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HomeMy WebLinkAboutReso RDA 9-1997 RESOLUTION NO. 9-97 REDEVELOPMENT AGENCY, CITY OF SOUTH SAN FRANCISCO STATE OF CALIFORNIA A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $13,000,000 TAX ALLOCATION BONDS RELATING TO THE DOWNTOWN/CENTRAL REDEVELOPMENT PROJECT, APPROVING AND AUTHORIZING AND DIRECTING EXECUTION OF INDENTURE OF TRUST RELATING THERETO, AUTHORIZING SALE OF SUCH BONDS, APPROVING OFFICIAL STATEMENT AND PROVIDING OTHER MATTERS PROPERLY RELATING THERETO WHEREAS, the Agency is a public body, corporate and politic, duly established and authorized to transact business and exercise powers under and pursuant to the provisions of the Community Redevelopment Law of the State of California, constituting Part 1 of Division 24 of the Health and Safety Code of the State of California (the "Law"), including the power to issue bonds for any of its corporate purposes; and WHEREAS, a Redevelopment Plan for the Downtown/Central Redevelopment Project (the "Redevelopment Project"), in the City of South San Francisco (the "City"), has been adopted in compliance with all requirements of the Law; and WHEREAS, the Agency wishes at this time to issue its Downtown/Central Redevelopment Project 1997 Tax Allocation Bonds in the aggregate principal amount of not to exceed $13,000,000 (the "Bonds") pursuant to the Law for the purpose of providing funds to finance redevelopment activities in the Redevelopment Project; and WHEREAS, the City and the Agency have previously entered into a Loan and Repayment Agreement (Downtown/Central Redevelopment Project) dated April 26, 1989 (the "City Loan Agreement") pursuant to which the City has provided certain financial assistance to the Agency with respect to the Redevelopment Project and the Agency has agreed to repay such amounts from tax increment funds as such funds'become available; and WHEREAS, the Agency's obligations under the City Loan Agreement are subordinate to the Bonds; and WHEREAS, the Bonds are proposed to be issued pursuant to an Indenture of Trust (the "Indenture") dated as of June 1, 1997, by and between the Agency and First Trust of California, National Association, as trustee; and WHEREAS, the Agency proposes to sell the Bonds to the City of South San Francisco Capital Improvements Financing Authority (the "Authority") which will concurrently sell the Bonds to PaineWebber, Incorporated, as purchaser of the Bonds (the "Underwriter"), all on the terms and conditions herein set forth and as provided in the form of a Purchase Contract (the "Purchase Contract") on file with the Clerk of the Agency, and WHEREAS, the Underwriter has caused to be prepared an Official Statement describing the Bonds, the preliminary form of which is on file with the Clerk of the Agency (the "Official Statement") and the Members of the Agency, with the aid of their staff, has undertaken such review of the Official Statement as hereinafter described as is necessary to assure proper disclosure of all material facts relating to the Certificates that are within the personal knowledge of the Members and the staff; WHEREAS, the Agency wishes at this time to authorize the issuance of the Bonds and authorize and direct the sale thereof; NOW, THEREFORE, BE IT RESOLVED by the Redevelopment Agency of the City of South San Francisco as follows: Section 1. Issuance of Bonds: ApDroval of Indenture. The Agency hereby authorizes the issuance of the Bonds in the ..... aggregate principal amount of not to exceed $13,000,000. The Bonds shall be issued pursuant to the Indenture. The Agency hereby approves the Indenture in substantially the form on file with the Clerk of the Agency, together with any additions thereto or changes therein deemed necessary or advisable by the Executive Director of the Agency, whose execution thereof shall be conclusive evidence of such approval, including, without limitation, the addition to the Indenture of the final interest rates as contained in the Purchase Contract hereinafter approved. The Executive Director and Clerk of the Agency are hereby authorized and directed to execute, attest and affix the seal of the Agency to the final form of the Indenture for and on behalf of the Agency. Section 2. Sale of Bonds. The Agency hereby authorizes the sale of the Bonds to the Authority for concurrent resale by the Authority to the Underwriter pursuant to and in accordance with the Purchase Contract in substantially the form on file with the Clerk of the Agency together with any additions thereto or changes therein approved by the Executive Director, whose execution thereof shall be conclusive evidence of such approval. The Agency hereby delegates to the Executive Director the authority to accept an offer from the Underwriter to purchase the Bonds from the Authority and to execute the Purchase Contract for and in the name and on behalf of the Agency; provided, however, that the true interest cost payable on the Bonds shall not exceed seven percent (7%) per annum, and the purchase price paid by the Underwriter for the purchase of Bonds shall be not less than ninety-eight and one- half percent (98.5%) of the par amount thereof, excluding any original issue discount on the Bonds. Section 3. Official Statement. The Agency hereby approves and authorizes the Executive Director to deem final within the meaning of Rule 15c2-12 of the Securities Exchange Act of 1934 except for permitted omissions, a preliminary form of Official Statement describing the Bonds. Distribution of such preliminary Official Statement by the Underwriter to prospective purchasers of the Bonds is hereby approved. The Executive Director is hereby authorized to execute the final form of the Official Statement, including as it may be modified by such additions thereto and changes therein as the Executive Director shall deem necessary, desirable or appropriate, and the execution of the final Official Statement by the Executive Director shall be conclusive evidence of the approval of any such additions and changes. The final Official Statement shall be executed in the name and on behalf of the Agency by the Executive Director. Section 4. Official Actions. All actions heretofore taken by the officers and agents of the Agency with respect to the issuance of the Bonds are hereby approved, confirmed and ratified. The Chairman, the Executive Director, the Treasurer, the Clerk and any and all other officers of the Agency are hereby authorized and directed, for and in the name and on behalf of the Agency, to do any and all things and take any and all actions, including execution and delivery of any and all assignments, certificates, requisitions, agreements, notices, consents, instruments of conveyance, warrants and other documents, which they, or any of them, may deem necessary or advisable in order to consummate the transactions described herein. Section 5. Effective Date. This resolution shall take effect from and after the date of approval and adoption thereof. -3- I hereby certify that the foregoing Resolution was regularly introduced and adopted by the Redevelopment Agency of the City of South San Francisco at a regular meeting held on the 28th day of MaY , 1997 by the following vote: AYES: Boardmembers James k. Datzman, Eugene R. Mullin, Robert Yee and Chairman Joseph A. Fernekes NOES: None ABSTAIN: Boardmember John R. Penna ABSENT: None Agency Clerk ~ -4- EXHIBIT TO RESOLUTION NO. 9-97 O'M&M DRAFT OF 5/20/97 REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO DOWNTOWN/CENTRAL REDEVELOPMENT PROJECT 1997 TAX ALLOCATION BONDS BOND PURCHASE AGREEMENT ,1997 Capital Improvements Financing Authority c/o City of South San Francisco 315 Maple Avenue South San Francisco, California 94080 Ladies and Gentlemen: The undersigned, PaineWebber Incorporated ("Underwriter"), hereby offers to enter into this Bond Purchase Agreement (this "Authority Purchase Agreement") with the Capital Improvements Financing Authority, City of South San Francisco (the "Authority"), for the purchase by the Underwriter of the Redevelopment Agency of the City of South San Francisco Downtown/Central Redevelopment Project 1997 Tax Allocation Bonds (the "Bonds"). This offer is made subject to written acceptance by the Authority at or prior to 5:00 p.m., California time, on the date set forth above and, if not so accepted, will be subject to withdrawal by the Underwriter upon notice delivered to the Authority at any time prior to the acceptance hereof by the Authority. Upon the Authority's written acceptance of this offer, the Authority Purchase Agreement shall be in full force and effect in accordance with its terms, and shall be binding upon the Authority and the Underwriter. The Underwriter has been authorized to execute this Authority Purchase Agreement and to take any action hereunder by and on behalf of the Underwriter. All capitalized terms used herein not otherwise defined herein shall have the respective meanings ascribed thereto in the Trust Agreement hereinafter described. Section 1. Purchase and Sale. Upon the terms and conditions and in reliance on the representations, warranties and agreements set forth herein, the Underwriter, jointly and severally, hereby agree to purchase from the Authority, and the Authority hereby agrees to cause the Trustee (as hereinafter defined) to authenticate and deliver to the Underwriter, all (but not less than all) of the Bonds in an aggregate principal amount indicated on Schedule I hereto, consisting of serial and term bonds, all at the principal amounts indicated on Schedule I, at a purchase price of $ (the principal amount of such bonds less an underwriter's discount of $ and an SF1-267431 original issue discount of $ ) plus accrued interest to the Closing (as hereinafter defined). The date of payment for and delivery of the Bonds and the other actions contemplated hereby to take place at the time of such payment and delivery, shall hereinafter be called the "Closing". The Bonds are being issued (i) to finance the acquisition of certain land and improvements to the Downtown/Central Redevelopment Project of the Redevelopment Agency of the City of South San Francisco, California (the "Agency") (ii) to fund a reserve fund for the Bonds and (iii) to pay the costs of issuance of the Bonds (the "Project"). Section 2. The Bonds. The Bonds will be described in and will be executed, delivered and secured under and' pursuant to a Indenture of Trust dated as of June 1, 1997 (the "Indenture"), by and among the Agency and First Trust of California, National Association, as trustee (the "Trustee"). The execution and delivery of the Bonds, the Indenture and the Continuing Disclosure Certificate relating to the Bonds (the "Continuing Disclosure Certificate") have been authorized by resolution of the Agency (the "Agency Resolution"). The sale of the Bonds which have been issued by the Agency to the Underwriter has been authorized by resolution of the Authority (the "Authority Resolution"). The Bonds shall be payable and shall be subject to prepayment as provided in the Indenture. The Indenture, the Continuing Disclosure Certificate, the AgenCY Resolution, the Authority Resolution, the Purchase Agreement dated as of ,1997, between the Authority and the Agency (the "AgenCY Purchase Agreement"), and this Authority Purchase Agreement are collectively referred to herein as the "Legal Documents". Section 3. Official Statement and Other Documents. (a) The Authority has delivered, will deliver or will cause to be delivered to the Underwriter, without charge, copies of the Preliminary Official Statement dated , 1997 (including all documents incorporated by reference therein) and any amendment or supplement thereto (the "Preliminary Official Statement"), in such quantities as the Underwriter have requested or may hereafter reasonably request. (b) The Authority agrees to deliver or cause to be delivered to the Underwriter, within seven (7) business days after the date of this Authority Purchase Agreement, copies of the Official Statement dated , in final form (including all documents incorporated by reference therein) and any amendment or supplement thereto (as supplemented and amended from time to time, the "Final Official Statement"), in such quantities as the Underwriter may reasonably request in order to comply with the obligations of each of the Underwriter pursuant to the rules of the Municipal Securities Rulemaking Board and Rule 15c2-12(b)(4) under the Securities Exchange Act of 1934 '(the "Rule"). SFI-267431 2 (c) As soon as practicable following receipt thereof from the Authority, the Underwriter shall deliver the Final Official Statement, and any supplement or amendment thereto, to a nationally recognized municipal securities information repository (as such term is defined by the Rule). (d) Pursuant to the Rule, the Underwriter shall send no later than the next business day, by first class mail or other equally prompt means, to any potential customer, on request, a single copy of the Final Official Statement from the time the Final Official Statement becomes available until the earlier of: (i) 90 days from the end of the underwriting period, or (ii) the time when the Final Official Statement is available to any person from a nationally recognized municipal securities information repository, but in no case less than 25 days following the end of the underwriting period. (e) Prior to the earlier of (i) the end of the period during which the Underwriter are obligated to deliver the Final Official Statement in accordance with the Rule or (ii) twenty-five (25) days after the Closing, the Authority shall provide the Underwriter or cause the Underwriter to be provided with such information regarding the Agency, its current financial condition and ongoing operations as the Underwriter may reasonable request. (f) The Authority hereby authorizes the use by the Underwriter of the Legal Documents and the Official Statement, including any supplements or amendments thereto, and the information contained in each of such documents, and all other documents, certificates and statements furnished by the Agency, i the Authority and the Underwriter, in connection with the public offering and sale of the Bonds. The Authority consents to the use. by the Underwriter prior to the date hereof of the Preliminary Official Statement in connection with the public offering of the Bonds. Section 4. Closing. At 8:00 a.m., California time, on , 199_, or at such other time or on such earlier or later date as may be mutually agreed upon by the Agency, the Authority and the Underwriter (the "Closing Date"), the Authority will, subject to the terms and conditions hereof, deliver or cause to be delivered to the Underwriter the duly executed Bonds in book-entry form through the facilities of The Depository Trust Company CDTC") and the other documents hereinafter mentioned. The Underwriter will accept the delivery of the Bonds and pay the purchase price of the Bonds as set forth in Section 1 hereof by check payable in clearinghouse funds to the order of the Trustee. Delivery and payment as aforesaid shall be made at the offices of Jones Hall Hill & White, A Professional Law Corporation ("Bond Counsel") in San Francisco, California, or such other place as shall have been mutually agreed upon by the Agency, the Authority and the Underwriter. Section 5. Public Offering. It shall be a condition to the Authority's obligations to sell and deliver the Bonds to the Underwriter and to the Underwriter's obligations to purchase, to accept delivery of and to pay for the Bonds that the entire principal amount of the Bonds shall be executed by the Trustee, sold and delivered by the SF1-267431 3 Authority and purchased~ accepted and paid for by the Underwriter at the Closing. Subject to the terms and 'conditions hereof, the Underwriter agrees to make a bona fide public offering of all of the Bonds at prices not in excess of the initial public offering prices set forth on Schedule I hereto. The Underwriter reserves the right to change such initial offering prices as the Underwriter shall deem necessary in connection with the marketing of the Bonds and to offer and sell the Bonds to certain dealers (including dealers depositing such Certificates into investment trusts) and others at prices lower than the initial offering prices set forth on the inside of the cover page of the Official Statement. The Underwriter also reserves the right to (i) overallot or effect transactions which stabilize or maintain the market prices of the Bonds at levels above those which might otherwise prevail in the open market and (ii) discontinue such stabilizing, if commenced, at any time. Section 6. Representations. Warranties and Agreements of the Authority. The Authority hereby represents, warrants and agrees as follows: (a) Due Organization and Authority: Legal. Valid and Bindint, Oblieations. The Authority is and will be on the Closing Date a joint powers authority duly organized and existing pursuant to the Constitution and laws of the State of California, and has all necessary power and authority to enter into and perform its duties under the Legal Documents to which the Authority is a party, and, when executed and delivered by the respective parties thereto, such Legal Documents will constitute legal, valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, moratorium or other similar laws or equitable principles relating to 'or limiting creditors' right generally. (b) No Conflict. The execution and delivery of the Legal Documents to which the Authority is a party, and compliance with the provisions thereof, have been duly authorized by all necessary official action on the part of the Authority and will not conflict with or constitute a breach of or default under any law, administrative regulation, court decree, resolution, charter, bylaw or any agreement to which the Authority is subject or by which it is bound or by which its properties may be affected, a consequence of which could be to materially and adversely affect the ability of the Authority to perform its obligations under the Legal Documents to which it is a party. (c) No Litigation. To the best knowledge of the Authority, except as disclosed in the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, or public board or body is pending or threatened against the Authority, or seeking to restrain or to enjoin the execution, sale or delivery of the Bonds, the pledge of the Tax Revenues (as defined in the Indenture), the application of the proceeds thereof in accordance with the Indenture, or in any way contesting or affecting the validity or enforceability of the Bonds, the Legal Documents, any other applicable agreements, or any action of the Authority contemplated by any of said documents, or in any way SF1-267431 4 contesting the completeness or accuracy of the Official Statement or the powers of the Authority or its authority with respect to the Bonds, the Legal Documents, any other applicable agreements, or any action of the Authority contemplated by any of said documents, or which would adversely affect the exclusion of interest paid with respect to the Bonds from gross income for purposes of federal income taxation, or which if determined adversely to the Authority would have a material and adverse effect upon the Authority's ability to make the debt service payments on the Bonds. (d) Agreement to Notify Underwriter Regarding Official Statement. The Authority will ensure that the Underwriter is advised promptly of any proposal to amend or supplement the Official Statement and will not have any such amendment or supplement effected without the consent of the Underwriter, which consent shall not be unreasonably withheld. The Authority will ensure that the Underwriter is advised promptly of the institution of any proceedings known to it seeking to prohibit or otherwise affect the use of the Official Statement in connection with the offering, sale or distribution of the Bonds. (e) Agreement to Amend Official Statement. If at any time between the date of this Authority Purchase Agreement and up to twenty-five (25) days following the "end of the underwriting period" (as defined in Section 14 hereof) an event occurs, of which the Authority has knowledge, which might or would cause the information relating to the Agency, its functions, duties and responsibilities contained in the Official Statement, as then supplemented or amended, to contain an untrue statement of a material fact or to omit to state a material fact required to be stated therein or necessary to make the information therein, in the light of the circumstances under which it was presented, not misleading, the Authority will notify the Underwriter or cause the Underwriter to be notified, and if in the reasonable opinion of the Underwriter, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the Authority will cooperate with the Underwriter and cause the preparation of an amendment or supplement to the Official Statement to be made in a form and in a manner approved by the Underwriter, provided all expenses thereby incurred will be paid for by the Authority. (f) Amendments to Official Statement Correct and Complete. If the information relating to the Agency, its functions, duties and responsibilities contained in the Official Statement is amended or supplemented pursuant to the immediately preceding paragraph, at the time of each supplement or amendment thereto and (unless subsequently supplemented or amended pursuant to such paragraph) at all times subsequent thereto up to and including the date twenty-five (25) days after the end of the underwriting period, the portions of the Official Statement so supplemented or amended (including any financial and statistical date contained therein) will be true and correct in all material respects and, such information will not contain any untrue or misleading statement of a material fact or omit to state a material fact required to be stated therein or necessary to make such information SF1-267431 5 therein, in the light of the circumstances under which it was presented, not misleading. (g) Blue Sky Cooperation. The Authority will furnish or cause to be furnished such information, execute or cause to be executed such instruments and take or cause to be taken such other action in cooperation with the Underwriter as the Underwriter may reasonably request in order (1) 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 Underwriter may designate and (2) to determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions, and will use its best efforts to continue such qualification in effect so long as required for distribution of the Bonds; provided, however, that the Authority shall not be required to execute a special or general consent to service of process in any jurisdiction in which it is not now so subject or to qualify to do business in any jurisdiction where it is not now so qualified. (h) No Breach or Default. The Authority is not, and at the Closing Date will not be, in breach of or default under any law or administrative rule or regulation of the State of California, the United States of America, 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, bond, resolution, indenture, contract, agreement or other instrument to which the Authority is a party. or is otherwise subject or bound and which would materially impair the ability of the Authority to perform its obligations under the Legal Documents to which the Authority is a party. (i) Approvals and Authorization. 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 Authority of its obligations hereunder and under the Legal Documents to which the Authority is a party and any other applicable agreements, have been obtained and are in full force and effect. (j) No Action. The Authority will take no action and will cause no action to be taken that would cause the interest with respect to the Bonds to be includable in gross income for federal income tax purposes. (k) Certificates of Authority Officers. Any certificate signed by any authorized officer of the Authority and delivered to the Underwriter on or prior to the Closing in connection with the execution, sale and delivery of the Bonds and the execution and delivery of the Legal Documents shall be deemed a representation and warranty by the Authority to the Underwriter as to the statements made therein but not of the person signing the same. SF1-267431 6 Section 7. Closing Conditions. The Underwriter has entered into this Authority Purchase Agreement in reliance upon the representations and warranties of the Authority contained herein, the representations, warranties and agreements to be contained in the documents and instruments to be delivered at the Closing, the performance by the Authority of its obligations hereunder, and the opinions of Bond Counsel, counsel to the Trustee, the City Attorney, and counsel to the Underwriter, described hereafter. Accordingly, the Underwriter's obligations under this Authority Purchase Agreement to purchase, to accept delivery of and to pay for the Bonds shall be conditioned upon and subject to (i) the performance by the Agency, the Authority and the Trustee of their obligations to be performed hereunder and under such documents and instruments at or prior to the Closing, (ii) the accuracy in all material respects, in the reasonable judgment of the Underwriter, of the representations and warranties of the Authority herein as of the date hereof and of the time of the Closing and the accuracy in all material respects of the representations, warranties and agreements to be contained in the documents and instruments to be delivered at the Closing as of the time of the Closing, and (iii) shall also be subject to the following additional conditions: (a) Bring-down of Representations. The representations and warranties of the Authority contained herein and of the Agency contained in the Agency Purchase Agreement shall be true, complete and correct on the date hereof and on and as of the date of the Closing, as if made on the' date of the Closing (the "Closing Date"). (b) Authorization. Execution and Delivery of Documents. As of the Closing Date, the Bonds, the Legal Documents and the Official Statement shall have been duly authorized, executed and delivered by the respective parties thereto, in substantially the forms heretofore submitted to the Underwriter with only such changes as shall have been agreed to in writing by the Underwriter, and said agreements shall be in full force and effect and not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter, and there shall have been taken in connection therewith, with the issuance of the Bonds and with the transactions contemplated thereby and by this Authority Purchase Agreement, all such actions as Bond Counsel shall deem to be necessary and appropriate to render the opinion set forth in Appendix __ to the Official Statement. (c) No Amendment of Official Statement. At the Closing, the Official Statement shall not have been amended, modified or supplemented, except as may have been agreed in writing by the Underwriter. (d) On or prior to the Closing Date, the Underwriter shall have received copies of the following documents, in each case satisfactory in form and substance to the Underwriter and its counsel: (1) Agreements. The Indenture, the Continuing Disclosure Certificate, the Agency Purchase Agreement and this Authority Purchase SF1-267431 7 Agreement,. each duly executed and delivered by the respective parties thereto, with such amendments, qualifications or supplements as may have been agreed to in writing by the Underwriter; (2) Official Statement. The Official Statement duly executed and delivered on behalf of the Agency by the Executive Director of the Agency, with such amendments, qualifications or supplements as may have been agreed to in writing by the Underwriter; (3) Opinion of Bond Counsel. An approving opinion satisfactory to the Underwriter, dated the Closing Date and addressed to the Agency and to the Authority, of Bond Counsel, in substantially the form attached as Appendix __ to the Official Statement, together with an opinion of such Bond Counsel satisfactory in form and substance to the Underwriter, dated the Closing Date and addressed to the Trustee and the Underwriter, to the effect that such opinion addressed to the Agency and to the Authority may be relied upon by the Underwriter and the Trustee to the same extent as if such opinion was addressed to them. (4) Supplemental Opinion of Bond Counsel. A. supplemental opinion of Bond Counsel in form and substance satisfactory to the Underwriter, dated the Closing Date, addressed to the Agency, .the Authority ....... and the Underwriter to the effect that: (i) Specified Sections of Official Statement Correct and Complete The statements set forth under .the captions "INTRODUCTION," "THE BONDS," "SECURITY FOR THE BONDS," "CONTINUING DISCLOSURE" and "TAX EXEMPTION" and in Appendix - "SUMMARY OF PRINCIPAL LEGAL DOCUMENTS" insofar as such statements purport to summarize certain provisions of the Bonds, the Indenture, Continuing Disclosure Certificate and such counsel's opinion concerning certain federal tax matters relating to the Bonds, are accurate in all material respects; (ii) Due Authorization. Execution and Delivery: Legal Valid and Binding Agreement - This Authority Purchase Agreement has been duly authorized, executed and delivered by the Authority and, assuming due authorization and execution thereof by the Underwriter, constitutes a legal, valid and binding obligation of the Authority, enforceable against the Authority, in accordance with its terms, except as limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors' rights generally and that the enforceability of the Legal Documents is subject to the effect of general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair SF1-267431 8 dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered a proceeding in equity or at law; and (iii) The Bonds are secured by a pledge of the Tax Revenues (as defined in the Indenture) for the exclusive benefit of the Bonds and any parity obligations and such pledge is irrevocable until the Bonds have been defeased in accordance with the Indenture. (5) Opinion of City Attorney. An opinion of the City Attorney, dated the date of Closing, in form and substance satisfactory to the Underwriter, addressed to the Agency, the Trustee, the Underwriter and the Authority to the effect that: (i) Due Organization and Existence - The Agency is a redevelopment agency duly organized and validly existing under the Constitution and the laws of the State of California; (ii) Agency Resolution - The Agency Resolution approving and authorizing the execution and delivery of the Legal Documents to which the Agency is a party and approving the Official Statement was duly adopted at a meeting of the Agency which was called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout; (iii) No Litigation - Except as disclosed in the Official Statement, to the best of such counsel's knowledge, there is no action, suit, proceeding or investigation at law or in equity before or by any court, public board or body, pending or threatened against or affecting the Agency, which would materially and adversely impact the Agency's ability to complete the transactions described in and contemplated by the Official Statement, to restrain or enjoin the pledge of Tax Revenues or payment of debt service on the Bonds or in any way contesting or affecting the validity of the Legal Documents to which the Agency is a party or the Bonds or the transactions relating to the Project as described in the Official Statement; (iv) No Conflict - The execution and delivery of the Legal Documents to which the Agency is a party and the approval of the Official Statement, and compliance with the provisions thereof and hereof, under the circumstances contemplated thereby, do not and will not in any material respect conflict with or constitute on the part of the Agency a breach of or default under any agreement or other ~ -. instrument to which the Agency is a party or by which it is bound or any existing law, regulation, court order or consent decree to which the SF1-267431 9 Agency is subject, a consequence of which could be to materially and adversely affect the ability of the Agency to perform its obligations under the Legal Documents to which it is a party; (v) Due Authorization. Execution and Delivery. Legal Valid and Binding Agreements - The Legal Documents to which the Agency is a party have been duly authorized, executed and delivered by the Agency, and, assuming due authorization, execution and delivery by the other parties thereto constitute legal, valid and binding agreements of the Agency enforceable in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium.or similar laws or equitable principles relating to or limiting creditors rights generally and by the application of equitable principles if equitable remedies are sought and by the limitations on legal remedies imposed on actions against redevelopment agencies in the State of California; (vi) Execution and Delivery of Bonds - The Bonds have been validly authorized, executed and delivered by the Agency; (vii) No Consents Required- Official Statement. Legal Documents - No authorization, approval, consent, or other order of the State of California or any other governmental authority or agency within the State of California, other than the Agency Council, is required for the valid authorization, execution and delivery of the Legal Documents to which the Agency is a party and the approval of the Official Statement; (viii) Official Statement - Based upon examinations which the City Attorney has made and the City Attorney's discussions in conferences with certain officials of the Agency and others with respect to the Official Statement and without having undertaken to determine independently the accuracy, completeness or fairness of the statements contained in the Official Statement (including the Appendices attached thereto), nothing has come to the City Attorney's attention which would lead the City Attorney to believe that the Official Statement (other than (i) financial and statistical data therein and incorporated therein by reference, as to which no opinion need be expressed and (ii) information concerning the book-entry-only syStem) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; SF1-267431 10 (ix) Due Organization and Existence - The Authority is a joint powers authority duly organized and validly existing under the Constitution and the laws of the State of California; (x) Authority Resolution - The Authority Resolution approving and authorizing the execution and delivery of the Legal Documents to which the Authority is a party was duly adopted at a meeting of the Authority which was called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout; (xi) No Litigation - Except as disclosed in the Official Statement, to the best of such counsel's knowledge, there is no action, suit, proceeding or investigation at law or in equity before or by any court, public board or body, pending or threatened against or affecting the Authority, which would materially and adversely impact the Authority's ability to complete the transactions described in and contemplated by the Official Statement, to restrain or enjoin the pledge of Tax Revenues or payment of debt service on the Bonds or in any way contesting or affecting the validity of the Legal Documents to which the Authority is a party or the Bonds or the transactions relating to the Project as described in the Official Statement; (xii) No Conflict - The execution and delivery of the Legal Documents to which the Authority is a party and the approval of the Official Statement, and compliance with the provisions thereof and hereof, under the circumstances contemplated thereby, do not and will not in any material respect conflict with or constitute on the part of the Authority a breach of or default under any agreement or other instrument to which the Authority is a party or by which it is bound or any existing law, regulation, court order or consent decree to which the Authority is subject, a consequence of which could be to materially and adversely affect the ability of the Authority to perform its obligations under the Legal Documents to which it is a party; (xiii) Due Authorization, Execution and Delivery. Legal Valid and Binding Agreements - The Legal Documents to which the Authority is a party have been duly authorized, executed and delivered by the Authority, and, assuming due authorization, execution and delivery by the other parties thereto constitute legal, valid and binding agreements of the Authority enforceable in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar lawS or - equitable principles relating to or limiting creditors rights generally and by the application of equitable principles if equitable remedies are sought and by the limitations on legal remedies imposed on actions against redevelopment agencies in the State of California; and (xiv) No Consents Required - Leeal Documents - No authorization, approval, consent, or other order of the State of California or any other governmental authority or agency within the State of California is required for the valid authorization, execution and delivery of the Legal Documents to which the Authority is a party. (6) Opinion of Counsel to Trustee. An opinion, satisfactory in form and substance to the Underwriter, of counsel to the Trustee, dated the Closing Date and addressed to the Underwriter, the Agency and the Authority, to the effect that: (i) Due Organization and Existence - The Trustee is a duly organized and validly existing banking corporation in good standing under the laws of the State of California and has full power and authority to undertake the trust of the Indenture and to enter into the Continuing Disclosure Certificate; (ii) Corporate Action - The Trustee has duly authorized, executed and delivered the Indenture and the Continuing. ..... Disclosure Certificate and by all proper corporate action has authorized acceptance of the duties of the Trustee under of the Indenture and the Continuing Disclosure Certificate and has authorized in such capacity the execution and delivery of the Bonds; (iii) Due Authorization. Execution and Delivery Assuming the corporate power and legal authority of, and the due authorization, execution and delivery by the other parties to the Legal Documents, the Indenture and Continuing Disclosure Certificate are valid, legal and binding obligations of the Trustee, enforceable against the Trustee in accordance with their terms, except as enforcement may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws or equitable principles relating to or limiting creditors' rights generally; (iv) Authentication of Bonds - The Bonds have been validly authenticated and delivered by the Trustee pursuant to direction from the Agency; (v) Consents - Exclusive of federal or state securities laws and regulations, other than routine filings required to be made with governmental agencies in order to preserve the Trustee's authority to perform a trust business (all of which routine filings counsel SF1-267431 12 believes, after reasonable inquiry and investigation, to have been made), no consent, approval, authorization or other action by any governmental or regulatory authority having jurisdiction over the Trustee is or will be required for the execution and delivery by the Trustee of the Indenture or Continuing Disclosure Certificate or the execution and delivery of the Bonds; and (vi) No Litigation - There is no litigation pending or, to the best of its knowledge, threatened against or affecting the Trustee to restrain or enjoin the Trustee's participation in, or in any way contesting the powers of the Trustee with respect to the transactions contemplated by the Bonds, the Indenture and the Continuing Disclosure Certificate. (7) Opinion of Underwriter's Counsel. The opinion of O'Melveny & Myers LLP, San Francisco, California, counsel for the Underwriter, dated the date of Closing and addressed to the Underwriter, to the effect that (i) the Bonds are exempt from registration pursuant to the Securities Act of 1933, as amended, and the Indenture is exempt from qualification as an indenture pursuant to the Trust Indenture Act of 1939, as amended, and (ii) based upon discussions in' conferences with certain officials of the Agency and others with respect to the Official Statement and without having undertaken to determine independently the accuracy, completeness or fairness of the statements contained in the Official Statement (including the cover page and the Appendices attached thereto), nothing has come to the attention of the attorneys providing legal services in connection with the transaction which would lead them to believe that the Official Statement (other than information pertaining to DTC, financial and statistical data therein and incorporated therein by reference and the appendices thereto, as to which no opinion need be expressed) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (8) Agency Certificate. A certificate, dated the Closing Date and signed by a duly authorized official of the Agency, in form and substance satisfactory to the Underwriter, to the effect that: (i) Representations and Warranties - The representations and warranties of the Agency 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) Complied with All Agreements - The Agency has complied with all agreements and satisfied all the conditions on its part SFI-267431 13 to be .performed or satisfied at an prior to the Closing Date under the Legal Documents to which the Agency is a party and the Official Statement; (iii) No Litigation - To the best of such official's knowledge, no action, suit or proceeding is pending or threatened against the Agency (a) to restrain or enjoin the executiOn or delivery of any of the Bonds or the Legal Documents or the payment of debt service payments on the Bonds, (b) in any way contesting or affecting the validity of the Bonds, the Legal Documents or the authority of the Agency to enter into the Legal Documents to which the Agency is a party or (c)in any way contesting or affecting the powers of the Agency in connection with any action contemplated by the Official Statement or the Agency Purchase Agreement; (iv) No Change in Events - To the best knowledge of said individual, no event has occurred since the date of the Official Statement which should be disclosed in the Official Statement for the purpose for which it is to be used or which it is neCessary to be disclosed therein in order to make the statements and information therein not misleading in any material respect; and (v) No Untrue or Misleading Statements - The information contained in the Official Statement pertaining to the Agency is true and correct and 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 light of the circumstances under which they were made, not misleading in any material respect. (9) Authority Certificate. A certificate, dated the Closing Date and signed by a duly authorized official of the Authority, in form and substance satisfactory to the Underwriter, to the effect that: (i) Representations and Warranties - The representations and warranties of the Authority 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) Complied with All Agreements - The Authority has complied with all agreements and satisfied all the conditions on its part to be performed or satisfied at an prior to the Closing Date under the Legal Documents to which the Authority is a party and the Official Statement; and $FI-267431 14 (iii) No Litigation - To the best of such official's knowledge, no action, suit or proceeding is pending or threatened against the Authority (a) to restrain or enjoin the execution or delivery of any of the Bonds or the Legal Documents or the payment of debt service payments on the Bonds, (b) in any way contesting or affecting the validity of the Bonds, the Legal Documents or the authority of the Authority to enter into the Legal Documents to which the Authority is a party or (c) in any way contesting or affecting the powers of the Authority in connection with any action contemplated by the Official Statement or this Authority Purchase Agreement. (10) Trustee Certificate. A certificate of the Trustee dated the Closing Date, signed by a duly authorized officer of the Trustee, in form and substance satisfactory to the Underwriter, to the effect that: (i) Due Organization and Existence - The Trustee is a banking corporation duly organized and in good standing under the laws of the State of California and has all necessary power and authority to enter into and perform its duties under the Indenture and Continuing Disclosure Certificate; (ii) Corporate Action - The Trustee is duly authorized to enter into the Indenture and Continuing Disclosure Certificate and to authenticate and deliver the Bonds to the Underwriter pursuant to the terms of the Indenture and, when executed by the other parties thereto, the Indenture and Continuing Disclosure Certificate will constitute legal, valid and binding obligations of the Trustee enforceable in accordance with their terms; (iii) Execution and Delivery of Bonds - The Bonds have been duly executed and delivered to the Authority pursuant to direction from the Agency and duly executed and delivered to the Underwriter pursuant to direction from the Authority; (iv) No Breach or Default - The Trustee is not in breach of or default under any law or administrative rule or regulation of the United States of America or of any department, division, agency or instrumentality thereof, or any applicable court or administrative decree or order, or any other instrument to which the Trustee is a party or is otherwise subject or bound and which would materially impair the ability of the Trustee to perform its obligations under the Indenture and Continuing Disclosure Certificate; provided, however, that the Trustee need not certify to compliance w/th any federal or --. state securities laws; SF1-267431 15 (v) No Litigation - 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 of its knowledge, threatened in any way affecting the existence of the Trustee or the titles of its directors or officers to their respective offices, or seeking to restrain or enjoin the execution, sale or delivery of the Bonds, the application of the proceeds thereof in accordance with the Indenture, or in any way contesting or affecting the validity or enforceability of the Bonds; and (vi) No Conflict - The execution and delivery by the Trustee of Indenture and Continuing Disclosure. Certificate, and compliance with the terms thereof will not, in any material respect, conflict with, or result in a violation or breach of, or constitute a default under, any loan agreement, indenture, bond, note, resolution or any other agreement or instrument to which the Trustee is a party or by which it is bound, or any law or any rule, regulation, order or decree of any court or governmental agency or body having jurisdiction over the Trustee or any of its activities or properties, or (except with respect to the lien of the Indenture) result in the creation or imposition of any lien, charge 'or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the Trustee. (11) Trustee Resolution. Certified copies of the general resolution of the Trustee authorizing the execution and delivery of certain documents by certain officers of the Trustee, which resolution authorizes the authentication and delivery of the Bonds and the Indenture; (12) City Resolution. Certified copies of resolution adopted ~by the City Council approving the issuance of the Bonds by the Agency; (13) Agency Resolution(s). Certified copies of resolutions(s) adopted by the Agency Council of the Agency authorizing the execution and delivery of the Legal Documents to which the Agency is a party; (14) AuthorityResolution(s). Certified copies of resolutions(s) adopted by the Authority authorizing the execution and delivery of the Legal Documents to which the Authority is a party; (15) Non-Arbitrage Certificate. A non-arbitrage certificate in form satisfactory to Bond Counsel; .... (16) IRS Form 8038-G. Internal Revenue Service Form 8038- G, executed by an authorized officer of the Agency; sm-26743~ 16 (17) Ratings. Evidence from Moody's Investors Service and Standard & Poor's Ratings Group that the Bonds have been rated .... and .., respectively; and (18) Miscellaneous. Such additional legal opinions, certificates, proceedings, instruments and other documents as Co-Bond Counsel or counsel for the Underwriter may reasonably request to evidence compliance with legal requirements, the truth and accuracy, as of the time of Closing, of the representations and warranties contained herein, in the Legal Documents and in the Official Statement and the due performance or satisfaction by the Trustee, the Authority and the Agency at or prior to such time of all agreements then to be performed and all conditions then to be satisfied. [(e) The required fees shall have been paid for the Insurance issued by the Insurer with respect to the Bonds, and such Insurance shall be in full force and effect.] (f) All matters relating to this Authority Purchase Agreement, the Bonds and the sale thereof, the Official Statement, the Legal Documents and the consummation of the transactions contemplated by this Authority Purchase Agreement shall have been approved by the Underwriter and counsel for the Underwriter, such approval not to be unreasonably withheld. If the Authority shall be unable to satisfy the conditions to the obligations of the Underwriter to purchase, to accept delivery of and to pay for the Bonds contained in this Authority Purchase Agreement, or if the obligations of the Underwriter to purchase, to accept delivery of and to pay for the Bonds shall be terminated for any reason permitted by this Authority Purchase Agreement, this Authority Purchase Agreement shall terminate and neither the Underwriter nor the Authority shall be under any further obligation hereunder, except that the respective obligations of the Authority and the Underwriter set forth in Sections 9 and 11 hereof shall continue in full force and effect. Section 8. Termination. The Underwriter shall have the right to terminate its obligations under this Authority Purchase Agreement to purchase, to accept delivery of and to pay for the Bonds by notifying the Authority of their election to do so if, 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 has been materially adversely affected in the reasonable judgment of the Underwriter by reason of any of the following: (a) Legislation. Judicial Decisions or Rulings. An amendment to the Constitution of the United States or the constitution of the State of California shall have been passed or legislation enacted or introduced in the Congress or ...... recommended for passage by the President of the United States, or a decision rendered by a court established under Article III of the Constitution of the United SF1-267431 17 I : States or by the United States Tax Court with any of the effects listed in clauses (i), (ii), (iii) or (iv) below, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made: (i) by or on behalf of the United States Treasury Department, or by or on behalf of the Internal Revenue Service, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon payments of the general character as such interest as would be received by the Owners of the Bonds; or (ii) by or on behalf of the State of California or the California Franchise Tax Board, with the purpose or effect, directly or indirectly, of imposing California personal income taxation upon payments of the general character of interest as would be received by the Owners of the Bonds; or (iii) by or on behalf of the Treasury Department of the United States or the Internal Revenue Service or by or on behalf of the State of California or the California Franchise Tax Board, with the purpose or effect, directly or indirectly, of changing the federal or State of California income tax rates, respectively; or (iv) by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction over the subject matter thereof, to the effect that the Bonds, or obligations of the general character of the Bonds,. including any and all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or the Indenture is not exempt from qualifications under the Trust Indenture Act of 1939, as amended; (b) War. The declaration of war or engagement in major military hostilities by the United States or the occurrence of any other national emergency or calamity relating to the effective operation of the government or the financial community in the United States; (c) Banking Moratorium. 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; (d) Securities Exchange Restrictions. The imposition by the New York Stock Exchange, 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 the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, underwriters; (e) Changes to Federal Securities Law. An order, decree or injunction of - any court of competent jurisdiction, or order, filing, regulation or official statement by the Securities and Exchange Commission, or any other governmental agency $F1-267431 18 having jurisdiction over the subject matter thereof, issued or made to the effect that the issuance, offering or sale of obligations of the general character of the Bonds, including any or all underlying obligations, as contemplated hereby or by the Official Statement, is or would be in violation of any federal securities law as amended and then in effect; (f) Amendment to Federal or State Constitution. 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 Agency, its property, income, securities (or interest thereon) or the validity or enforceability of the Bonds; (g) Official Statement Untrue or Incomplete. Any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material adverse respect any statement or information contained in the Official Statement, or has the effect that the Official Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading; (h) Certain Amendments to the Official Statement. An event described in Section 6(h) hereof occurs prior to the Closing which, in the reasonable judgment of the Underwriter, requires or has required a supplement or amendment to the Official Statement; or (i) Action by Rating Aeencies. Any downgrading, suspension or withdrawal, or any official statement as to a possible downgrading, suspension or withdrawal, of any rating by Moody's Investors Service or Standard & Poor's Ratings Group or Fitch Investors Service of any obligations of the Agency (excluding obligations for which the Agency acts merely as a conduit issuer), including the Bonds. Section 9. Expenses. (a) The Underwriter shall be under no obligation to pay, and the Authority shall pay, any expenses incident to the performance of the Authority's obligations hereunder, including, but not limited to, (i) the cost of preparation, printing and delivery of the Preliminary Official Statement and of preparation, printing and delivery of the Official Statement; (ii)the cost of preparation of the Bonds; (iii)the fees and disbursements of Bond Counsel; (iv) the fees and disbursements of the Trustee; (v) the fees and disbursements of Coopers & Lybrand LLP for their services as the Independent Auditors of the Authority; (vi)the fees and disbursements of any other engineers, accountants, and other experts, consultants or advisers retained by the Authority; (vii) the fees for the Bond ratings; and (viii) the Insurance fees referred to in paragraph (e) of Section 7. ~1-26~31 19 (b) The Underwriter shall pay (i) the cost of preparation and printing of this Authority Purchase Agreement and the Blue Sky and Legal Investment Surveys; (ii) all advertising expenses in connection with the public offering of the Bonds; (iii) the California Debt Advisory Commission fee; and (iv) all other expenses incurred by them or any of them in connection with the public offering of the Bonds, including the fees and disbursements of counsel retained by them. Section 10. Notices. Any notice or other communication to. be given to a party under this Authority Purchase Agreement may be given by delivering the same in writing by mail to the party entitled thereto at its address set forth below, or at such other address as such party may provide to the other parties in writing from time to time, namely: (a) If to the Authority: Capital Improvement Financing Authority, City of South San Francisco 315 Maple Avenue South San Francisco, CA 94080 (b) If to the Trustee: (c) If to the Underwriter: PaineWebber Incorporated 100 California Street, Suite '1200 San Francisco, CA 94111 Attention: Public Finance Department Section 11. Parties in Interest. This Authority Purchase Agreement is made solely for the benefit of the Authority and the Underwriter (including successors or assigns of the Underwriter) and no other person shall acquire or have any right hereunder or by virtue hereof. All of the Authority's representations, warranties and agreements contained in this Authority Purchase Agreement shall remain operative and in full force and effect, regardless of (i) any investigations made by or on behalf of any of the Underwriter; (ii) delivery of any payment for the Bonds pursuant to this Authority Purchase Agreement; and (iii) any termination of this Authority Purchase Agreement. Section 12. Governing Law. This Authority Purchase Agreement shall be governed by the laws of the State of California. Section 13. Entire Agreement. This Authority Purchase Agreement when accepted by you in writing as heretofore specified shall constitute the entire agreement between us and is made solely for the benefit of the City and the Underwriter (including the successors or assigns thereof). No other person shall acquire or have any right hereunder or by virtue hereof. Section 14. Determination of Underwriting Period. The term "end of the underwriting period" means such time as the Underwriter no longer retain, directly or as a member or an underwriting syndicate, an unsold balance of the Bonds for sale to the public. SF1-267431 20 Unless the Underwriter gives notice to the contrary, the "end of the underwriting period" shall be deemed the date of the Closing. Any notice delivered pursuant to this Section shall be written notice, delivered to the Authority at or .prior to the Closing, and shall specify a date, other than the date of the Closing (or other date specified by notice delivered pursuant to this section), to be deemed the "end of the underwriting period." Section 15. Counterparts. This Authority Purchase Agreement may be executed in any number of counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Section 16. Headings. The headings of the sections of this Authority Purchase Agreement are inserted for convenience only and shall not be deemed to be a part hereof. [Remainder of page intentionally left blank] m-26,43~ 21 Section 17. Effectiveness. This Authority Purchase Agreement shall become effective upon the acceptance hereof by the authorized officer of the Authority or his or her designee and shall be valid and enforceable at the time of such acceptance and acknowledgment. Very truly yours, PAINEWEBBER INCORPORATED, as Underwriter Title: Accepted this ~ day of 1997 CAPITAL IMPROVEMENTs FINANCING AUII-IORITY, CITY OF SOUTH SAN FRANCISCO, CALIFORNIA By APPROVED AS TO FORM: CITY ATI'ORNEY SF1-267431 S-1 SCHEDULE I Bonds Price Maturity Principal Interest or Date Amount Rate Yield