HomeMy WebLinkAbout1984-07-17; City Council; 7820 Exhibit 08; OFFICIAL REQUEST TO STATE OF CALIFORNIA FOR MORTGAGE REVENUE BOND ALLOCATION Exhibit 08l-b-0 /DM
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CITY OF CARLSBAD HOME MORTGAGE
REVENUE BONDS (AMBAC INSURED), 1985 SERIES A
PURCHASE CONTRACT
, 1985
City of Carlsbad
Carlsbad, California
Ladies/Gentlemen:
The undersigned (the "Purchaser"), acting not as
fiduciaries or agents for you but on behalf of themselves,
offer to enter into this Purchase Contract with you (the
"City") which, upon acceptance, will be binding upon the City
and upon the Purchaser. This offer is made subject to the
City's acceptance on or before 11:59 P.M., California time,
on the date hereof, and if not so accepted, will be subject
to withdrawal by the Purchaser upon written notice delivered
to the City at any time prior to the acceptance hereof by the
City.
1. Purchase, Sale and Delivery of the Bonds.
(a) Subject to the terms and conditions and in reliance upon
the representations, warranties and agreements herein set forth, the Purchaser hereby agrees to purchase from the City,
and the City hereby agrees to sell to the Purchaser, all (but
not less than all) of the above-captioned bonds which are
more fully described in the Official Statement hereinafter
mentioned (the "Bonds"). The purchase price for the Bonds
shall be $ , plus accrued interest, calculated on a
360-day year basis, from , 1985 to the Closing Date.
(hereinafter defined).
The Bonds shall be substantially in the form
described in, shall be issued and secured under the
provisions of, and shall be payable and subject to redemption
as provided in, an Indenture, dated as of June 1, 1985 (the
"Indenture"), between the City and [TRUSTEE], as trustee (the
"Trustee"). The Bonds are authorized to be issued pursuant
to the provisions of Chapters 1-5 of Part 5 of
*
Division 31 of the Health and Safety Code of the State of
California (the "Act") and a resolution of the City Council
of the City adopted on , 1985 (the "Resolu-$ion"). The Bonds will be limited obligations of the City payable
solely from Revenues (as that term is defined in the
Indenture) and unexpended proceeds of the sale of the Bonds
pledged therefor pursuant to the Indenture. Proceeds of the
- sale of the Bonds will be used by the City in accordance with
the Indenture and the Act to acquire Home Mortgages (as that
term is defined in the Indenture) made to finance the
purchase of homes located in the City constructed by certain
developers pursuant to Developer Agreements, each dated as of
June 1, 1985 (the "Developer Agreements"), among the City,
the Trustee and [DEVELOPERS] (the "Developers"), which Home
Mortgages shall be originated and serviced pursuant to a
Mortgage Sale and Service Agreement, dated as of June 1, 1985
(the "Agreement"), among the City, the Trustee, and, in its
capacity as lender for the origination and servicing of Home
Mortgages (the "Lender"), all as part of a home financing
program (the "Program") to increase the housing supply in the
City of Carlsbad.
(b) Attached hereto as Exhibit A is a form of the
official statement of the City relating to the Bonds. The
form of official statement, together with such changes as may
be made thereto, with the approval of the Purchaser and the
City, from time to time prior to the Closing Date (including
any supplements thereto), is herein called the "Official
Statement.'' The City hereby authorizes the Purchaser to use
and distribute the Official Statement, the Indenture, the Agreement, the Developer Agreements and this Purchase
Contract and all information contained in each thereof, and
all other documents, certificates and statements furnished by
the City to the Purchaser in connection with the transactions
contemplated by this Purchase Contract, in connection with
the offer and sale of the Bonds.
(c) At 8:OO A.M., California time, on 1
1985, or at such earlier or later time or date as shall be
agreed upon by the Purchaser and the City (such time and date
being herein referred to as the "Closing Date"), the City
will deliver to the Purchaser, at the office of the Purchaser
at Los Angeles, California, the Bonds in definitive form (all
Bonds being printed or lithographed on steel engraved borders
and bearing CUSIP numbers), duly executed by the City and
authenticated by the Trustee; provided, however, that the
Bonds may be issued in the form of temporary bonds upon
approval by the Purchaser provided that the Bonds in
definitive form are delivered as soon as practicable after
the Closing Date; and the Purchaser will accept such delivery and pay the purchase price of the Bonds as set forth in
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paragraph (a) of this Section at the offices of
payable in Clearing House funds (such delivery and
payment being herein referred to as the "Closing"). The
Bonds shall be made available to the Purchaser not later than
two business days before the Closing Date for the purposes of
inspection and packaging. The Bonds shall be in registered
- form, in such denominations and registered in such names as
the Purchaser shall request by written notice not later than
five business days prior to the Closing Date.
, by certified or official bank check
2. Good Faith Deposit. Delivered to you herewith
is a cashier's check payable to the order of the City in an
amount equal to .2% of the principal amount of the Bonds.
You agree to hold this check uncashed until the Closing Date
as security for the performance by the Purchaser of its
obligations under this Purchase Contract; in the event of its
performance of such obligations, such check shall be returned
to the Purchaser on the Closing Date. In the event you do
not accept this offer, such check shall be returned
immediately to the Purchaser. Once such acceptance has
occurred, then, in the event of a failure to deliver the
Bonds on the Closing Date or to satisfy the conditions to the
Purchaser's obligations (unless waived by the Purchaser) or
if the Purchaser's obligations shall have been terminated for
any reason permitted hereby, the check shall be immediately
returned to the Purchaser. In the event that the Purchaser
fails, for a reason not permitted hereby, to accept and pay
for the Bonds on the Closing Date as herein provided, the
check shall be retained by you as and for liquidated damages
for such faiure and for any defaults hereunder on the part of
the Purchaser. The Purchaser and the City understand that, in such event, the City's actual damages may be greater or
may be less than such sum. Accordingly, the Purchaser hereby
waives any right to claim that the City's actual damages are
less than such sum and the City's acceptance of this offer
shall constitute a waiver of any right the Issuer may have to
additional damages from the Purchaser.
3. Representations, Warranties and Agreements of
the City. The City represents, warrants to and agrees with the Purchasers that:
(a) The City is a municipal corporation, organized and existing under the Constitution and laws of the
State of California and has, and at the Closing Date
will have, full legal right, power and authority (i) to
enter into this Purchase Contract, the Indenture, the
Agreement and the Developer Agreements, (ii) to adopt
the Resolution, (iii) to issue, sell and deliver the
Bonds to the Purchasers pursuant to the Indenture as
provided herein, and (iv) to carry out, give effect to
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and consummate the transactions contemplated by this
Purchase Contract, the Resolution, the Indenture, the
Agreement, the Developer Agreements and the Official a
Statement;
(b) The City has complied, and will at the Closing
Date be in compliance, in all respects with the
Resolution, the Indenture, the Agreement, the Developer
Agreements, the Act, the Program, and the Rules and
Regulations of the Program adopted by the City on , 1985 (the "Rules and Regulations").
(c) The City has duly and validly adopted the
Resolution and the Rules and Regulations, has duly
authorized and approved the execution and delivery of
the Bonds, the Indenture, this Purchase Contract, the
Agreement, the Developer Agreements and the Official
Statement and has duly authorized and approved the
performance by the City of its obligations contained in,
and the taking of any and all action as may be necessary to carry out, give effect to and consummate the
transactions contemplated by each of said documents, and
at the Closing Date the Bonds, the Indenture, the
Agreement, the Developer Agreements and this Purchase
Contract will constitute the valid, legal and binding
obligations of the City (assuming due authorization,
execution and delivery by the other parties thereto,
where necessary) in accordance with their respective
terms, except as such enforceability may be limited by
bankruptcy, insolvency or similar laws relating to or
affecting creditors' rights generally and by equitable
principles if equitable remedies are sought, and the
Resolution will be in full force and effect at such date;
(d) The City is not in breach of or in default under any applicable law or administrative rule or
regulation of the State of California, the United
States, or of any department, division, agency or
instrumentality of either thereof, or any applicable
court or administrative decree or order or any loan
agreement, note, resolution, indenture, contract,
agreement or other instrument to which the City is a
party or is otherwise subject or bound which in any
material way, directly or indirectly, affects the
issuance of the Bonds or the validity thereof, the
Program, the Indenture, the Agreement, the Developer
Agreements and this Purchase Contract; the adoption of
the Resolution and the Rules and Regulations and the execution and delivery of the Bonds, the Indenture, this
Purchase Contract, the Agreement, the Developer
Agreements and compliance with the provisions of each
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,
thereof, will not conflict with or constitute a breach
of or default under any applicable law or administrative
rule or regulation of the State of California, the
United States, or of any department, division, -agency or
instrumentality of either thereof, or any applicable
court or administrative decree or order or any loan
agreement, note, resolution, indenture, contract,
agreement or other instrument to which the City is a
party or is otherwise subject or bound;
(e) All approvals, consents, authorizations,
elections and orders of or filings or registrations with
any governmental authority, board, agency or commission
having jurisdiction which would constitute a condition
precedent to, or the absence of which would materially
adversely affect, the performance by the City of its
obligations hereunder and under the Indenture, the
Bonds, the Agreement and the Developer Agreements have
been obtained and are in full force and effect except
for such approvals, consents, authorizations, elections,
orders, filings or registration as may be required under
"blue sky" laws of the several states in connection with
the public offering of the Bonds by the Purchaser;
(f) The Bonds, when delivered in accordance with
the Indenture and paid for by the Purchaser at the
Closing Date as provided herein, will be validly issued
and outstanding limited obligations of the City entitled
to all the benefits and security of the Indenture;
(9) The Official Statement, insofar as it relates
to the City, is, and (as supplemented with the written
approval of the Purchaser and the City, if the Official
Statement shall have been supplemented) will be, as of
the Closing Date, true, correct and complete in all
material respects and does not, and will not as of the
Closing Date, contain any untrue statement of a material
fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(h) For a period of 90 days from the date hereof
or until such time (if earlier) as the Purchaser shall
no longer hold any of the Bonds for sale, if any event
shall occur as a result of which it is necessary, in the
opinion of the City or the Purchaser, to supplement the
Official Statement in order to make the statements
therein, in liqht of the circumstances existing at such
time, not misleading, the City shall forthwith notify
the Purchaser of any such event of which it has
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knowledge and shall amend or supplement the Official
Statement so that, in the opinion of the Purchaser and
the City, the statements therein as so amended or
supplemented will not be misleading in the ligh% of the
circumstances existing at such time;
(i) The Indenture creates a valid pledge of the
Revenues, as defined in the Indenture, and the proceeds
of the Bonds, including the investments thereof, and a
lien upon, security interest in and assignment to the Trustee of the Revenues, the proceeds of the Bonds,
moneys in all funds and accounts established pursuant to
the Indenture, including the investments thereof, except
to the extent of the Nonmortgage Investment Excess (as
that term is defined in the Indenture), and all right,
title and interest of the City in the Home Mortgages,
the Agreement and the Developer Agreements subject in all cases to the provisions of the Indenture permitting
the application thereof for the purposes and on the
terms and conditions set forth therein;
(j) No action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any
court, regulatory agency, public board or body, is
pending or, to the best knowledge of the City,
threatened in any way affecting the existence of the
City or the titles of its officers to their respective
offices, or seeking to restrain or to enjoin the
issuance, sale or delivery of the Bonds, the application
of the proceeds thereof in accordance with the Indenture, or the collection or application of Revenues
pledged or to be pledged to pay the principal of and
interest on the Bonds, or the pledge thereof or of the
proceeds of the Bonds, or in any way contesting or affecting the validity or enforceability of the Bonds,
the Indenture, the Agreement, the Developer Agreements,
the Program, the Resolution, the Rules and Regulations,
this Purchase Contract, or in any way contesting the completeness or accuracy of the Official Statement or
the powers of the City or its authority with respect to
the Bonds, the Indenture, the Agreement, the Developer
Agreements, the Program, the Resolution, the Rules and
Regulations, or this Purchase Contract, and the City has
not received notice of any such action, suit,
proceeding, inquiry or investigation which would
adversely affect the exemption of interest paid on the
Bonds from federal income taxation or State of
California personal income taxation;
(k) The City will furnish such information, execute such instruments and take such other action in
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cooperation with the Purchaser as the Purchaser may
reasonably request to qualify the Bonds for offer and
sale under the "blue sky'' or other securities Laws and
regulations of such states and other jurisdictions of
the United States as the Purchaser may designate,
provided that in connection therewith the City shall not
be required to consent to service of process or register
as a dealer or broker in any jurisdiction or to comply
with any other requirements reasonably deemed by it to
be unduly burdensome, and provided further that the City
will not incur any liability or cost by reason thereof;
(1) The issuance and sale of the Bonds is not
subject to any transfer or other documentary stamp taxes
of the State of California or any political subdivision
thereof;
(m) The City will not issue any bonds, notes or
other obligations for borrowed money in connection with
the Homes described in the Official Statement as long as
moneys are available in the Program Fund (as defined in
the Indenture) in relation thereto;
(n) Any certificate signed by any authorized official or individual of the City, shall be deemed a
representation and warranty by the City to the Purchaser as to the statements made therein; and
(0) The City will cause the Trustee to apply the
proceeds of the Bonds in accordance with the Indenture.
4. Conditions to the Obligations of the
Purchaser. The obligations of the Purchaser to accept
delivery of and pay for the Bonds on the Closing Date shall
be subject, at the option of the Purchaser, to the accuracy
in all material respects of the representations and warranties on the part of the City contained herein as of the
date hereof and as of the Closing Date, to the accuracy in
all material respects of the statements of the officers and
other officials of the City, the Developers and the Lender
made in any certificates or other documents furnished
pursuant to the provisions hereof, to the performance by the.
City of its obligations to be performed hereunder at or prior
to the Closing Date, to the receipt by the City (or the
provision by the City on behalf of Developers) prior to the
Closing of the Developer Commitment Fees (as defined in the
Indenture) and to the following additional conditions:
(a1 At the Closing Date, the Indenture, the
Agreement, the Developer Agreements, the special hazard
insurance policy, and the private mortgage guaranty
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master insurance policies described in the Official
Statement shall have been duly authorized, executed and
delivered by the respective parties thereto (wh=ich shall
be the same as those identified in the Official
Statement), and in substantially the forms heretofore
submitted to the Purchaser, with only such changes as
shall have been agreed to by the Purchaser and the City,
and together with the Resolution and the Rules and
Regulations shall be in full force and effect, and shall
not have been amended, modified or supplemented, except
as may have been agreed to by the Purchaser and the
City, and there shall have been taken in connection
therewith, with the issuance of the Bonds and with the
transactions contemplated thereby and by this Purchase
Contract, all such actions as, in the opinion of
Stradling, Yocca, Carlson & Rauth, a Professional
Corporation, Bond Counsel, or Orrick, Herrington &
Sutcliffe, counsel for the Purchaser, shall be necessary
and appropriate;
(b) At the Closing Date, the Official Statement
shall not have been amended, modified or supplemented,
except as may have been agreed to in writing by the Purchaser and the City;
(c) Between the date hereof and the Closing Date, the market price or marketability, at the initial
offering prices set forth in the Official Statement, of
the Bonds shall not have been materially adversely
affected, in the judgment of the Purchaser (evidenced by
a written notice to the City terminating the obligation
of the Purchaser to accept delivery of and pay for the
Bonds), by reason of any of the following:
(1) legislation enacted by or introduced in the Congress or recommended for passage by the
President or Department of the Treasury of the
United States, or a decision rendered by a court
established under Article I11 of the Constitution
of the United States or by the Tax Court of the
United States, or an order, ruling, regulation or
official statement (final, temporary or proposed)
issued or made by or on behalf of the Treasury
Department of the United States or the Internal
Revenue Service, with the purpose or effect,
directly or indirectly, of imposing federal income
taxation upon such Revenues as would be received by
the City or the Trustee and pledged under the Bonds, or upon such interest as would be received
by the holders of the Bonds or by or on behalf of
the Securities and Exchange Commission, or any
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other governmental agency having jurisdiction of
the subject matter, to the effect that obligations
of the general character of the Bonds, or,the Bonds
are not exempt from registration under, or other
requirements of, the Securities Act of 1933, as
amended, or that the Indenture is not exempt from
qualification under, or other requirements of, the
Trust Indenture Act of 1939, as amended, or that
the issuance, offering or sale of obligations of
the general character of the Bonds, or of the Bonds
as contemplated hereby or by the Official
Statement, otherwise is or would be in violation of
the federal securities laws as amended and then in
effect;
(2) the declaration of war or engagement in
major hostilities by the United States or the
occurrence of any other national emergency or
calamity relating to the effective operation of the
government of or the financial community in the
United States;
(3) the declaration of a general banking
moratorium by federal, New York or California
authorities, or the general suspension of trading
on any national securities exchange;
(4) the imposition by the New York Stock
Exchange or other national securities exchange, or
any governmental authority, of any material restrictions not now in force with respect to the
Bonds or obligations of the general character of
the Bonds or securities generally, or the material
increase of any such restrictions now in force,
including those relating to the extension of credit
by, or a change in the net capital requirements of,
underwriters ;
(5) the withdrawal or downgrading of any
rating of the Bonds;
(6) any amendment to the federal or
California Constitution or action by any federal or
California court, legislative body, regulatory body
or other authority materially adversely affecting
the tax status of the City, its property, income,
securities (or interest thereon), the validity or
enforceability of this Purchase Contract, the
Indenture, the Aureement, the Developer Agreements
or the Home Mortgages (other than with respect to
prepayment penalties, if any, provided for therein
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to the extent enforceability of such prepayment
penalties may be limited by California law) or the
ability of participating lenders to originate or
sell and the City to purchase Home Mortgages as
contemplated by the Indenture, the Agreement, the
Developer Agreements and the Official Statement; or
- (7) any event occurring, or information
becoming known which, in the judgment of the
Purchasers, makes untrue in any material respect any statement or information contained in the
Official Statement, or has the effect that the
Official Statement contains any untrue statement of
material fact or omits to state a 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;
(d) A policy of municipal bond insurance (the
"Bond Insurance Policy"), in form and substance
reasonably satisfactory to the Purchaser and the City
insuring the payment, when due, of principal of and
interest on the Bonds shall have been issued by AMBAC
Indemnity Corporation.
(e) At or prior to the Closing Date, the Purchaser
shall have received one counterpart original of the
following documents (plus two counterpart originals as soon as practicable thereafter), in each case
satisfactory in form and substance to the Purchaser:
(1) The Official Statement, executed on
behalf of the City by the Mayor;
(2) The Resolution and the Rules and
Regulations, each certified by the City Clerk of
the City as a true, correct and complete copy of
the ones duly adopted or authorized by the City and
that it has not been amended, modified or rescinded (except as may have been agreed to by the
Purchaser) and is in full force and effect as of
the Closing Date;
(3) The Indenture, the Agreement and the
Developer Agreements, each duly executed and
delivered by the respective parties thereto
(including, in the case of the Developer
Agreements, each of the Developers identified in
the Official Statement);
in
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(4) An approving opinion, dated the Closing
Date and addressed to the City, of Stradling,
Yocca, Carlson & Rauth, a Professional Corporation,
Bond Counsel, in substantially the form attached
hereto as Exhibit B, and a letter of such-counsel,
dated the Closing Date and addressed to the
Purchaser, to the effect that such opinion
addressed to the City may be relied upon by the
Purchaser to the same extent as if such opinion
were addressed to them;
-
(5) An opinion, dated the Closing Date and
addressed to the Purchaser, of Stradling, Yocca,
Carlson & Rauth, a Professional Corporation, Bond
Counsel, to the effect that (i) the statements
contained in the Official Statement under the
captions "Introduction, 'I "The Bonds, It "The
Program, If "Definitions of Certain Terms, I' "The
Indenture, 'I "Legality for Investment" and "Tax
Exemption" are fair and accurate summaries of the
matters set forth therein; and (ii) based upon the
information made available to them in the course of
their participation in the preparation of the Official Statement as Bond Counsel and without
having undertaken to determine independently or assuming any responsibility for the accuracy,
completeness or fairness of the statements contained in the Official Statement, such counsel
do not believe that the Official Statement as of
its date and as of the Closing Date contained any
untrue statement of a material fact or omitted to
state a material fact required to be stated
therein, in the light of the circumstances under
which they were made, not misleading (except that no opinion or belief need be expressed as to any
financial or statistical data contained in the
Official Statement or the statements contained in the Official Statement under the caption "Bond
Insurance" or in any appendices to the Official
Statement);
(6) An opinion, dated the Closing Date and
addressed to the Purchaser, of Orrick, Herrington &
Sutcliffe, counsel for the Purchaser, to the effect
that (i) the Bonds are exempt from the registration
requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from
qualification under the Trust Indenture Act of
1939, as amended; (ii) based upon the information
made available to them in the course of their
participation in the preparation of the Official
11 &A. 040181-0039-161-5150f 06/03/85
Statement as counsel fer the Purchaser and without
having undertaken to determine independently or
assuming any responsibility for the accuracy,
completeness or fairness of the statements-
Contained in the Official Statement, such counsel
de not believe that the Official Statement as of
its date and as of the Closing Date contained any
- untrue statement of a material fact or omitted to
state a 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 (except that no opinion or
belief need be expressed as to any financial and
statistical data contained in the Official
Statement or the statements contained in the
Official Statement under the caption "Bond
Insurance" or in any appendices to the Official
Statement); and (iii) with respect to such other
matters as the Purchaser may require (in rendering
such opinions, such counsel will not pass upon, and
accordingly such opinion will be subject to, the
tax-exempt status of interest on the Bonds);
(7) A certificate, dated the Closing Date and
signed by an authorized officer or individual of
the City, to the effect that (i) the representations and warranties of the City
contained herein are true and correct in all
material respects on and as of the Closing Date
with the same effect as if made on the Closing
Date; (ii) to his best knowledge no event has
occurred since the date of the Official Statement
which should be disclosed in the Official Statement
for the purposes for which it is to be used or
which it is necessary to disclose therein in order
to make the statements and information therein not
misleading in any material respect; and (iii) the City has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied under this Purchase
Contract, the Resolution, the Indenture, the
Agreement, the Developer Agreements or otherwise at
or prior to the Closing;
. (8) An opinion, dated the Closing Date and
- addressed to the Purchaser, of , City
Attorney, to the effect that (i) the City is a municipal corporation and [chartered/general law]
city duly organized and validly existing under the
Constitution and laws of the State of California,
with full right, power and authority to conduct its
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business as described in the Official Statement;
(ii) the City has duly and validly adopted the
Resolution authorizing the execution and delivery
of and has duly executed and delivered thq Purchase
Contract, the Indenture, the Agreement, the
Developer Agreements, the Official Statement and the Bonds; (iii) no approval, authorization,
already obtained is legally required for the
issuance and sale of the Bonds, or the execution and delivery of the Purchase Contract, the
Indenture, the Agreement, the Developer Agreements,
the Official Statement and the Bonds; (iv) the City
has duly taken all necessary action prerequisite to
(a) the authorization, issuance, sale and delivery
of the Bonds upon the terms set forth in the
Purchase Contract and the Official Statement;
(b) the approval, execution, delivery, receipt and
due performance of the Purchase Contract, the
Indenture, the Agreement, the Developer Agreements,
the Official Statement and the Bonds, and (c) the
carrying out, giving effect to and consummation of the transactions contemplated by the Purchase
Contract, the Indenture, the Agreement, the
Developer Agreements, the Official Statement and
the Bonds; (v) the Resolution and all other
proceedings pertinent to the validity and
enforceability of the Bonds have been duly and
validly adopted or undertaken in compliance with
all applicable procedural requirements of the City,
and in compliance with the Constitution and laws of
the State of California; (vi) the City has taken all action necessary or required by the Act to
enable the City to exercise its powers under the
Act with respect to the Program and the issuance,
sale and delivery of the Bonds; (vii) there are no
legal or governmental proceedings pending or, to
the best knowledge of such counsel after due
injury, threatened, or any basis therefor, wherein
an unfavorable decision, ruling or finding would
have a material and adverse affect on the validity
of the Bonds, the Purchase Contract, the Indenture,.
the Agreement, the Developer Agreements or the Official Statement; (viii) the execution and
delivery of the Official Statement by the City, and
the distribution thereof, have been duly authorized
by the City; the statements and information
relating to the City contained in the Official
Statement are true and correct in all material
respects, and do not contain any untrue statements
- consent or order of any public board or body not
. of a material fact, or omit to state any material
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facts required to be stated therein or necessary to
make the statements therein, in light of the
circumstances under which they were made, not
misleading; and (ix) the statements and information
in the Official Statement under the headings "No
Litigation" and in Appendix C entitled "The City"
are true and correct in all material respects, and
fact or omit to state any material facts required
to be stated therein or necessary to make the
statements therein, in light of the circumstances
under which they were made, not misleading;
- do not contain any untrue statements of a material
(9) A certificate of a duly authorized
officer of the Trustee, dated the Closing Date, as
to the acceptance of the trusts under the Indenture
by the Trustee and the due authentication and
delivery of the Bonds by the Trustee thereunder;
(10) An opinion, dated the Closing Date and
addressed to the City, to Bond Counsel and to the
Purchaser, of counsel for the Trustee, to the
effect that (i) the Trustee is a
the laws of the , legally doing
business in and duly qualified to exercise trust powers in the State of California, eligible under
the Indenture to act as Trustee thereunder, and has
full corporate right, power and authority to accept
the trusts contemplated by and to perform all
duties and obligations on its part to be performed
and to take all actions required or permitted on
its part to be taken under and pursuant to the
Indenture, the Agreement, Developer Agreements and
the Investment Agreement (as hereinafter defined);
(ii) the Trustee has duly authorized the acceptance
of the trusts contemplated by the Indenture, has
duly accepted the duties and obligations of Trustee
thereunder, and has duly authorized, executed and
delivered the Indenture, the Agreement, the Developer Agreements and the Investment Agreement
and the duties and obligations of the Trustee under
the Indenture, the Agreement, the Developer
Agreements and the Investment Agreement constitute
the-legal, valid and binding obligations of the
Trustee enforceable against it in accordance with
their respective terms except as the same may be
limited by applicable insolvency, reorganization,
liquidation, moratorium, readjustment of debt or
other similar laws affecting the enforcement of creditors' rights generally; (iii) all approvals,
, duly organized and validly existing under
-In r-2
040181-0039-161-5150f 06/03/85
consents, authorizations, elections and orders of
or filings or registrations with any governmental
authority, agency, board or commission haying
jurisdiction in the matter which would constitute a
condition precedent to, or the absence of which
would materially adversely affect, the performance
by the Trustee of its duties and obligations under
the Indenture, the Agreement, the Developer
Agreements and the Investment Agreement have been
obtained and are in full force and effect; (iv) the
acceptance of the duties and obligations of the
Trustee under the Indenture, the execution and
delivery of the Indenture, the Agreement, the
Developer Agreements and the Investment Agreement
and the performance of the obligations on the part
of the Trustee contemplated in the Indenture, the
Agreement, the Developer Agreements and the
Investment Agreement and the compliance by the
Trustee with the terms, conditions and provisions
of such documents have been duly authorized by all
necessary corporate action on the part of the
Trustee; (v) the acceptance of the duties and
obligations of the Trustee under the Indenture, the
Agreement, the Developer Agreements and the
Investment Agreement and the performance of the
obligations on the part of the Trustee contemplated
by the Indenture, the Agreement, the Developer Agreements and the Investment Agreement and the
compliance by the Trustee with the terms,
conditions and provisions of such documents do not
contravene any provision of applicable law or
regulation or any order, decree, writ or injunction
or the Trustee's Articles of Incorporation or
By-Laws, and do not require consent under (except
to the extent such consent has been obtained), or
result in a breach of or default under, any credit
agreement, resolution, indenture, note, contract, agreement or other instrument to which the Trustee
is a party or is otherwise subject or bound; and
(vi) there is no action, suit, proceeding, inquiry
or investigation, at law or in equity, before or by
any court, regulatory agency, public board or body,
pending or, to the best knowledge of such counsel,
threatened, in any way contesting or affecting the
creation, organization or existence of the Trustee
or the authority of the Trustee to accept or
perform the duties and obligations of the Trustee under the Indenture, the Agreement, the Developer
Aureements and the Investment Agreement;
ir
&d
040181-0039-161-5150f 06/03/85
(11) An opinion, dated the Closing Date and
addressed to the City, to Bond Counsel, to the
Trustee and to the Purchaser, of counsel for
[Mortgage Insurer] (the "Insurer"), to the'effect
that: (i) the Insurer is a private mortgage
guaranty insurance company, duly organized, validly
existing and holding a current certificate of
authority to transact insurance business under the laws of the state of its incorporation, is duly
qualified to do business under the laws of the state of its incorporation, is duly qualified to do
business in the State of California, is a
[Qualified Insurer] within the meaning of [Section __ 1 of the Agreement (except as to
acceptability to the City and AMBAC Indemnity
Corporation) and has the corporate power to issue,
and take all action required of it under, the
master private mortgage guaranty insurance policy and any commitment or certificate of insurance on
Home Mortgages issued pursuant thereto, including
all endorsements thereto (collectively, the
Insurance Policies"); (ii) the execution, issuance
and delivery of and performance under the Insurance
Policies by the Insurer do not require the consent
or approval of, the giving of notice to, the filing
or registration with, or the taking of any other
action in respect of, any federal, state or other
governmental authority which has not previously
been effected and which is not in full force and
effect as of the Closing Date; (iii) the execution,
issuance and delivery of and performance under the Insurance Policies have been duly authorized by all
necessary corporate action on the part of the Insurer, and to the best of the knowledge of such
counsel, will not conflict with or constitute on
the part of the Insurer a violation or breach of, or default under, the Charter or By-Laws of the
Insurer or any existing laws or regulations, court
or administrative decree or order or any agreement,
indenture, contract or other instrument to which
the Insurer is subject or party or by which it is
bound; (iv) the Insurance Policies comply, or upon issuance will comply, with the requirements set forth in the Agreement and constitute, or upon
issuance will constitute, the valid, legal and
binding obligations of the Insurer in accordance with their terms except as the enforceability
thereof may be limited by applicable bankruptcy,
rehabilitation, insolvency or other similar laws
affecting the enforcement of creditors' rights
generally and/or insurance claimants' rights
-
IT
1c *" 040181-0039-161-5150f 06/03/85
generally or by general equitable principles; (v) the information contained in the Official
Statement under the caption "Insurance, '' i-nsofar as
it relates to the Insurer and the Insurance
Policies, to the best of such counsel's knbwledge,
does not contain any untrue statement of a material
fact or omit to state a material fact required to
be stated therein or necessary to make the
statements made therein, in the light of the
circumstances under which they were made, not
misleading;
(12) Copies of the Insurance Policies issued
or to be issued by the Insurer pursuant hereto, each as contemplated by the Official Statement and
a special hazard insurance policy as contemplated
by the Official Statement;
(13) Receipts executed by the Trustee or other
evidence that the Trustee shall have received from
the Developers amounts as required by the Developer
Agreements and as contemplated by the Official
Statement;
(14) A non-arbitrage certificate of the City
in substance and form satisfactory to Stradling,
Yocca, Carlson & Rauth, a Professional Corporation,
Bond Counsel ;
(15) A letter from Laventhol & Horwath,
independent certified public accountants, dated the
Closing Date and addressed to the City and Bond
Counsel, to the effect that based on certain
assumptions specifically set forth in the letter,
the yield on the Home Mortgages will not exceed the
yield on the Bonds by more than is permitted by,
and in each case determined in accordance with,
Treasury Regulation Q 1.103-13 and 6a.103A-Z(i);
(16) A certificate of a duly authorized
officer of the Lender, dated the Closing Date, that
(i) the statements and information relating to the
Lender in Appendix B to the Official Statement
entitled "The Lender" are true and correct in all
material respects, and do not contain any untrue
statements of a material fact or omit to state any
material facts required to be stated therein or
necessary to make the statements therein, in light
of the circumstances under which they were made,
not misleading, and (ii) the representations and
77 &.
040181-0039-16i-5150f 06/03/85
warranties of the Lender in the Agreement are true
and correct as though made on the Closing Date.
(17) An opinion of counsel to the Le<#er, dated the Closing Date and addressed to the
Trustee, to the City, to Bond Counsel and to the
Purchaser to the effect that (i) the Lender is a
customarily provides servicing and origination of
home mortgages in the City of Carlsbad, is
authorized to do business in the State, and is
either a FNMA or FHLMC approved seller/servicer;
(ii) the Agreement has been duly authorized, executed, and delivered by the Lender and, when
executed and delivered by City, and Trustee, will
constitute legal, valid and binding obligations of
the Lender enforceable in accordance with its
terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization or other
similar laws or by equitable principles affecting
creditors' rights generally; (iii) all corporate
proceedings legally required to be taken by it in
connection with the authorization, execution and
performance of the Agreement and the consummation
of the transactions contemplated thereby and
related thereto, and all approvals, authorizations, consents, licenses or other orders of state or
federal regulatory agencies, public boards or
bodies, if any, as may be legally required to be
obtained by it with respect to all or any of such
matters, have been taken or obtained; (iv) the
Lender has full legal authority to engage in the
activities covered by the Agreement; (v) the
execution and delivery of the Agreement and
compliance with the terms, conditions and
provisions thereof will not conflict with or result in a breach of any of the terms, conditions or
provisions of the charter or by-laws of the Lender or, to such counsel's best knowledge after
reasonable inquiry and investigation, any agreement
or instrument to which it is a party or by which it is bound, or any law or regulations or any
administrative decree or order to which it is
subject, or constitute a default thereunder; (vi) to such counsel's best knowledge after
reasonable inquiry and investigation, no written information, exhibit or report furnished to City or
Trustee by the Lender in connection with the
negotiation or execution of the Agreement and the
consummation of the transactions contemplated
hereby and related hereto (including, without
- duly organized and existing corporation which
:E
040181-0039-161-5150f 06/03/85
limitation, any information furnished by it to the
City or its agents or representatives or the
Purchasers in connection with its application to
the City to originate and service Home Moctgages,
in the preparation of any official statement,
preliminary or final, any appendices thereto, any
application, any disclosure statement or any loan
omits to state a material fact necessary to make
the statements contained therein, in light of the
circumstances under which they were made, not
misleading and all such documents comply with
federal and state laws where applicable; (vii) to
such counsel's best knowledge after reasonable
inquiry and investigation, the Lender is not in
default with respect to any order or decree of any
court or any order, regulation or demand of any
federal, state, municipal or governmental agency,
which default might have consequences that would
materially and adversely affect the operation of it
or its properties or might have consequences that
would affect its performance under the Agreement;
(viii) to such counsel's best knowledge after
reasonable inquiry and investigation, the Lender is
not a party to or bound by any agreement or
instrument or subject to any charter or any other
corporate restriction or any judgment, order, writ,
injunction, decree, law or regulation which now or
in the future may materially and adversely affect the ability of it to perform its obligations under
the Agreement or which requires the consent of any
third person to the execution of the Agreement or
the consummation of the transactions contemplated
thereby; and (ix) to such counsel's best knowledge
after reasonable inquiry and investigation, no
litigation is pending or threatened against it
which would prohibit the Lender from entering into
the Agreement or consummating the transactions
contemplated thereby;
- file) contains any material misstatement of fact or
(18) A duly authorized and executed investment
agreement or agreements between the Trustee and
of all amounts held by the Trustee under the
Indenture, in such form and with a rate of return
on amounts so invested as are acceptable to the
City and the Purchaser (the "Investment Agreement");
(the "Borrower") under the Investment Agreement,
. addressed to the Trustee, to the City and to the
, providing for the investment
l(191 An opinion of counsel to the borrower
19
040181-0039-161-5150f 06/03/85
Purchasers, to the effect that the Borrower has
duly authorized, executed and delivered the
Investment Agreement and the Investment Agyeement
is, and the note(s) of the Borrowers to be,issued
pursuant thereto will be upon such issuance, the
valid, legal and binding obligations of the
Borrower enforceable in accordance with the terms
bankruptcy, insolvency, reorganization or similar
laws or by equitable principles affecting
creditors’ rights generally;]
- thereof, except as enforcement may be limited by
(20) If the performance by the Borrower of its
obligations under the Investment Agreement is
insured or guaranteed by another party, an opinion
of counsel to such other party, in form and
substance satisfactory to Bond Counsel and Counsel
to the Purchaser;
(21) A copy of the Bond Insurance Policy;
(22) An opinion of counsel to AMBAC Indemnity
Corporation, addressed to the City and the Purchaser, as to such matters as Bond Counsel or
the Purchaser may reasonably request;
(23) Certificates and opinions of the
Developers and their counsel in the forms of
Exhibits - and to the Developer Agreements;
(24) a letter, dated the Closing Date and
addressed to the Purchaser, from Empire Economics,
confirming that it is an independent firm
specializing in preparation of feasibility studies
with respect to real estate developments of the
types described in the Official Statement and other
related matters and stating that, on the basis of specified procedures, nothing has come to its
attention which would cause it to believe that any
amendment of or supplement to its report referred
to in the Official Statement (or any summary or
conclusions thereof appearing in the Official
Statement) is required in order for said report or
summary not to contain any untrue statement of a
material fact nor omit to state any material fact
necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
qn
040181-0039-161-5150f 06/03/85
a”
(25) Counterpart originals of a transcript of
all proceedings relating to the authorization,
issuance, sale and delivery of the Bonds;,
(26) Evidence of a rating of the Bonds from
Standard & Poor's Corporation of AAA; and
- (27) Such additional legal opinions,
certificates, instruments and other documents as
the Purchaser may reasonably request to evidence
the truth and accuracy, as of the date hereof and
as of the Closing Date, of the City's
representations and warranties contained herein and
of the statements and information contained in the
Official Statement and the due performance or
satisfaction by the City at or prior to the Closing
of all agreements then to be performed and all
conditions then to be satisfied by the City in
connection with the transactions contemplated
hereby and by the Indenture, the Agreement, the
Developer Agreements and the Official Statement.
If any of the conditions to the obligations of the
Purchaser contained in this Section or elsewhere in this
Purchase Contract shall not have been satisfied when and as
required herein, all obligations of the Purchaser hereunder
may be terminated by the Purchaser at, or at any time prior
to, the Closing Date by written notice to the City.
Notwithstanding any provision herein to the contrary, the
performance of any and all obligations of the City hereunder and the performance of any and all conditions contained
herein for the benefit of the Purchaser may be waived by the
Purchaser.
5. Expenses. (a) Whether or not the Purchaser
accepts delivery of and pay for the Bonds as set forth
herein, they shall be under no obligation to pay, and the
City shall pay or cause to be paid (out of the proceeds of
the Bonds or any other legally available funds of the City) any expenses incident to the performance of the City's
obligations hereunder, including but not limited to the cost
of printing, engraving and delivering the Bonds to the
Purchaser; the cost of preparation, printing (and/or word
processing and reproduction), distribution and delivery of
the Indenture, the Agreement, the Developer Agreement, the
Official Statement and all other agreements and documents
contemplated hereby and drafts of any thereof in reasonable
quantities as requested by the Purchaser; the initial premium
on the Bond Insurance Policy; the fees and disbursements of
the Trustee, Bond Counsel, attorneys, accountants, financial
advisers and any other experts or consultants retained in
9.7 16
040181-0039-161-5150f 06/03/85
connection with the Bonds; any fees charged by the rating
agencies for rating the Bonds; and any other expenses not
specifically enumerated in paragraph (b) of this Section
incurred in connection with the issuance of the Bond>.
(b) Whether or not the Bonds are delivered to the
Purchasers as set forth herein, the City shall be under no
the California Debt Advisory Commission, the cost of
preparation, printing (and/or word processing and
reproduction), distribution and delivery of the "blue sky"
and legal investment memoranda and this Purchase Contract;
expenses to qualify the Bonds for sale under any "blue sky"
laws; and all other expenses incurred by the Underwriter in
connection with their public offering and distribution of the
Bonds not specifically enumerated in paragraph (a) of this
Section, including all advertising and computer expenses, the
fees and disbursements of their counsel and expenses incurred
relative to a supplement to the Official Statement.
- obligation to pay, and the Purchaser shall pay, the fees of
6. Tax Matters. (a) The Purchaser represents that the Purchaser will not, pursuant to any arrangement,
formal or informal, sell Bonds to the Lender or any Developer
(or, in each case, any related person as defined in Section
103(b) of the Internal Revenue Code of 1954, as amended) in
an amount related to the amount of Home Mortgages to be
originated or sold by the Lender or to the number of
residences constructed or to be constructed by such Developer
under the Program.
(b) The Purchaser agrees to make a bona fide
public offering of all the Bonds at prices not in excess of
the initial public offering prices set forth on the cover
page of the Official Statement.
(c) The obligation of the City to sell the Bonds
on the Closing Date shall be subject, at the option of the
City, to the receipt by the City on or prior to the Closing
Date, of a certificate signed by the Purchaser, specifying
the initial offering price of the Bonds to the public
(excluding bond houses, brokers and other intermediaries).
7. Indemnification by the Purchaser. The Purchaser agrees to indemnify and hold harmless the City
against any and all losses, claims, damages and liabilities
arising out of any statement or information contained in the
Official Statement under the heading "Underwriting" that is
untrue in any material respect, or the omission therefrom of
any information which to the knowledge of the Purchaser
should be contained therein which is necessary to make the
statements therein, in the light of the circumstances under
3- -&
040181-0039-161-5150f 06/03/85
which they are made, not misleading in any material respect.
In case any claim shall be made or action brought against the
City, based upon the provisions of the Official Statement
referred to hereinabove in this Section 7, in respect to
- which indemnity may be brought against the Purchaser, the
City shall promptly notify the Purchaser in writing setting
forth the particularities of such claim or action and the
retaining of counsel and the payment of all expenses. The
City shall have the right to retain separate counsel, in any
such action and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense
of the party retaining such counsel unless the retaining of
such counsel has been specifically authorized by the
Purchaser.
- Purchaser shall assume the defense thereof including the
8. Finalization of Rating. The Purchaser shall
file with Standard & Poor's Corporation such documents as are
required by such rating agency in order to finalize the
initial rating on the Bonds. The Purchaser shall have no
responsibility to maintain such rating, to notify the City or
any person of any change (or proposed change) in or
withdrawal (or proposed withdrawal) of such rating or to
oppose any change in or withdrawal of such rating. The City
shall, upon the request of the Purchaser, provide to the Purchaser all documents necessary to finalize the initial
rating on the Bonds.
9. Notices. Any notice or other communication to
be given to the City under this Purchase Contract may be
given by delivering the same in writing to the City at , Carlsbad, California , Attention:
I( ); and any notice or other
communication to be given to the Purchaser under this
Purchase Contract may be given by delivering the same in
writing to Paine Webber Incorporated, 100 California Street,
San Francisco, California 94111, Attention: Stephen L. Hicks.
10. Parties in Interest. This Purchase Contract
is made solely for the benefit of the City and the Purchaser
(including successors or assigns of Purchaser) and no other
person shall acquire or have any right hereunder or by virtue
hereof.
11. Survival of Representations and Warranties.
The representations and warranties of the City set forth in
or made pursuant to this Purchase Contract shall not be
deemed to have been discharged, satisfied or otherwise rendered void by reason of the Closing or termination of this
Purchase Contract and regardless of any investigations or
statements as to the results thereof made by or on behalf of
q3 -u
040181-0039-161-5150f 06/03/85
the Purchaser and regardless of delivery of and payment for
the Bonds.
12. Governing Law. This Purchase Contract shall
-be construed in accordance with the laws of the Stat& of
California applicable to contracts made and performed therein
and the obligations, rights and remedies of the parties
- hereunder shall be determined in accordance with such laws.
13. Effective. This Purchase Contract shall
become effective and binding upon the respective parties
hereto upon the execution of the acceptance hereof by the City and shall be valid and enforceable as of the time of
such acceptance.
Very truly yours,
PAINE WEBBER INCORPORATED
BY
Accepted , 1985.
CITY OF CARLSBAD
BY
3n LIT
040181-0039-161-5150f 06/03/85
EXHIBIT A TO PURCHASE CONTRACT
- -
- [Here attach form of Official Statement as set forth-in
Section l(a) and (b) hereof.]
-
+ *
EXHIBIT B TO PURCHASE CONTRACT
- -
[Here attach copy of form of opinion of Bond Counsel_]
-