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HomeMy WebLinkAboutBANK OF NEW YORK MELLON TRUST COMPANY, N.A., THE (6).Quint & Thinunig LLP LETTER AGREEMENT FOR PURCHASE November 6, 2013 City of Santa Ana 20 Civic Center Plaza Santa Ana, CA, 92701 Attention: City Manager Santa Ana Financing Authority 20 Civic Center Plaza ,Manta Ana, CA, 92701 Attention: Executive Director A -2014 -133 -E 04/30/7.4 05/28/14 Re: $ Lease Agreement, dated as of June 1, 2014, by and between the Santa Ana Financing Authority and the City of Santa Ana, assigned to Wes Prn A&n e Pnbli Ladies and Gentlemen: The undersigned, W APF and CB, collectively, the "Purchaser& "), offer, upon the following terms, to acquire (i) the rights, title and interest of Santa Ana Financing Authority (the "Authority") under the Lease Agreement (hereinafter defined), including its rights to receive Lease Payments to be made by the City of Santa Ana (the "City") under the Lease Agreement, dated as of June 1, 2014 (the "Lease Agreement " }, by and between the City and he Authority; prpvlded that the Authority's rights to indemnificatipn and paymenfi or reimbursement far any costs or expenses thereunder have been retaixled by the Authorify to the extent such rights accrue tp the Authority and shall have been assigned to the Purchasers to the extent such rights accrue to the PurchaserA, by entering into an ara assign® rnent agreements, each dated as of June 1, 2014 (gdkctivety. the "Assignment Agreements " }, with the Authority, and (ii) except for the Authprity's obligation under Section 4 thereof, the rights, title and interest pf tkte Authority under the Site and Facility Lease, dated as of June 1, 207.4 (the "Site and Facility Lease "), by and between the City and, the Authority. Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Lease Agreement. 1. Purchase and Purchase Price; Terms of Authority's Obligations. The City and the Authority agree to execute and deliver the Site and Facility Lease and the Lease Agreement, and the Purchasers alto purchase the Authority's rights, title and interest under the Lease Agreement, as described more specifically above and in the Assignment Agreements, at all aggreg= purchase price of $ . The Lease Payments under the Lease Agreement, the- amouxtits allocable to each of the Purchasers and the interest ratel applicable thereto shall be as shown in Exhibits A-1 A -2, , A--3 hereto (with the totaJc>f all Lease Pay jn Pxhibi A- 4heretol. mm..._._�_ 19014.10 l (e) CM shall transfer to the City, $ , to be applied to the City's costs of the transaction or applied to make the first Lease Payment. Wire instructions to be provided prior to the Closing Date. 4. Closing. At 8:00 a.m. California Time, on June 12, 2014, or at such other time or on such earlier or later date as the Purchasers the Authority and the City mutually agree upon (the "Closing Date "), the City will deliver (or cause to be delivered) the Site and Facility Lease and the Lease Agreement executed by the City and the Authority, and the Assignment Agreements executed by the Authority and the Purchasers, and the Purchasers will pay the purchase price for the Authority's rights, title and interest in the Site and Facility Lease and the Lease Agreement as set forth in Section 1 hereof in federal or other immediately available funds. 5. Representations and Warranties of the City. The City represents and warrants to the Purchasers, that: (a) The City is a municipal corporation or anized and existing under the Constitution and the laws of the State of California (the "State "), and has all necessary power and authority to enter into and perform its duties under this Agreement and the Site and Facility Lease and the Lease Agreement (collectively, the "City Documents "). (b) To the best knowledge of the City, neither the execution and delivery of the City Documents, or the execution this Agreement, and compliance with the provisions on the City's part contained therein, nor the consummation of any other of the transactions herein and therein contemplated, nor the fulfillment of the terms hereof and thereof, materially conflicts with or constitutes a material breach of or default under nor materially contravenes any law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City is a party or is otherwise subject, nor does any such execution, delivery, adoption or compliance result in the security interest or encumbrance of any nature whatsoever upon any of the properties or assets of the City under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as provided by the City Documents. (c) The City Documents have been duly authorized by the City, and, assuming due authorization, execution and delivery by the other parties thereto, will constitute legal, valid and binding agreements of the City enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other laws affecting the enforcement of creditors' rights generally and by the application of equitable principles if sought and by the limitations on legal remedies imposed on actions against cities in the State of California. (d) There is no consent, approval, authorization or other order of, or filing with, or certification by, any regulatory agency having jurisdiction over the City required for the execution and delivery of the City Documents or the consummation by the City of the other transactions contemplated by the City Documents. (e) To the best of the knowledge of the City, there is, and on the Closing Date (as hereinafter defined) there will be, no action, suit, proceeding or investigation at law or in equity before or by any court or governmental agency or body pending or threatened against the City to restrain or enjoin the payments to be made pursuant to the Lease Agreement, or in any way contesting or affecting the validity of the City Documents or the authority of the City to approve this Agreement, or enter into the City Documents or contesting the powers of the City to enter -3- 80A -107 (c) The execution and delivery by the City of an Internal Revenue Service Form 8038 -G in a form acceptable to Special Counsel and the Purchasers (d) Delivery of a legal opinion addressed to the City, with a reliance letter to each of the aftd-fig,- Purchasers, dated the Closing Date, of Quint & Thimmig LLP, as Special Counsel, with respect to (i) the validity and enforceability of the Lease Agreement, the Site and Facility Lease, and the Assignment Agreements by and against the City and the Authority (as applicable), (ii) the tax - exempt status of the interest component of the Lease Payments, and (iii) such other matters as may be requested by the Purchasers in form and substance acceptable to the Purchasers, (e) The delivery of a certificate dated the Closing Date and signed by the City Manager, or such other officer of the City as the City Council may approve, to the effect that: (i) to the best knowledge of the City, there are no actions or proceedings against the City pending and notice of which has been served on the City or threatened that materially adversely affect the City's ability to pay the Lease Payments or to perform its obligations under the Site and Facility Lease and Lease Agreement; (ii) the representations and warranties of the City contained in this agreement and the Lease Agreement 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; and (iii) the City acknowledges receipt from the Purchasers, on behalf of the Authority, of the advance rental payment specified in Section 4 of the Site and Facility Lease; (f) The delivery by the City of a title policy for the property that is the subject of the Site and Facility Lease and Lease Agreement in form acceptable to the Purchasers (g) The execution and delivery by the City of a certificate as to arbitrage; and (h) The delivery by each of the Purchasers of an investor letter in form and substance as attached hereto as Exhibit B. (i) Such other documents as may be reasonably requested by the Purchasersg. 7. Events Permitting the Purchasers to Terminate. The Purchasers may terminate their obligation to purchase the Authority's rights, title and interest under the Site and Facility Lease and the Lease Agreement before the Closing Date if any of the following occurs: (a) any legislative, executive or regulatory action (including the introduction of legislation) or any court decision that, in the judgment of the Purchasera, casts sufficient doubt on the legality of or the tax- exempt status of the interest component of obligations such as those represented by the Lease Agreement and the Lease Payments so as to materially impair the marketability or to materially reduce the market price of such obligations, in the reasonable opinion of the Purchasers (b) any action by the Securities and Exchange Commission or a court that would require registration of the Lease Agreement under the Securities Act of 1933, as amended; or (c) any event occurs or becomes known that has a material adverse effect on the financial condition of the City or on the ability of the City or the Authority to perform under the Site and Facility Lease, the Lease Agreement or the Assignment Agreements. -5- �i 1. M;�. IN WITNESS WHEREOF, the parties hereto have executed and entered into this Letter Agreement for Purchase by their officers thereunto duly authorized as of the day and year first above written. The foregoing is hereby agreed to and accepted as of the date first above written: CITY OF SANTA ANA By— Name Title SANTA ANA FINANCING AUTHORITY By Name Title MIAMINAM F-1101" a UPIRM M By— Name Title By Narne lidge_ -7- Foarlymn EXHIBIT A -2 1 15 7/1/15 1/1/16 1117 18 1119 1/1/20 7/1/20 71 1 1 7/1/22 1123 7123 1 1 2 7 1 TOTAL c 4A Exhibit A -2 80A -113 71 1/1/16 1 16 7/1/17 19 7119 1 /20 7/1/20 1L1/ 7/1/21 M 1/22 1 1 z3 7123 1 1 �4 25 7125 1 1 1 /26 1/1/27 1126 TOTAL BXHIBIT A -4 ., h1tereat Exhibit A -4 thereto in making its investment decision with respect to the Lease Agreement, and the Purchaser has had the opportunity to ask questions of and receive answers from knowledgeable individuals concerning the City and the Lease Agreement. The Purchaser is able and willing to bear the economic risk of the purchase and ownership of the rights, title and interest of the Authority under the Lease Agreement. (d) The Purchaser understands that the Lease Agreement has not been registered under the United States Securities Act of 1933 or under any state securities laws. The Purchaser agrees that it will comply with any applicable state and federal securities laws then in effect with respect to any disposition of the Lease Agreement by it, and further acknowledges that an current exemption from registration of the Lease Agreement does not affect or diminish such requirements. (e) The Purchaser has authority to purchase the rights, title and interest of the Authority under the Lease Agreement and to execute any instruments and documents required to be executed by the Purchaser in connection with the purchase of the rights, title and interest of the Authority under the Lease Agreement. The undersigned is a duly appointed, qualified, and acting officer of the Purchaser and is authorized to cause the Purchaser to make the representations and warranties contained herein on behalf of the Purchaser. (f) The Purchaser acknowledges that rights, title and interest of the Authority under the Lease Agreement are transferable with certain requirements, as described in the Lease Agreement. (g) The Purchaser acknowledges that the Lease Agreement is exempt from the requirements of Rule 15c2 -12 of the Securities and Exchange Commission and that the City has not undertaken to provide any continuing disclosure with respect to the Lease Agreement but that the City has agreed to provide other ongoing information to the Purchaser. By— Name Title Exhibit B Page 2 80A -117