriter under the
Purchase Agreement shall be given in writing to Lehman Brothers Inc., 601 S. Figueroa Street, Suite
4400, Los Angeles,CA 90017, Attention: Kevin O'Brien. Any notices to be given to the Authority
under the Purchase Agreement shall be given in writing to the Authority, 1100 "K" Street, Suite 101,
Sacramento, CA 95814, Attention: Secretary.
Section 12. No Assignment. The Purchase Agreement has been made by the
Local Agency and the Authority, and no person other than the Local Agency and the Authority or their
successors or assigns and the Underwriter shall acquire or have any right under or by virtue of the
Purchase Agreement. All of the representations, warranties and agreements contained in the Purchase
Agreement shall survive the delivery of and payment by the Authority for the Note and any termination
of the Purchase Agreement
DOCSLA7373955.
5
Exhibit "B"
Page 5
Section 13. Applicable Law. The Purchase Agreement shall be interpreted,
governed and enforced in accordance with the laws of the State of California.
Section 14. Effectiveness. The Purchase Agreement shall become effective upon
the execution hereof by the Authority and execution of the Pricing Confrmation by the Local Agency,
and the Purchase Agreement, including the Pricing Confirmation, shall be valid, binding and enforceable
from and after the time of such effectiveness.
Section 15. Severability. In the event any provision of the Purchase Agreement
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 16. Headings. Any headings preceding the text of several sections hereof
shall be solely for convenience of reference and shall not constitute a part of this Agreement, nor shall
they affect its meaning, construction or effect.
DOCSLA1373955.
6
Exhibit "B"
Page 6
Section 17. Execution in Counterparts. This Purchase Agreement may be
executed and entered into in several counterparts, each of which shall be deemed an original, and all of
which shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Purchase Agreement to
be executed by their duly authorized representatives as of the Purchase Date set forth in Exhibit A
attached hereto and incorporated herein.
DOCSLA1373955.
CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY
B
Member of the Commission
of the Authority
7
Exhibit "B"
Page 7
EXHIBIT A
Pricing Confirmation Supplement
Local Agency: City of National City
Pricing Information
Principal Amount of Note:
Interest Rate on Note:
Re -Offering Yield:
Purchase Price
Default Rate:
Purchase Price:
Less: Cost of Issuance:
Credit Enhancement: %
Deposit to Note Proceeds Account:
Important Dates
Resolution Date of Local Agency:
Purchase Date:
Closing Date:
Maturity Date:
Interest Payment Date(s):
Note Payment Deposit Date:
First Pledge Month Ending:
Pledge Amount:
Pledge Percentage:
Second Pledge Month Ending:
Pledge Amount:
Pledge Percentage:
Investment Agreement Information
GIC Provider
Long Tenn Ratings (S&P/Moody's)
Short Term Credit Ratings (S&P/Moody's)
Interest Rate on GIC
DOCSLA1373955.
Al
$
•
Exhibit "B"
Page 8
* By initialing the box at the end of this paragraph, the undersigned Local Agency
certifies that, in connection with the issuance of the Note under the Resolution and after reasonable
inquiry, it is the reasonable expectation of the Local Agency that the aggregate amount of all tax-exempt
obligations (excluding private activity bonds) issued or to be issued by the Local Agency during the
2001 calendar year, incbuding the Note, all other notes and bonds, and all tax-exempt leases, executed
or delivered during the 2001 calendar year will not exceed $5,000,000 (See Section 3.8 of the
Certificate of the Local Agency if the Local Agency is unable to make this certification). ❑
Investment Alternative - Initial the appropriate box relating to the investment of
proceeds received from the issuance and delivery of the Local Agency's Note:
Initial
One Box
Yes, the undersigned directs the Trustee to invest the
proceeds received from the issuance and delivery of the Local
Agency's Note in the Guaranteed Investment Contract Yes
described on page A-1.
No, do not invest the proceeds received from the issuance
and delivery of the Local Agency's Note in the Guaranteed
Investment contract.
No ❑
IN WITNESS WHEREOF, the Purchase Agreement, including this Pricing
Confirmation, is agreed and accepted to on the Purchase Date set forth above.
City of National City
Authorized Representative
* Please initial the box only if applicable to the Local Agency.
w
DOCSLA1:373955.
A-2
Print Name of Person Signing
Exhibit "B"
Page 9