HomeMy WebLinkAboutPCDC Resolution 88-16 10/24/1988
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10/19/88 0430
' RESOLUTION NO. ~ v a
RESOLUTION OF THE PETALUMA COMMUNLTY DEVELOPMENT COMMISSION
AUTHORIZING' CERTAIN AMENDMENTS TO THE RESOLUTION
OF ISSUANCE AND AUTHORIZING THE EXECUTION, DELIVERY
AND APPROVAL AS TO FORM OF CERTAIN AGREEMENTS
IN CONNECTION THEREWITH
WHEREAS, the Petaluma Community bevelopment Commission (the
"Commission") is a redevelopment agehcy (a public body, corporate
and politic) duly created, established and authorized to transact
.business and exercise ias powers, all under and pursuant to the
Community Redevelopment Law [Part 1 of Division 24 (commencing with
Section 330.00) of the Health and Sa°fety Code of the State of
California]~(the "Act"") and the powers of such Commission include
the power to issue notes for any of its corporate purposes; and
WHEREAS, a Redevelopment Plain for a redevelopment project known and
designated as the' "Petaluma Community Development Project" has been
adopted and approved by Ordinance No. 1725 N.C.S. of the City of
Petaluma, and all requirements of law for and precedent to the
adoption -and approval of said Redevelopment Plan have been duly
complied with; and
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;WHEREAS, for the corporate purposes of the Commission to aid in the
financing of. a portion of the cost of the Petaluma Community
Development P'ro°ject (the "Project"), the Commission proposes to
issue certain tax allocation notes; and
WHEREAS, it is desirable at this time that the Commission consider
the issuance of tax allocation notes to provide for the financing of
a portion of the cost o`f the Petaluma Community Development .Project
and that the Commission consider the sale of said notes designated
a,s the '`Petaluma Community Development Commission, Pe al.uma
==Community Developmen Project, Tax Allocation Notes, Series 198'8"
(the "Notes") in an aggregate principal amount not to exceed
$4,195,000 to Municicorp of California (the "Underwriter"), by
.negotiated sale as authorized pursuant to Government Code
Section 5903(b); and
WHEREAS., the ~ Commission must also authorize t`he execution and
delivery of certain related legal documents in connec-t ion with the
issuance .of the Notes and approve same` as to form as hereinafter set
forth; a'nd
WHEREAS, Bank of America National Trust and Savings Association (the
"Trustee"') and the- Underwriter may require certain changes,
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modif-ications and. amendments to the Resolution of Issuance to
clarify matters or questions arising u,nde;r,, or to curve. any ambiguity
or defect or inconsistent provisions within the Resolution of
Issuance and, to, ~ncorpor>a.te the specific f.inanc.^aa t:e;rms and '
prov'-isons of the f sra~le <of;'~ tfie, ~ Not:es by the Commis on to the
Underwriter when the ,fnal.terms have been ascertained on or prior
to the date of the actual is uance and. delivery of the Notes; and
WHEREAS, t:he Commission has duly and reg.u,larly adopted' its
Resolution, entitled:
RESOLUTLO,N OF T,HE PETALUMA COMMUNITY DEVELOPMENT
COMMISSION AUTHORI-Z'ING THE ISSUANCE OF AN
AGGREGATE PRINChP.AL AMOUNT -.NOT TO EXCEED
$4,195,000 O:F TAX ALLOCATION NOTES QE SAID
COMMISSION TO, FINANCE A PORTION OF THE COST OF A
REDEUELOPMEN_T PROJECT. -KNOWN AS THE PETALUMA
COMMUNITY DEVELOPMENT PROJECT
hereinafter referred to as t'he "Resaauaion of Issuance''; and.
WHEREAS,, rr connection with the: issuance of the Notes the Commission
desires to lend periodically certain funds to the resolving fund in
connection with. the P'roj'ect .(.the ";Revoaving .Fund";) commenc,i_ng in the
1988'-89 fiscal ye'a:r f r;om any source of legally available funds of
the Comm''iss'on; and
WHEREAS, th`e Commi;satin agrees herein to' repay such fioans, to the
Rewo ~in,g Fund from. certain ta.x increment revenues which may ~bec:ome
aval,ab;l.e to th°e Commission from the Project; and
WHEREAS, such Loans from the Commission to the Revoavin~g Fund will
enable the Gomm Sion to mee„t its ob'Ligations pursuant. to the to-rms
o~f the Resolution o<f Is'suance;; and
WHEREAS', it is necess.a:r"y, f:or the Commission by this Resolution to
consider fhe authorization .and. approval of certain amendments to the
Reso ut;on of Issuance as such, Resolution of Issuance ma,y be
amended, modified and changed sub egient to the app,rova.l of the
Resoluton of I suance through and including the date of issuance
and d'el,very of the Notes.,
NOW, THEREFORE, B.E IT RESOLVED, BY THE PETALUMA COMMUNITY
DEVELOPMENT COMMISSION AS' FOLLOWS::
Section 1. The Commission hereby approves the Resolution of
Issuance together with such change modifications and amendmen;t,s as
may be: ap-proved by the Exec-utiv'e Director or the Treasurer o.f the
Commission upon the recommendation of Bond. Counsel. A.l terms no:t
otherwise specified in the Res:oTU`ton o;f Lssuance shall be tho e
terms and p.r:ovsions as may be se't forth in the Purchase, Contract as
attached hereto a~s Exhib,it "A" (the "Purchase Contract") and as
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shall be 'set forth in those certain amendments to the Resolution of
Issuance approved 'by this Resolution.
The Commission Chairman, the Treasurer and/or Secretary of the
Commission are hereby authorized 'and directed to execute the final
form of the Resolution of Issuance which shall set forth the final
terms and provisions of the sale of the Notes when the final terms
have been ascertained by the Underwriter based upon the most
favorable market conditions then. available in the municipal bond
market, together with such amendment-s, modifications and changes as
may be required by the Ag,en , and as such amendments, modifications
and changes. may be approved by the Executive Director or 'the
Treasurer of the Commission upon the recommendation of Bond Counsel.
Section 2. The Commission hereby approves and appoints the firm
of Municicorp of Ca-l~ornia (the "Underwriter"), as the. investment
banker and the initial purchaser of the Notes in connection with the
issuance of the No es and said firm shall be the initial purchaser
of the Notes pursuan-t to the Purchase Contract.
Section 3. The Commission hereby appon s Bank of America
National Trust and Sayings Association as Trustee under the
Resolution of Issuance.
Seet~ion 4. The. Commi si.on hereby authorizes the Commi s:ion
Chairman, Executive Director, the Treasurer and/or Secretary of the
Commission. or other autho;rize'd officer of the Commission to enter
into•~,the Purchase Contract substan.t.ally in the form as presented at
this meeting. Said Purchase Contrast shall p'rowide for: the sale of
the Notes at a negotiated sale pursuant to Government Code
Section 590.3(b). The Notes sha1T be issued in an aggregate
principal amount not to exceed $4,195,000 or such lesser amount as
may be approved by the Commission. The Notes. shall bear interest
not to exceed, the rate of fifteen percent (15%) per annum as s.et
forth .in the Purchase Contract, payable .commencing on November 1,
1988, and semiannually on each May 1 and November 1 thereafter until
the maturity date of the. Notes being November 1, 1993; provided,
however, that. any refund g obligations in, connection with the Notes
shall be subject to interest rate limitations set forth in any
f:u,tu_re resolution of the' Commission.. The Notes shall be sold., and
t'he Purchase Contract s;h:all so provide, at. an initial diseoun.t as
shall be a,ppro~ed. by the '&xecutive Direc or or the Treasurer of the
Commission upon- the recommendation of Bond Counsel.
The Commission Gh"airman, Executive Director, Treasurer and/or
Secretary of the Commission or other- authorized officer of the
Commission, as a;pp•r-:op'riate, are hereby authorized and directed to
execute and deliver the final-form of thePurchase Contract which
shall set forth the final terms and provisions of the sale of the
Notes by the Commission to the Underwriter when the final terms have
been assert-dined by the Underwriter ba ed` upon the most favorable
market conditions then available in the municipal bond market and
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when delivered shall be considered to. have been approved. by the
Commission pursu-ant to th Resolu.tiori._ The CommiSsign furaher
approves the Purchase Contract subs=ta'nt;iall.y in the fo-rm as attae'hed
he-reto together with sucY chari:ge modifications an_d ame~ndment;s as
may be approved by the Exeeu•tiv:e D.rect:or or t'he Treasurer of the
Commission upon the recommendaton,of Bond Counsel.
Section S. ~ The Commission hereby agrees to t;ransfer~ annually to
the Revolt'.-ng Fund certa°n "sums. of money, as more fu11y~ deanrbed
herein., as a loan to the Revolv;in,g Fun'd',. which loan shall be repaid
:from time to time, in whole nor in part, from tax increment revenue ,
if :any, which, may be gene;rat;ed' by t`he Projeca and/o.r from other
legally available funds oaf the Commission ava~Table the.r•efor. T:he
moneys shall be transferred pe~riodi.cally .by the Comm"scion. a• a loan
to the; Revo1°ving Fund pursu=ant to this Resole i:on •n any .f'.iscal year
commencing a;f t'er the .,19:8-8fi9 f'is:cal year . Each such Loan. aha l be
made by the Gommis~sion to the Revolving Fund o,n e;ach, Ap~ri~l l and
October 1 cgmmencing• Ap,r~l 1, 19'90,, as necessary, in such amounta as
may be necessary to pay the debt service on the Notes (nclud''ing, by
way of examp'Ie, but not lim`taaion, any Sinking Fund. Accq ant :payment
required to be made hereunder or under the Resolution of Issua-nee)
taking into acco.un~t' tax increment revenue generated by t'Yie .Project
available to the Commission to• pay debt service on the Notes (the
"Loan") : The amounts transferred by t"he Commission as ~a lo,an to the
Revolving Fu°nd pursuant to th,i;s Res'olut.on shall be< •t,ransfer:r:ed :from
any source o,f l.eg`ally awa;lable .funds of the 'Commis,"ion i•n the
amount as cai~cu ,ated ,'hove, including tax increment g;en~er,at:ed. in.
other project areas.: The owners' of; the Notes shall be deemed to be
third-party 'benefici,a'r~es of such loans.
:The Commission shall not cons.id'er any amou'nt=s transferred purs'irant
to 't'h'is Re olu•t,on as a~n indebtedne s o~f the Comm;ss:i•on asp t;he_ same
may -be eatabli- hed by the Commission in accordance with
Section 33.675' o:f t•he Law.. The repayment obl;gat:gn of the
Commissoh shall be from the taz- increment revenue toy be g,ene:~rated
within t°he Pr,o:ject Are°a and/o'r from other funds; if any; legally
available to t`he Commission :for this purp;o a (the "Loran Repayments")
and such re;payrnent obligation shall be subordinate t'o the Notes and
any' ocher ob,lg.at~i.on o'f` the Commission for r.ep~ayments: to be made
£rorn such tax increment revenues. The Commission hereby covenants
-and agrees that a`s long as -there a°re Notes outstanding, .t shall not
issue any bonds and/or notes, for any of its cor,porat,e purposes.
However.,. ahe Commis ,on m'at' make loans, advances or nc-ur other
forms of ndebtedne s in co-,nnection with any o;f its redevel.opcnent
projec areas: in an aggregate°amount no-t to exceed $i0~U,00A p'er year.
Each Loan shall mature on November. l,, 1.993 and a~ha11 b_e;ar interest
at the rate: ataributabae to amounts on deposit in the Sinking Fund
Ace'ount es;t:ablsh'ed by the Reso`lu.ton of Iasuance cahculat:ed on a
y year consist"ing off twelve (;12) 3O-:day months.
basis o,f a 3~6•A-da
Each Loan may be prepaid n whole or in part °ab a'nt' time.
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It is hereby acknowledged, agreed and stipulated that the repayment
obligation of the Commis io;n for the Loan described in this Section
and in any concur°ring. Resolution of the Comm-i;ssion reg.'arding said
loans shall at ala times be subordinate to the rights of O the
owners of the Note's to receive the t;ax ine,rement revenues
attributable to the Project and (ii,) any holders of future bonds or
note authorized and issued by the Commss;ion,; and,,: further, that
the indebtedness of the Commission under the Resolu ion of Issuance
sha.l<1 be a f-first' a_nd prior, pledge of the tax increment revenues and
a lien thereon for the benefit of 'the owner's of the Notes..
Sec-€ion 6. It is hereby acknowledged acrd a.greed~ by the Commisai~on
that the amounts transferred. by the Commission to the Revolving Fund
' as a loan pursuant to Section 5 hereof; may be paid on a semi-annual
basis to the Trustee for 'the Commission and shall be utilized in
whole or in part to meea the debt service requirements on any forms
of indeb edness incurred by theRevolving Fund to ful,fi,ll the
obligations of the Revol.uing Fund pursuant. to the terms. o>f the
Resolution of Issuance. The repayment ob ig;aton of the Revo,l.ving
Fund for the loans from. the Gommss;ion described in Section 5 of
this Resolution and any concurring Resolution of the Commiss--on.
regarding any ..and all of said loans shall at all times be
subordinate to the N"ote Any and a.ll indebtedness of ~ the
Commission heretofore neur;r'ed (o•ther than debt sued by ,the
Commis ion in connection with its Petaluma Central `Business District
Redevelopment P'rojec ) shall not constiaute a prior lien with
respect to the debt service on the Notes as' to either the tax
increment revenues received: from the Project or any other legaaly
available funds of the Coinm`ission.
Section. 7. The Commis ion hereby authorizes the Commission
' Chairman, Secretary, Tr'easur'er o`f the Commission and Executive
Director together with any other appro,pra'te City or Commission
Staff members or eaected, officials to exec:u e such documents a's may
be reasonably nece ~sary to consummate the issuance, sale and
:delivery of the Notes as contemplated herein: A11 such documents as
may be eXecuted by such officials shall be subject to the approval
of the Executive Director or the Treasu~:rer; o;f the Commission. upon
the recommendation o'f B'ond Counsel. and when delivered s~ha,ll be
cons:de~red to have been approved by the Commission pursuant to this
R'esolut-ion.
Section 8. The Tre;a;surer of the. Commissip;n and/or the Executive
Director, as appr,o;p:ria'te, are hereby authorized to make o:r cause to
be made all transfe°rs and deposits of funds as are necessary and
desirable to ef;fect:ua.te the proceedings 'for the issuance of the
Notes and the proper use of the Note proceeds.
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Section 9. The Comm-ssi,on approves the Pre;lim,n;ary Official
Sta'teinen•t as attached hereto as 'Exhibit "Bs" (°t'he "Preliminary
Offic:a Sta;tement.") and hereby authorizes and d~r--ects the
Underwr`ite'r, ~ •with the approval of Bond Counsea, to convert the
Preliminary O.ffici~aa Statement into the Fna O'ffi.cal S•tat'ement an;d
make, any changes to e`ffectu~a;te such conversion as they deem
necessa°ry or desirabae and to furnish the ap,p°ro,priate numbers of
copies of s;a:d Final 0"ffi•c;a1 Statement to the• p.urcha ers of the
Notes'. Thee. ChFa.irman, Exeeu.tive D:i:rect`or, the Trea~su.rer and/'or
Secretary of the Commission .or such, other author,;z.ed, o-f;f;ices of the
Commission, a`s' appr.o;pria•te, is heareby authorized, and d•rec~ted to
execute the Final. O:f`f.icial Statement when approved by the Execut°Yve
Director or the Tr.e°asurer of the Commission upon tlie' re,eommendation
of Bond Counsel where and a=s indicated.
Section 10. A1.1 cos s of is;suanc'e, o~f t'he Notes; ar'e hereby
authorized to '.be paid. in confo:rmit:y w"it'h the; contracas and
agreements relating t'her.eto °a;s shall be apprgved by tahe Execu't"ive
Di rector or' t°he. Trea carer o'f the Commission, and he• payments of the
. various items of such costs as t;he same a;re~ ,approved; by the
Executive D:ir'e,ctor `o-r= 'Tr,eaaur.e`r o°f the Commis~s.ion are he"r,eby
authorized, and to the maximum extent poss;ibl sh=a11 be made at: th:e
time of del,very.of the Nbtes. '
Sect..on T1, A1:1 actions a°nd proceed;ings her.et:ofo•r~e t.a`ken in. t'he
authoriz:aton,~ ,,ssuan`ce arid. `s`ale of the No es a.re he°r.eby ratified
and confirmed.
Secton_12 The Chairman, the Execut;iv.e Director, the Treasurer
and/or S;ecr:e:targ of the Commission a,n'd the ap:p~ropr;.a.t.e Commission
Staff or sucYi ofhe~:r a.uthoriz:ed officer of the Commiss'ion:; o.r ethe:r
or any' thereof, and other grope°-r officers of the Commission a.r'e
hereby au.t~hox'ized and directed to execute and deli er any and all
c,los`:ng documen s,; c'e;r'ti,fcat°es,, pa.pers and nstFr-omen;ts in
eonnect'on with t-he issuanc°e, s`a'le and del,idery of "the Notes .and t.o
do and cause: to be done any and a11~ ac s and thing necessa°ry o;r
proper fo':r carry.;ng out the' delive'r_y of the Note s° to t•he pur,c;;ha,ser_s
thereof, as contemp~l~akt.ed by `this 'Resolution, and to c,a,u`se. 'all. of the
proceed;n.gs relating he;re.to to co f°orm to such transactions as more
particularly descr'_bed ;n sa•,d •O.ff~ca,l Sta;tememt.., and, to a.p.pxove
the payment by t`he Tr-uste.e of the cost"s of issuance of the 'Notes at
the time of delivey thereof (:the: "C°losng") in accordance with the
• statements p'res:e ~ted and to pp;_rov,e the b':aaan'ce °o,f; the colst of
~s~suarice o-f the- `Notes as soo"r`i~ as po~s~sib"Le faollowi~ng~ t'he C1o ~in~g.
Page 6 o:f 7 ~ 6
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Section 13. This Resolution shall take effect upon adoption.
PASSED AND ADOPTED at a regular meet~~ 2o4f 19t8~e Petaluma Community
Development Commission held on 1988, by the
following vote:
Commissioner AYE NO ABSENT
Woolsey x
Sobel a
Tencer x
Cavanagh x
Balshaw a
Vice Chair Davis x
Chairman Hilligoss a
- - _ MAX ~~X~-Xl~ X~~~~~XXX
" ~ ~ ~ , Michael Dads, `Vice Chairman
~ .
A . ATTEST : °
~f ~ /
P. Ber_r~~rd, Recording Secretary
~ ~ f
P
ET•c~ 0'0.0-5:/ 0 3 2 6 P
Page 7 of 7 ~ ~ v
EXHIBIT "A''
NOTE PURCHASE-.AGREEMENT
Petaluma Community Development Commission
(,County of Sonoma, California)
Petaluma Community Development Project
'Tax Allocation Notes, Series 1988
October , 1988
Petaluma Community Deve opment Commission
it English Street
Petaluma., California 94952
Ladies and Gentlemen.: '
MunciCorp of California (the ",Purchaser"), .offers to .enter
into this. Note Purchase Agreement with the Petaluma Community
Development Commiss_io-n (the "Issuer"). This Note Pur-chase
Agreement shall become binding upon you and upon-the Purchaser,
upon acc-eptance by you by ,your execution and delivery hereof to
the Purchaser on or prior to 5:00 p.m., Pacific time, on the
date written above.
1,. Purchase and Sale of the Notes„~ Fee to Purchaser. On
the basis of the representations and agreements contained herein,
but subj~eet to the terms and cond~itor?s herein s'et forth, .the
- Purchaser hereby agrees to purchase from the Issuer f.or
reoffering to.fihe public, and the Issuer hereby agrees. to sell to
the Purchaser for such purpose, aggregate principal
amount of the Issuer~'s•Petaluma Community Development Project-Tax
Allo"cation Notes., Series 19:88 (the "Notasn:), dated November i,
198'8 and maturing on November 1, 19.93.,. at a purchase price of
of "the-principal„ amount thereof, plus accrued.inter.est, if
any, to the Closing Date (as def°ned below,) . The. initial rate
of interest, on the Notes ;shall be as provided; on Exh°ibit A hereto
and in the Resolution of Issuance {as defned.below). The Notes
are authorized 'to be is ued pursuant to and in full compliance
with 'the Constitution of the State of CaTiforma~(the "'State")
and the statutes of the 'State, includ'rig particularly Sections
33000 et ~seg, of the:, California Health and Safety Code '('the
nAct") and a certa-in Resoauton of the Petaluma Community
Development Commsson_ Authorizing Cer--fain Amendments to the
Resolution of Issuance and Authorizng`the Execution, Delivery
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and Approval as tp Form o:f'Certan~Agreements in connection
therewith and under and pursuant to a r-esoluton'of issuance of
the Issuer relating to~the:Notes (col ectvely, the "Resolution
of Issuance"`:)~. The Not:e's sh"all be as described in, and subject
to redemption ~as provided in, the Resolution of Issuance.
- Pursuant to and subject to th'e terms o'f this Note:Purehase
Agreement, the Issuer~shal_1 be obligated: to se1.1. simultaneously
all. of the Notes to the Purchaser, and the Purchaser shal,l:be
obligated to purchase al of the. Note's,, and the entire ,aggregat`e
principal amount of the; Notes shat be delivered°by the Issuer
and accepted and paid for by the Purchaser on the Closing Date.
The Iss.uer'shall deliver the Notes. to the Purchaser in -
defnit°~e form against payment of the pur,ch~a"se. price therefor by •
check or checks payable in immediately avail,a~ble funds at the
offices of'Sabo & Detsch, A Professional Corporat°,on, Note
Counsel, in Woodland Hi11s, California,-at `10:.00 a.'m.,; Calif;ornia
time, on November 1, 1988, or such other date or a~t such other
time or place as may be mutually agreeable to the Purchaser and
the Issuer;; such time-is referred to herein as the nClosing Date"
or the "Closing." The Is uer' steal°1 .make the Notes a~a~lable for
inspection by the Purchaser at least twenty-four- (2.4) hours prior
to the Closing Date_at. a place to be designated by the Purchaser:
The ,Notes ,sh'a~ll b'e delayer-ed in the form and denominations and
shall be otherwise as described' °n. the Resolution of ,Issuance,.
Notwithstanding anything in this,Section l tb the contrary,
'the 'Purchaser may elect to take delivery of the' Ngtesin
temporary form at the Closing. In such event,.. the Not'es• in
.definitive. form hall. be delivered within four--teen (14`) days
after the Closing.
The Purchaser 'agrees to make- a :bona fide offering of th`e~
':Notes:, pursuant solely to the Official Statement ('as defined in
Section 2 of~ th Note 'Purchase.. Agreement) , at 't'he initial
offer-.:ing pr,ices~ set forth. in the 0.fficial Statement, :reserving,
h~owe~er, the right O to change such initial offering price as
it may deem. necessary in connection with the market-ing .of the
Notes and (ii) to offer and' sel-1 the~Notes to dealers and others,
including th~e;Purchaser and dealers acquit-ing the, Notes for their
own .account or an account. managed by them,, ~at coi?cess•ions to be
determined by the Purchaser. The ,Purchaser al_so:rese~rves the
~rght to bverallot or, effect Transactions that, stab~lze or°
maintain the .market price of the Notes at a level above that
hieh might otherwise prevail in the open market ~and,to
discontinue such stabilizing, if: commenced, .at any f-me.
~2. Documents To Be.Delwered'by Issuer. On or prior to
the Closing Dafe~, the Is uer ;sha-1;1 del ve~r to the. Purchaser (in
form'and substance acceptable to the Purchaser): the followings
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. ' IsYt ~M 3 ~'.2•~M I_ .5~ V5. ~L4 d 4 ~i:.1'.
.(,i) Three (3) copies o,f t'he final Official Statement
dated October 1988 of the I'ssuer`relating to the Notes (the
"Off,cia'1„Statement," preliminary'versions of which are collec-
tively referred to herein as the "Prel,mnary, O€fieial Statement"
but may be referred to in either manner as the context :hereof
requires) and of any amendment or supplement thereto, duly
executed on behalf of Issuer by an of'ficia'l acceptable to the.
Purchaser;
{ii) Three (3) duly executed copies .of the Resolution
of Issuance;
(iii) Three (3) duly. executed copies of the Resolution
of the City Counel of the City of Petaluma, California,
approving the issuar?ce by the Petaluma Community Development.
Commission of its Petaluma Community Development Project, ,Tax
Allocation Notes,. Series 1988, in an 'aggregate principal amount
approximately equal to $[principal], and making certain
determinations relating thereto (the "'City Resolution"); and.
(iv) Such other documents as the Purchaser may
reasonably request and a's required he_r-eunder, including the
certificates and op`inio?s.required pursuant to Sect-ion 6 hereof.
The Issuer agrees'to provide the 'Purchaser with such
' reasonable number of additional .copies,of~each of the foregoing
as°~the Purchaser sha-11 requ°est, and the.. ..Issuer authorizes,
ratifies and consents to .the .use of the foregoing in connection
' with the offer, sale and distribution of the Notes.
' 3. Issuer's Representations. Warranties and Covenants.
The Issuer represents and warrants to and covenants with the
Purchaser that:
. 3.1 The Issuer is a duly created and lawfully
existing "Agencyn as defined in the Act, and has, and at the
Closing will have, full legal right,. power and authority (i) to.
adopt the Resolution of Issuance; (ii') to enter into this Note
Purchase Agreement; (iii,) to issue., sell and deliver the Notes;
and (_iv); to carry-out and to consummate the transactions
contemplated by this Note-Purchase Agreemen_t;, the City
Resolution, the Resoauton o,f Issuance and the Official
Statement„ as each of the foregoing may be amended or
supplemented from time to time by Issuer.
3.2 - 'The issuance, sale and delivery of the
Notes, and the execution and delivery'o`f, and performance of its
obligations under,,, this Note Purchase 'Agreement, and the
consummation of the. transactions contemplated by either of the
foregoing; the City Resolution,, the Resolution of Issuance and
the Official Statement-have been. duly authorized by the Issuer;
(ii) the Resolution of Issuance has been duly adopted by the
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Is .u'er, has not been. amend'ed;, modified or repealed, and is in
ful'1 for.c`e .and effect on the date hereof ('iii:) the Note Purchase
,Agreement has been duly:executed'and delivered by the Issuer .and
constitutes the 1'egal, valid and ;binding obligation of the
Issuer, enforceable in accordance with its term , subjeet .only to.
' bankruptcy,, ins`olvency,; ~reorgan~izat-ion., moratorium and other
similar aws affecting the rights: of creditors generally and the
exerese of j_udical'discr,etion n_accordance with genera3
prine'ipl.es of equity; and. (iv',) when. the. Notes are 'issued',,
authenticated and delivered in accordance with the Resolution of •
Sssuance•,, the. Notes wT be the legal, valid and binding;
obligations of the Is,suer,. enforceable in accordance with their
terms, subject to bankruptcy, insolvency, reorgan'zaton,
moratorium and other ,similar laws affecting creditors'' rights
generally ar?d the exe.rese;.o`f judicial discretion in accordance
with gen_eraT pr,r?ciples of equity, and wil'1 be entitled to the
benefits of, and wi•11 be secured by, the Resolution of :Iss:uanee~.
'3".3 The.. Issuer will apply the proceeds: from,, the s;a_l.e
of the Notes~a~s specified in the Resolution of'`Issuance; and the
Official :Statement.
`3'.4 The information in the Preliminary Of:fc.al,.
Statement.., as of , ,ts date, did not contain.. ,any untr-ue statement
of a mat'er•ial fact or, omt° to state .any material fact that should
• have been included"therein for the .purpose for which the
:Preliminary Official Statement was to be- used- or- that was
necessary ,in~ or-der t9 make. th'e statements contained therein,. in
the ,light of the circumstances under which they were made, not
ms~lead~ng.
3'.5 The information contained in the O;ffieal
_ _ _
Statement as of ,its date and as o:f th_e Closing will. not ,contain -
y ent of a°matera`1 fact or omit. to fate ariy ,
mater•alufactathat°should be nclizd'ed therein for the purpose for
which the Official" 'Statement is to' be used, or- that is necessary
in ,order to°make the statements confined therein, in light o;f
the circumstances under which they are made, not maisleadng.
3.6 The, Issuer will not` take or omit to take, as .is
appropriate.,. :any,act'on that would adversely a.f.fect the State
taX: exemption. of; interest on, the Notes; a•nd,, without l:mitati~on
• on the foregoing, the Issuer w:la comply with all provisions .of .
the Resolution of `Issuance, and `all other agreements to which it
is a party and which relate to the maintenance of; the exemption
from State income taxes of interest on the Notes.
3,7 The Issuer ha_s complied., and will a;t the~Clos:ng
be in compliance, in ala respects, with the Res'olutorn of
I's'su"a~nce .
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3.8 By official action of the Issuer prior to or
concurrent with the acceptance the~reo;f,, but-.in any event prior
fio the Closing, the I suer will have duly authorized and approved
the Preliminary O:ffie'ial Statement.. and 'the Official Statement,
and the distribution thereof, and the execution and delivery of,
and, the performance by the Issuer of the obligations on its part
contained in, the Notes and this Note Purchase Agreement.
3.9 The Issuer is not, with respect to the
transactions eontemplated`herein, in a material breach of or
default under the Constitution of the State or any applicable law
or administrative regulation of the State or- the United States or
any applicable judgment or decr-ee or any loan agreement, note,
resolution, agreement or other instrument to which the Issuer is
a party or to which it ;is otherwise subject or to which any of
its property i,s otherwise subject because such property is
property of the Issuer; The execution ;and delivery of`the Notes
and~this Note Purchase, Agreement; and compliance with the
. provisions of each, will ,not conflict with or constitute a breach
of or a default under any law, admini trat~e regulation,
judgment, decree; loan agreement, note, resolution, agreement or
other instrument.. to which the Issuer is a party br to which;. it is
otherwise subject.. or to which any of. its property is otherwise
subject because such property is property of the Issuer. The
Issuer further.regresents that it is not now and never has been
in`~default in the. payment of the principal of, or premium or .
interest on, notes o;r,, other obligations that pit has issued,,.
assumed or gua-r.ar?teed;as to payment of principal, premium or
interest, and that there are .no stamp.., documentary; transfer or
similar taxes of the Ls`suer or the State that would b:e
applicable, to the original issuance or subsequent transfer of the
Notes.
3.10 All approvals, consents and orders required of
the Issuer or the Cµity o,f Petaluma.,. Ca`l'ifornia or by any
governmental authority, board, agency or comet siori having
jurisdiction which would constitute conditions precedent to the
performance by the Issuer of its obligations under this Note.
Purchase Agreement>, the Notes or the Resolution of Issuance, have
been obtained;.
3.:.,11 The Notes, the Act, the City Resolut~fon and the
Resolution of Issuance conform to the descriptions thereof
contained in the,O•ffe~ial Statement. The Notes, when 'i'ssued,
authenticated. and del~~ered in accordance with the Resolution of
Issuance and sold to the Purchaser.as provided herein,: will be
validly issued and outstanding: obligations 'of the; issuer
entitled to the benefits. of the Resolution .of issuance..
3.12 The terms and provisions of this Note Purchase
Agreement, the Pr-elminary Official Statement and the. Official
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$tatement comply in a l respects with the requirements of'the
Resolution of Issuance.
3.13 There is :no action, suit, proceeding, inquiry or
invest gation, at law or inequity, before or by any.cour-t:,
public board or `body;. pending o,r; to the Issuer's best knowledge,
threatened against: the Issuer,, except as disclosed in the
Official Statement, (i) a~ffeeting 'the existence of° the Issuer or
its. governing body or the titles of its officers to their- respec-
t'~e offices, or (.ii) seeking to proh°bt, restrain or .enjoin 'the
sale, 'issu'ance qr deliver-y oaf the ;Notes. or the revenues or assets
of the .Issuer p,ledge'd or t:o be pledged to pay the principal qf,
the redemption premium, if 'any,'., 'arid interest. on the Notes, or the
pledge tYiereof, or (iii) in any way contesting or a~ffeeting the
validity or erif.orceab'lty of; the Notes, th-is-Note. Purchase
Agreement or the -Renolut:ion of Issuance:;, or ~ (ivj iri any way
cont`e ting the completeness or accuracy of the Preliminary
Offical Statement.. or the "Offcial•Statement, or (vj in any way'
contesting the powers of the Tssuer or .any authority for the
issuance of the Notes or the execution and delivery of this Note
Purchase Agreement, or ('viJ in any way contesting the t'ax exempt
status of the Notes; nor; to the knowledge of the Issuer, is
there any ,basis ther-efor..
3,;14; Any certificate signed by an authorized officer
of'the Issuer and del,vered to the.; Purchaser or Bank of, America, '
National Trust and .Savings Association; as regstra-r, paying
agent: and 'trustee (-the "Trustee!',} at or-. prior to the, Closing
shat-1 be deemed a representation and warranty `by the Issuer to
the Purchaser or Trustee of°th'e statements made therein in
connection with this Note Purchase Agreement.
3.I5 The Issuer has, and at the'Clgsing will have,,
full legal right, .power and .authority to pledge and assign all of
its might,, tittle and .interest in th_e tax finer-ement revenues under
the `Resolut''on~ of Issuance unto Trustee' and, unto Trustee'?s
successors and assigns forever.
3.1.6 The Issuer will cooperate with the 'Purchaser in
t°aking all actions necessary 'for the qualification of the Notes
for offer and•, sale (and the continuation, of the ,effect°weness, . of
such; qualification so long as r-equred for the distribution of
the Notes,) and thee.. de~termnat~on o:f eligibility f.or .investme.nt in
the;. Notes under the haws of such jurisdiction as the Purchaser'
may request; pr.ovded;,, however,; that the hssuer~w,ll not be
sego red in connection. with any such qualification in ariy°
jurisdiction to f-le a 'genes:al cons'erit- to service of process or
qualify as a for-ei'gn corporatgri;.
3.1'7 All app:r.ovals, consents and orders,o;f any
g,ouernmental authority:; board,;. agency or eommiss'ion having
j`urisd'ict'i'on which;. would constitute a condition precedent to the
070KL,.PC3-4 "-g-
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performance :by the Tssuer of its obligations hereunder and under
the Resolution of Issuance-and the Notes have been obtained..
'3.18' The Resolution o,f, Issuance creates a' valid
pledge o~f all of the proceeds ~of the Note's' and any other amounts
held in any fund's or accounts established pursuant to the
Resolution of'Issuance. The Resolution o;f I suance creates a
first lien upon, secur-ty interest, in 'Trustee of all of the
proceeds of the Notes' and any other amounts held in any fund or
account established pursuant to the Resolution of Issuance.
3.. T9 .Any certificate s-gnefl by an authorized officer
of the Issuer and delivered to the Pureh'aser in connection with
the transactions contemplated by the Official Statement and this
Note Purchase Ag~reement~shall be deemed=~a representation and
warranty by -the Issuer to the Purchaser as to the statements made
therein.
3...2.0 Th'e "Base Year" ('as de-fined'. in the Act). for the
Petaluma Community Deve°lopment Proj~eet Area is 1987-88.
3..21 The loan arrangement e~idericed by the Resolution
of Issuance}, mandating the I suer to transfer-funds as a loan to
the Revolving'FUnd (as defined therein) to be used to p'aydebt
.
.service on the Notes when needed, all ;as more fully set forth
~'~therein, is a valid,. legal and binding obligation of the Issuer,
enforceable; in accordance with its terms by, among others;, the
Trustee and 'the Note owners as intended third-party beneficiaries
thereunder.
3.:2'2 The~Agreements.enter.ed into heretofore by the
.Issuer with.the City of Petaluma, California, the Petaluma
Community Development Commission, the .Sonoma County Library, the
County of: Sonoma and' certain school districts (collectively, the
"Pass-through Agreement'!') has been duly executed and delivered by
the Issuer and all parties thereto and~consttutes the valid,
legal and'bindng obligation of the I suer and the other parties
thereto in accordance with its terms, subject only to bankruptcy,
insolvency, reorganzat'on,'morator.ium and other similar laws'
~af.fecting;the rights; of creditors generally and the exercise of
j"udical discretion in accordance with general principles of
equity.
4. :Amendment' of O~ffeal Statement Blue Skv
4ualificat'ion. 'The Issuer covenants~wth the Purchaser that if,
between the~date of this Note Purchase A.greemenf and the date
ninety (9:0) days ,following the Closing 'Date,, the Issuer has
actual knowledge .of; any event affecfing the .`Is`suer or of any
transaction contemplated by°the City Resolution, the Resolution
of Issuance or the Official Statement that could cause the
Official Statement~`to contain an 'untrue statement of a material
fact or to omit to state:a material fact that should have been
07OKL.PC3-4 -7-
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included therein for the:pur--poses for which the Offcia ,
Statement was. to 'be used or` that ,is necessary in order, t:o make
' thus"tatements made therein, in light' of the; circumstances under
which they were made, note. mslead.rng, the Issuer' shall so ;no't.ify
the Purchaser. I'f in th'e rea onable opin-ion o'f. the hssu'er or th'e
sole judgment of the Purchaser such event requires an~'ainendment
or supplement to the.Of,fcal;:Statement>, the. Issuer wl-1 amend. or
supplement the Offie:al Statement in a form.and in a manner
acceptable to the.'Purc~ias°er. The expenses incurred in connection
with the preparation,~~prntng and delivery of any such amendment
or supplement w_i.Tl be borne by the `Is uer within said, 90-day
period. The Eurchaser also covenants'to the I suer to inform the
Issuer ~if it obta°ns .any nformat=ion. described in this Section 4.
- .The Issuer. covenants with the _Purcheaser that the ;Issuer wi13
.furnish such. information, execute such instruments 'and take "such
other action =n cooperation with the Purchaser as, the ;Purchaser
may reasonably request to qualify the Notes for offer and sa e
..under the lilue sky requirements and other securities l=aws, and
regulations of such states and other jurisfl~ictons of the United.
States as the Pur-chaser may designate; provided, however., that
the 'I suer shall :not- 'be, required to register as a ,dealer or
broker in any such state or jurisdict°on., or to execute a gene al
consent to service°of-prgcess or- qualify to do business in
connection with any such quahfica~tori of the Notes for' sale. in
any jurisdiction.
5, Ter-mnati~on of thePurchaser's Obligation to Purchase
the Notes. The Purchaser may terminate its obligations under
this Note- Purch'a'se Agreement by written notice to the Issuer-• ,if,
at any time subsequenfi to the date ;hereof, but on or prior to the
Closing Date:.
5.1 Legislation shall have been,enacted'or any
action shall;have been to-ken by the $eeurites, and:Exehange
Commission that, inn the op nion of counsel to-the Purchaser,
would. have the effect of re
- quiz ng the offer or sale of the
Notes to be registered, under the Seeurtes.Aet,of 1933, as
amended ('the !'Securit°es Act").,, or (ii) r-equirng the offer. or
sale of any other n=security," as• 'defined in, the, Securities Act.,,
i sued in connection. with or as p.art.of the issuance of the Notes
to";be.so regster.ed,, or (iij requiring the Resolution of
Ls'suan`ee to be qualified .as an indenture under the Trust
Indenture Act of 193':9, gas amendeed.,.
~5.2. In the judgment 'of the Purchaser- ~,t_,
impractical or inadvisable for--'the Purchaser to market or se~11 or
enforce agreements` to-sell. the Notes because O additional:
material restrict~onsnot now nnforce shall have been imposed
upon:. trading in securtfe geri'erally by any governmental.
authority. or by any national securities exchange, or r-estrctions
uponsueh trading now i~n force shall have: been materially
07OKL.-PC3-4, -8-
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increased, or (ii) the New'York S-took':Exchange or other national
securities exchange, or any governmental authority shall have
imposed, as to the Notes or similar obligations, any material
restrictions not now in force,, with respect to the extension of
credit by or the charge to the net capital requirements of
underwriters, or (iii) trading in securities generally shall have
..been suspended on the New'.York Stock Exchange,, or a general
banking moratorium shall have been established by federal, state
or New York`authorites_,~or {iv) the state steall have taken any
action, whether administrative, legislative, judicial or
otherwise, that materially and adversely affects the Purchaser's
ability to market or, sell the Notes, or (v) a war involving the
United States or some other national: calamity shall have occurred
or any conflict involving the armed forces of the United States
shall have escalated to, such a magnitude as to materially affect
the Purchaser's ability to market the Notes, or (vi) any event
shall have occurred or- shall exist that, in the judgment of the
Purchaser, makes or has made untrue or incorrect in any material
respec any-statement or information containe'd' in the Official
Statement, or any material statement or information is not-or was "
not reflected in the Official Statement but should be or should
have been reflected therein in order to make the statements.or
information contained therein not misleading in any material
respect, or (vii) in the judgment of the Purchaser, there shall
. have occurred a material adverse change in the economic condition
of the Issuer generally or in the affairs of the Issuer
generally, or (viii) there shallhave occurred any change that in
the judgment of the 'Purchaser makes unreasonable or unreliable
any of the assumptions upon which payment of debt service on the
Notes is predicated..
5.3 There sha`11 have occurred an event described in
Section 4 hereof that, in the opinion~of the Purchaser, requires
or required an ,amendment or supplement to the Official Statement
or that, in the judgment of the Purchaser,. adversely affects the
marketability of the Notes.
5.4 Any litigation shall be instituted, pending or
_ threatened O seeking to restrain or.enjoin the issuance, sale
or delivery of the Notes or the payment, collection or
application of the groceed`s tfiereof or (ii) that, in any way,
questions, contests or affects any authority for or the validity
of the City Resolution, the Resolution of Issuance., the Notes or
any provisions of this Note Purchase Agreement, or the existence
or powers of the Issuer or the City.
5.5 The issuance and sale of the Notes to the
Purchaser shall be subject to any transfer or other documentary
stamp taxes' of the: State or any political subdivision thereof.
6~. - Cond`itfons to _the Purchaser's Obligation to Purchase
the Notes. The obligation of the Purchaser to purchase and pay
070KL.PC3-4 -9-
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for the Notes. is subject. to they -accuracy of the.. representations
and Warr-.ante_s of the Issuer conta-fined in ths~Note Purchase
Agreement-as of the date hereof and as of the ,Closing Da e,_to
the aecuracy'of .statements to be made o"n beh°alf of the Issuer
hereunder- or pursuant hereto, to the performance by the ;Issuer.
of its obligations hereunder :and to each of the following
additional conditions:
6.'1 At th`e time of the Closing, the Resolution of
Issuance, the City 'Resolution: and the Official Statement,and all
official action .of the Issuer and the. City relating thereto shall
be in full force and effect and shall not have been amended,
modified or supplemented., except as may have been .agreed to in
writing by the 'Purchaser.
6.2 At the time of the, Closing; the~Purchaser shat
receive the final approving opinion of Sabo & Deitsch, A
Professional `Corporation„ Wood'Iand, Hills, Cal~forrra (`".Note.
Counsel"), in form and' substance accep:tab'le, to the Purchaser, or
a.let_ter from Note Counsel stating that the Purcha's'er may rely on
such opinion dated the Clo ~ng Date and addressed. to the.
Purchaser, and a supplementaa opinion of Note Counsel addr-essed
to the Purchaser-, to the effect that:
(i) The 'City Resolution is ,in full force, and
effect-, has ;not been modif'eds, amended or repe'a~led,, and `was duly
adopted at adul,y called meeting of the City Counci'1 of the City
o,f Petaluma,. California, ,at which .a quorum was present and: acting
throughout.
(ii) The Issuer has full power. and authority to
adopt"the Resolution of Issu_ance,; to execute., d,elver~and:perform
this Note Eur.chase Ag-reem_ent and the Of`fic'ial $ atement,, to
issue, sell and deliver the. Note°s, and to carry out its
obligations under this N;ote~, Purchase Agr-Bement, the Resolut"on of
Issuance. and the Of-ficia'h Statement-.
(iii.) Theis Note Purchase Agreement. `and the Notes
have :been duly auth~orized',,;.executed and delivered'and" constitute
valid,,. legal `and binding; obligations of the Issuer, enforceable
against .the Issuer in accordance with their respective terms,
except as enforceability thereof; may b'e, limited by applicable
bankruptcy, insolvency, reorganization, moratorium or:other`'laras
affecting the enforcement of cr,.edtors' r_..ghts gener-ally,
(iv) The Resolution of Issuance h'as been duly
adogt'ed at a. duly called and held meeting of the governing body
of the Issuer at; which a quorum was present. ,and acfng througYiout
and has not:: been amended,, modified or"repealed and.. ,is in fyl
force:. and :effect as of the date hereof.
07OKL.PC3-4 -10-
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(v) Th:e Notes are not subject to~the regis-
tration requcements of the Secur-.hies Act. and the Resolution
of Issuance is exempt from qu~alifcation pursuant to the Trust
Indenture Act of 1939, as amended.
(vi) The Base Year (as defined under the Act)
for the Project Area (as defined in the: Resolution of Issuance)
is 1987-88.
(vii) The Pass-through Agreement is in full
force and effect, has not been modif;ied.or amended and is.
enforceable in accordance with its terms, subject. to bankruptcy,
insolvency, moratorium,, reorganization,~and~other similar laws
affecting the rights of creditors generally and the exercise of
judicial discretion in ;accordance with general principles of
equity.
. (viii) Such other matters as the Purchaser may
reasonably request-.
6.3 At the time of the Closing, the Purchaser shall
receive the opinion of counsel. to the Issuer, dated the Closing
Date and addressed to the. Purchaser, to the effect that:
(i) The fissuer is a redevelopment agency of
the State, duly organized and validly existing, with €.u11 power
and authority to adopt the Resolut"ion of Issuance; to execute,
deliver and perform under this Note Purchase Agreement and the
Official Statement., to~,ssue-, sell and deliver the Notes, and to
carry out the other transactions contemplated by this Note
Purchase Agreement, the City Resolution, the Resolution of.
Issuance and the Official ,Statement. The Resolution of Issuance,
the Official Statement, :this Note Purchase Agreement,-the Notes
and the Pass-through Agreement have been duly authorized,
executed and delivered and constitute valid, legal and binding
obligations of the Issuer enforceable against the Issuer in
accordance with the"r respective terms, except as enforceability
thereof may be limited by, applicable bankruptcy, insolvency,
.reorganization, moratorium or other laws :or equitable principles
affecting the enforcement of creditors°' rights generally.
(ii) The ,Issuer has duly authorized,' executed
and deliver-ed the Official Statement and has duly authorized the
distribution of the Of-fical Statement by the Purchaser.
('iii..). The execution and delivery of the Notes and
this, Note Purchase Agreement, the adoption of the Resolution of
Issuance by the Issuer, and the Issuer's compliance with the.
provisions of each of the foregoing shall not conflict with or
constitute a violation on the part of the Issuer of the
Constitution or any other laws of the. State,. including the Act,
and shall not conflict with or result. in a violation or breach
070KL.PC3-4 -11-
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of, or constitute a default under, any agreement or instrument to
which 'the Iss:uer.is a party or by which it is bound or to which
it is ,subject .
(iv) Except as described in the Official
Statement,. 'no litigation 'or proceeding of any -nature is now
pending or, to the best ;knowledge ,o f.~such.counsel; threatened
(a) t'o restrain or, enjoi°n, the °issuance or del very of any Notes,.
the application of the :;proceeds thereof or the payment„ collec-
~t~ion orapplication ~of rev
( enues or other funds, ~pl.edged under the
Resolution of I,ssua~rrce, b) in any way contesting the validity
of o
r affecting ('1) the Notes, the Resolution of Issuance; the
City'Resolut-ion,. this Note Purchase Agreemen"t or the Official
Statement',; or (2) any authorization for or validity of the
appl°icaton :o,f the proceed. s of the: Notes' or- the, payment.;
collection and appl`cat,on~of,revenues.or other funds; or the
pledge thereof, ,pursuant to the 'Resol'ution of Issuance; or (c) in
any °way contesti°rig the existence or~ powers of the .Issuer- in
connection wi"th any action, contemplated by this Notre P.urehase
Agreement; or the right of the Issuer to take the action
contemplated by this Nota`Purchase Agreement.
(v) Thee.inf'ormaton: concerning the hssuer
contai'ned;in the Official $tatement is correct and does not
.contain, any 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, the light of the circumstances.
-under-which they were made, not misleading.
(vi) Such othe;rmatters as the: Purchaser may
reasonably request.
6.4 At the time of~the Closing, the Purchaser sYal
rece~.e the: opinion of local counsel to Trustee,; dated the _
Closing Date ;an'd addressed to tYi'e Purchaser and'Note Counsel, to
the ~e~ffect that°:
O The Trustee is a national banking
associat°on., duly org_an~fzed and validly .existing. under the laws
of the United States, legally doing business in a_nd duly
alified
qu to exercise trust powers in the State, eligible under
the Resolution of Issuance to act as Trustee thereunder,. and
having full corporate right,, .power and authority'to accept. the
trusts contemplated by and to perform~all.dutes.and obligations
on its part to be performed and to. take all act-ions .r-.e'quired' or
permitted on its part,to beta-ken under and. pursuant to `the
Resolution of ;hssuance,and this Note Purchase Agreement,
(ii) The Trustee, has taken all corporate: action
necessary to assume the duties and obligations of~Trustee under
the,~Resaluton of Tssuance and the terms.:,, conditions and.
provisions of such documents do not contravene any pro~~son of -
07OKL.PC3-4 -~12-
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• ~ ~ ^~r 'rat' :fit ,
applicable law-or regulation or any order,, decree, writ or '
injunction, or Trustee's A~rtcl;es of Association or Bylaws, and do
not require eons`erit under {except to the extent such consent has
been obtained), or result in a breach of or .default under, any
credit agreement., resolution, ind'enture,.note, contract,
agreement; or other instrument to which the. 'Trustee is a party or
is otherwise subject or bound.
(iii) Other than routine filings required to~be
made with governmenta=l agencies ri order to preserve the
Trustee's authority to perform a trust business, all approvals,
consents and orders of any governmerit~al banking authority or
banking agency having jurisdiction over the Trustee that 'would
constitute a condtign precedent to the performance by the
Trustee of its duties and obl ,gat:ons as the: Trustee under the
Resolution of Issuance have been obtained and are in full force
and effect.
(iv) I_No litigation is pending or, to the best of
such local counsel'' knowledge., threatened against the Trustee in
any way contesting ,or affecting the existence or powers
(including trust powers) of the-Trustee or the Trustee's. ability
as a matter of legal right to fulfill :its duties and obligations
under the Resolution of Issuance.
6.5 At th°e time of the Closing, the Purchaser shall
receive a certi€eate dafed the.Clbsing:Date and signed by an
authorized officer' of--the 'Trustee in, substantially the form
attached hereto as Exhibit B and by this reference incorporated
herein. '
6.6 At the time of the Clos°r?g, the Purchaser sha!11
- receive a certificate dated the Closi~rig Date and signed by~an
appropriate official of the Issuer in substantially the form;
attached hereto as Exhibit C and. by ths~reference incorporated
` herein.
6.7 At the,tme of the' Closing, the Purchaser shall..
relieve the opinion of Rosen, Wachtell &_Glbert, A Professional
Corporation, Los. Angeles, California, counsel to the Purchaser,
as it shall reasonably request.. In rendering such opinion„ such
counsel may rely upon "the opinions .of Note Counsel and counsel to
the Issuer--.
6.;8 At the time of the Closing,, the Purchaser shall
receive a certificate dated thereof and executed by an authorized
official of the County of Sonoma to the effect that the Base Year
(as defined in the Act'). applcabae to the Project Area (as
defined yin thee. Resolution of fis'suance) is 198'7-88.
6.9 ~At the time of the Closing, the Issuer shall
have furnished such additional legal. opinions, certificates,
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instruments and other documents as Note, Counsel or counsel to
the Purchaser shall .have reasonably requested to enable such
counsel 'to render their respective op'°nions.,or to evidence
compliance with alI applicable, legal requirements, the_ truth and
accuracy, as of the date .hereof and; as of th'e date o=f the
Closing:; of the 'repr-e~sentations and `war:-rantie`s contained herein
and of: the statements and .information contained in the Official
- _ . .
Statement,, a'nd 'the due perf,orinance or sats~facti~on on; or prior to
the Closing .Date of :all agreements then to be p'erfarmed and all
conditions then to be satisfied..
-Each of the opinions, letters; certf:cates;,
instruments and other documents mentioned above: or elsewhere in
this N,ote~Purchase Agreement shall, be deemed to be -in compliance
with the pr-ovsons hereof i=f,,, but only if, they, are in form
substance sats:fact;ory to"the Purchaser, and the Purchaser shall
have_the right to waive any condition set forth in this Section
6.
7. Co"sts of Issuance. The Issuer shall. cause to be paid
out o'€ Note proceeds or otherwise in funds immediately available
on the Closing Date the costs of assu'ng the Notes as"i provided in
the Resolution of Issuance.
If' any of the condit;ons;. to the obeli"gat'ons o-f the: Purchaser
contained in thus Section''? or elsewhere~n this Note Purchase
_
. Agreement shall-not ;have `been sat_sfed~when and as required
herein, a`1T obl"gatons of the Purchaser he eunder may' lye
terminated by the Purchaser on',: or any time p"rior to, the Closing
Date by written.notice to the Issuer.
Whether or ,not th'e Purchaser accepts delivery o;f and pays.
for the Notes as set forth herein; the :Purchaser- shall be un`d'er „
no obligation to pay any of, and the Issuer shall pay,: :or cause to
be paid each; of (,but. only out of the proceeds. bf, the Notes or
money received from. the Issuer') the expenses incident to the
performance o,f the I`ssuer's obligations hereunder, nc=ludirrg; 'but
not limited, to the costs of printing,,.: engraving an`d~ delivering
the Notes: to the Purchaser; the cost of preparation; printing
(::and/'or word processing and reproduct'ion)'; distribution ,and
delivery of the Preliminary Of:fic~al Statement,; the Of"fcial
Statement,, `and all other agreements and documents contemplated
hereby and d'ra~fts of any thereof: in such reasonable quantities "as,
.are requested by the Purchaser°; the fees and. d'°sbursements of
the'Tru_stee and~tscounse3,, Note; Counsel, accountants, financial
advsers~and any other experts or consultants. retained in
connection with the Notes; any fees charged by `the rating agency -
for rating the Notes; and, any other expenses incident to the
perforin'ance of the Issuer's oba.gatons °hereunder;," unless,
pecifically enumerated in the immediately following.paragraph.of
this ,Section 7.
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Whether or not the Notes':. are delivered to the Purchaser as
set forth herein, the Issuer shall be under no obligation to pay,
and. the Purchaser shal pay, the cost of preparation., printing
(and/or word processing and reproduct%on),, distribution and
delivery of any agreement among underwriters, the blue sky and
legal investment memoranda and this Note Purchase Agreement;
expenses to qualify `the Notes for sale :under any b ue sky laws;
and all other expenses incurred by the. Purchaser in connection
with .its public offering and distribution of the: Notes not.
specifically enumerated in the preceding paragraph of this
Sect-ion 7, including the fees and disbursements of its counsel.
• 8. Notices. Any .notice or other communication to be given
to the Issuer under Phis Note Purchase Agreement maybe given by
del-verng the same in writing to 11~Englsh Street, Petaluma.,,
California 94952, Attention: David Spilman. Any notice or other
communication to be given to the Purchaser under this Note
Purchase Agreement may b'e given by delivering the same. in writing
to 18.88 Century Park East, Suite 2100, Los. Angeles, California
90067, Attention: Municipal Finance Department. •
9. No Third-Party Benefits. This Note Purchase Agreement
is made solely for the~b.enefit of the Issuer and the Purchaser
(including their successors or assigns) and no other person shall
acquire or have any right hereunder or by virtue hereof.
. .4;. 10. Governing Law., This Note Purchase Agreement hall be
governed. by and' construed in accordance with the internal laws'
of; the State.
N• 11. Counterparts. This Note Purchase Agreement may be
executed in several `counterparts, each of which shall be an
original, but all of which shall constitute but one and the .same
instrument. '
12. Survival of ReQresentations and War--rarities. The
respective agreements, covenants, representations, warranties
-and other statements set forth in, or made pursuant to, this
" Note Purchase Agreement shall remain in full force and effect,
regardless of any investigation made by or on behalf of the.
Purchaser, .or of any statement; a!s to ,the results thereof, and
shall. suwive the delivery of and payment for the Notes.
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13. Effect;~e~ Upon Acceptanc'e~. This Note Purchase
Agreement shall_become effective upon the execution of the
acceptance hereof. by the 3ssuer.
Very truly yours,
Purchaser: MUNI'CI'CORP OF CALIFORNIA
By:
'Title:•
Accepted ,bn , 198'8
ISSUER; ~ PETALUNlA COMMUNITY
DEVELOPMENT COMMISSION
By:
Tthe°
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EXHIBIT A
Ma unity Principal Amount Rate
$ ~
07OKL.PC3-4 -17-
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. a
EXHIBIT B
Fo:rm of the Trustee's Clo"s'ng Certificate
[Closing Date.]
The undersigned, an authorized officer of Ba"nk of America,
National 'T-r-ust and ~S'awirigs As'sociat°ion (the "Tru'stee"j under
the `Resolution of I~ssuartce ad-opted 198'8 (the
"Resole"t`on,of Issuance"), does 'hereby certify as follows:
(,1;) The. Trustee is a national banking association
with trust: powers, duly organized; validly existing and, in good
standing, under the laws, of the United States of America, and has
the corporate power.to to+ke all ,action required. or perm'tted..of
it °under the "Resolution of Lssu~ance.
(2`) The undersigned is an. authorized officer of the
Trustee..
(S) Thee.. duties and obligations of the Trustee under
the Reso ution.gf Issuance have been-duly accepted by the
Trustee:.
(:4) the Trustee ha_s a.ll. necessary trust. powers
required under the Resolution of Issuance, and such Resolution of
Issuance has "been duly accepted 'by the 'Trustee.:
(`5:) To the bestknowled:ge of the undersigned, the
acceptance by the:. Trustee of the~dutes' and ob~ligatans of th°e
Trustee under- the Resolution of Issuance, and compliance with. the
provisions thereof':, wl`1 not eonf,T;ct with, or constitute; a breach
of or default under any law, administrative regulation, consent
decree or any agreement or other instrument to wh"ch.the Trustee
is ubject.
;Bank of America, National. Trust
and Savings Association,,
as Trustee
By:
Its•
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EXHT'BIT C
Form of the Issuer'`s Closing Certificate
[ClosingDate]
The undersigned [:Name of Position] of the Petaluma Community
Development Commission (the °Issuer"'), does hereby certify as
follows:
(1) The Issuer is a redevelopment agency and of the
State of California,, duly organized and•valdly existing under
the laws of the Sta a of California; and has full legal right, .
power and authority to adopt the resolution authorizing the
issuance of the Notes (the "Resoluton~o_f Issuance") and to
execute and deliver the-.Note Purchase Agreement by and between
the Issuer and Munic-Corp of Calf'orn~ia (the` "the Purchaser")
(.the "Note' Purchase:Agreementn); and to authorize and issue the
Notes and to carry out the transactions contemplated by. the
Resolution of Issuance, the City Resolution, the Official
Statement and the Note Purchase Agreement... The Resolution. of.
.Issuance, the Note Purchase Agreement and the Notes have been
duly author:z'ed~; executed and. delivered ;by the Issuer and
constitute valid, legal and binding obligations of the Issuer,.
enforceable against the Issuer in aecord`ance with their
.respective terms, except as enforceability thereof may be limited
by;,~applcable bankruptcy, insolvency., reorganization; moratorium
or~other simile-r laws af;feetng the enforcement of creditors!
rights generally; 'and the execution and'de very of said
ag~reemerits do not and will not constitute a de-fault under any
agreement;. indenture, mortgag,e,' lease, note or other ob igaton
or: instrument. to which the Issuer is a;party or by which it is
bound. No approva`1 or other- action by any governmental authority
or agency is required. in connection therewith. Unless otherwise
indicated,. capta,l.iz.ed terms used herein have the respective
meanings given to such terms in the. Note Purchase-Agreement.
(2) The Note Pur-chase Agreement and the Resolution of
Issuance, and all off;cial act--ion of the Issuer relating thereto,
:are in full :force and effect and have not been amended., modified
or supplemented except as has been agreed to in writing•by the
'Purchaser.
(3') Except as di closed in the Official Statement, no
litigation pr oth_e.r proceeding is pending".or, fo the
undersigned's best knowledge, threatened in any court or other
tribunal. of competent jurisdiction, state or federal, in anyway
(a) seeking to restrain or enjoin. the issuance,. sale or delivery
of the Notes, (b} questioning or affect°ng the validity of the
Note Purchase Agreement, the City Resolution, the Resolution of
Issuance, the Notes, the pledge to the Noteholders of any money.
070KL.PC3-4 -19- _
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or other security provided under the~Reso~lution of Issuance or
any oth°er transa_ction referred to .in the Official Statement, ('c')
questioning o~r affecting' the validity or a_ny of the proceedings
f'or 'the authorization, sale,, execution, issuance or' delivery o°f
the .Notes,;. ('d') question-ing; or a'ffectirig the organization or
existence of th_e Issuer or the title to off;ce of the officers
- thereof, or (e) questioning or affecting the .,power-.and authority
of the Ts""suer to :issue the Notes or ~to execufe~ and deliver the
Note.Purchase Agreement.; nor,; to the•best knowledge and'~belef of
the undersigned.; is there any basis therefor.
(4) The Pr.elmnary O~ff.ici:al Statement' (other than..
any financial o"r s":tatisti~cal;data, relating to a party other than
the Issuer .and any description of any document t`o which the
Issuer is '.not a, :party) does not contain any untrue statement' of a
material -fact or omit to ;state, 'any, ma;teral_ fact that should 'be
included there`n~for the 'purpose for 'which the Official $tatement
is to be used,,: or that is necessa_ry.in order to make the
statements contained therein, in the, light of`the circumstances
under which they were made:, riot; misleading.
(5) The Zssuer ha_s compl,ed< with all the agreements
and•. satisfied, al the conditions on its ;part to be, performed or
cats+fied at or prior to the Closing Date:, and.. theerepresen-
- Cations and warranties of 'the Issuer contained. in the :Note
Purchase Agr-cement are true, comp etc and correct. as of this
dace. •
-(6:) There has been no ,material adverse:change in the
ofnthelIssuerton, bus-iness, propertes.or resul~ts•of operations
- since the dates .as of~ wh`ch information with
respect. thereto 'was given to the Purchaser. The sfatements
coma°ined in the Offeia~l Statement that purport to describe the
Issue"r and 'the Project are; true:. and correct in all :material -
resp;ects; and. do not omt~to state any ,mater-ial fact that should,
be~ .included' therein fore the purpose for which.. the Qf.f~ical.
Statement ~•s t9 be used' o,r that is necessary in order to make the
statements therein, in the light of the circumstances under which
such statements were-made;,;;"not misleading in any material _
respect.
(7) The Base Year- (.as defined in the -Act). applicable
to the Project Area. (as defined in the Resolution of Issuance) is
19'87-88.
(8) The tax revenue projec€ons set forth in the
Offcia`1 Statement are accurate and complete in al`1 material
respects.
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(9) All infor-oration given by the Issuer to the
- Purchaser in connection with the -issuance of the Notes has been
and remains true,- accurate and correct in all material respects.
By:
Title:
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