Resolution 10445UHt ail
0143G
JHHW:TEC 8/29/84
RESOLUTION NO. 10445
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ALAMEDA
PROVIDING FOR THE BORROWING OF FUNDS FOR FISCAL YEAR
1984 -1985 AND THE ISSUANCE AND SALE OF 1984/1985 TAX AND
REVENUE ANTICIPATION NOTES THEREFOR
WHEREAS, pursuant to Sections 53850 et seq. of the Government Code of
the State of California, this City Council (the "Council ") has found and
determined that moneys are needed for the requirements of the City of Alameda
(the "City "), a municipal corporation duly organized and existing under the
laws of the State of California, to satisfy obligations payable from the
General Fund of the City, and that it is necessary that said sum be borrowed
for such purpose at this time by the issuance of temporary notes therefor in
anticipation of the receipt of taxes, revenue and other moneys to be received
by the City for the General Fund of the City during or allocable to the fiscal
year of the City beginning July 1, 1984 and ending June 30, 1985 ( "Fiscal Year
1 984 - 1985 ");
NOW, THEREFORE, the City Council of the City of Alameda hereby finds,
determines, declares and resolves as follows:
Section 1. Recitals True and Correct. All of the recitals herein set
forth are true and correct, and the Council so finds and determines.
Section 2. Issuance and Terms of Notes. Solely for the purpose of
anticipating taxes, revenue and other moneys to be received by the City for
the General Fund of the City during or allocable to Fiscal Year 1984 - 1985, and
not pursuant to any common plan of financing, the City hereby determines to
and shall borrow the principal amount of Five Million Dollars ($5,000,000) by
the issuance of temporary notes under Sections 53850 et seq. of the Government
Code of the State of California, designated "City of Alameda 1984/1985 Tax and
Revenue Anticipation Notes" (the "Notes "). The Notes shall be numbered from 1
consecutively upward in order of issuance, shall be dated the date specified
in the Purchase Contract (the "Purchase Contract ") by and between the City and
Rauscher Pierce Refsnes, Inc. (the "Underwriter "), shall mature on the date
specified in the Purchase Contract, which maturity date shall be not more than
one year from the date of the Notes, and shall bear interest, payable at
maturity and computed on a 30 -day month /360 -day year basis, at the rate set
forth in the Purchase Contract. Both the principal of and interest on the
Notes shall be payable, only upon surrender thereof, in lawful money of the
United States of America, at the principal corporate trust office of The Bank
of California, National Association (the "Paying Agent ") in San Francisco,
California and New York, New York.
Section 3. Form of Notes. The Notes shall be issued without coupons
and shall be substantially in the form and substance set forth in Exhibit A
attached hereto and by reference incorporated herein, the blanks in said form
to be filled in with appropriate words and figures.
Section 4. Use of Proceeds. The moneys so borrowed shall be deposited
in the General Fund of the City and used and expended by the City for any
purpose for which it is authorized to expend funds from the General Fund of
the City.
Section 5. Security. The principal amount of the Notes, together with
the interest thereon, shall be payable from taxes, revenue and other moneys
which are received by the City for the General Fund of the City for Fiscal
Year 1984 -1985. As security for the payment of the principal of and interest
on the Notes the City hereby pledges (a) the first $2,500,000 of "unrestricted
moneys ", as hereinafter defined, to be received in December, 1984, (b) the
first $2,500,000 of unrestricted moneys to be received in April, 1985, and (c)
any additional amount required to pay the interest on the Notes, of
unrestricted moneys to be received in June, 1985 (such pledged amounts being
hereinafter called the "Pledged Revenues "). The principal of the Notes and
the interest thereon shall constitute a first lien and charge thereon and
shall be payable from the Pledged Revenues. To the extent not so paid from
the Pledged Revenues, the Notes shall be paid from any other moneys of the
City lawfully available therefor. In the event that there are insufficient
unrestricted moneys received by the City to permit the deposit into the
Repayment Fund, as hereinafter defined, of the full amount of the Pledged
Revenues to be deposited in any month by the last business day of such month,
then the amount of any deficiency shall be satisfied and made up from any
other moneys of the City lawfully available for the repayment of the Notes and
interest thereon. The term "unrestricted moneys" shall mean taxes, income,
revenue, cash receipts, and other moneys intended as receipts for the General
Fund of the City for Fiscal Year 1984 -1985 and which are generally available
for the payment of current expenses and other obligations of the City.
Section 6. Paying Agent. The Bank of California, National Association,
is hereby appointed to act as the Paying Agent of the City for the purpose of
paying to the Noteholders upon presentation thereof, at the principal
corporate trust office of the Paying Agent in San Francisco, California and
New York, New York, both the principal of and interest on the Notes on
maturity and to perform such other duties and powers of the Paying Agent as
are prescribed in this Resolution. Said Paying Agent shall be compensated for
said services in accordance with the terms of said Paying Agent's written
proposal to the City.
2
Section 7. Repayment Fund. The Pledged Revenues shall be held by the
City in a special fund designated "1984/1985 Tax and Revenue Anticipation Note
Repayment Fund" (the "Repayment Fund ") and applied as directed in this
Resolution. Any money placed in the Repayment Fund shall be for the benefit
of the Notes, and until the Notes and all interest thereon are paid or until
provision has been made for the payment of the Notes at maturity with interest
to maturity, the moneys in the Repayment Fund shall be applied solely for the
purposes for which the Repayment Fund is created.
From the date this Resolution takes effect, all Pledged Revenues shall,
during the months in which received, be deposited in the Repayment Fund. On
or before the first day preceding the maturity date of the Notes, the moneys
in the Repayment Fund shall be transferred to the Paying Agent and used, to
the extent necessary, to pay the principal of and interest on the Notes. Any
moneys remaining in the Repayment Fund after the Notes and the interest
thereon have been paid, or provision for such payment has been made, shall be
transferred to the City's General Fund.
Section 8. Deposit and Investment of Fund. All moneys held by the City
in the Repayment Fund, if not invested, shall be held in time or demand
deposits of public funds and shall be secured at all times by bonds or other
obligations which are authorized by law as security for public deposits, of a
market value at least equal to the amount required by law.
Moneys in the Repayment Fund, to the greatest extent possible, shall be
invested in investment securities by the Director of Finance, as permitted by
the laws of the State of California as now in effect and as hereafter amended,
modified or supplemented from time to time, and the proceeds of any such
investments shall be deposited in the Repayment Fund and shall be part of the
Pledged Revenues.
Section 9. Execution of Notes. The Director of Finance of the City is
hereby authorized to execute the Notes by manual signature, and the City Clerk
of the City is hereby authorized to countersign the same by facsimile
signature and to affix the seal of the City thereto by facsimile impression
thereof, and said officers are hereby authorized to cause the blank spaces
thereof to be filled in as may be appropriate.
Section 10. Covenants and Warranties. It is hereby covenanted and
warranted by the City that all representations and recitals contained in this
Resolution are true and correct, and that the City and its appropriate
officials have duly taken all proceedings necessary to be taken by them, and
will take any additional proceedings necessary to be taken by them, for the
prompt collection and enforcement of the taxes, revenue, cash receipts and
other moneys pledged hereunder in accordance with law and for carrying out the
provisions of this Resolution.
3
Section 11. Arbitrage Covenant. This Council, as governing body of the
City of Alameda, the issuer of the Notes, hereby covenants that it will make
no use of the - proceeds of the Notes which, if such use had been made of such
proceeds on the date of issuance of the Notes, would have caused the Notes to
be "arbitrage bonds" under Section 103(c) of the Internal Revenue Code of
1954, as amended; and, to that end, so long as any of the Notes are
outstanding, the City, with respect to the proceeds of the Notes, and all
officers having custody or control of such proceeds, shall comply with all
requirements of said section and of the regulations of the United States
Department of the Treasury thereunder, to the extent that such regulations
are, at the time, applicable and in effect, so that the Notes will not be
"arbitrage bonds."
Section 12. Sale of Notes. The Notes are hereby authorized to be sold
to the Underwriter pursuant to and in accordance with the Purchase Contract,
to be dated as of the date of execution thereof by the City, by and between
the City and the Underwriter in substantially the form on file with the City
Clerk. Said form of Purchase Contract is hereby approved, and the Director of
Finance and the City Clerk of the City are hereby authorized and directed to
execute the Purchase Contract for and in the name and on behalf of the City,
upon presentation by the Underwriter to the Director of Finance of an offer to
purchase the Notes at a discount acceptable to the Director of Finance, but
not to exceed Eight Thousand Dollars ($8,000) and at a rate of interest
acceptable to the Director of Finance, but not to exceed eight percent (8 %)
per annum.
Section 13. Official Statement. The City Council hereby approves the
preliminary Official Statement describing the Notes, in substantially the form
submitted by the Underwriter and on file with the City Clerk, together with
any changes therein or additions thereto deemed advisable by the Director of
Finance. Distribution by the Underwriter of said preliminary Official
Statement to prospective purchasers of the Notes is hereby approved, ratified
and confirmed. The Director of Finance is hereby authorized and directed to
approve any changes in or additions to a final form of said Official Statement
deemed advisable by the Director of Finance, and to execute said final
Official Statement for and in the name and on behalf of the City.
Section 14. Preparation of Notes; Official Action. Jones Hall Hill &
White, A Professional Law Corporation, as bond counsel to the City, is
directed to cause suitable Notes to be prepared showing on their face that the
same bear interest at the rate aforesaid, and to cause the blank spaces
therein to be filled in to comply with the provisions of this Resolution in
accordance with the Purchase Contract, and to procure their execution by the
proper officers, and to cause the Notes to be delivered when so executed to
the purchaser or purchasers thereof upon the receipt of the purchase price by
the Director of Finance, in accordance with the Purchase Contract.
4
The Mayor, City Manager, Director of Finance and City Clerk, or any of
them, are further authorized and directed to make, execute and deliver to the
purchaser of the Notes (a) a certificate in the form customarily required by
purchaser of bonds of public corporations generally, certifying to the
genuineness and due execution of the Notes, (b) a receipt in similar form
evidencing the payment of the purchase price of the Notes, which receipt shall
be conclusive evidence that said purchase price of the Notes has been paid and
has been received by the City, and (c) a certificate attesting to the use of
the proceeds of the Notes, the investment thereof, and any other matters
relating to the tax exemption of the Notes pursuant to Section 103(c) of the
Internal Revenue Code of 1954, as amended. Any purchaser or subsequent taker
or holder of the Notes is hereby authorized to rely upon and shall be
justified in relying upon any such certificate or receipt with respect to the
Notes. Such officers and any other officers of the City are hereby authorized
to execute any and all other documents required to consummate the sale and
delivery of the Notes.
PASSED AND ADOPTED by the City Council of the City of Alameda,
California, this 18th day of September, 1984, by the following vote:
AYES:
NOES:
ABSENT:
ES E A L]
Attest:
City Clerk
5
Mayor
EXHIBIT A
CITY OF ALAMEDA, CALIFORNIA
1984/1985 TAX AND REVENUE ANTICIPATION NOTE
No.
$ Date: October , 1984
FOR VALUE RECEIVED, the City of Alameda (the "City "), State of
California, acknowledges itself indebted to and promises to pay to the bearer
hereof, at the principal corporate trust office of The Bank of California,
National Association in San Francisco, California and New York, New York, the
principal sum of
DOLLARS ($
in lawful money of the United States of America, on , together
with interest thereon at the rate of % per annum in like lawful money from
the date hereof until payment in full of said principal sum. Both the
principal of and interest on this Note shall be payable only upon surrender of
this Note as the same shall fall due; provided, however, no interest shall be
payable for any period after maturity during which the holder hereof fails
properly to present this Note for payment.
It is hereby certified, recited and declared that this Note is one of an
authorized issue of Notes in the aggregate principal amount of Five Million
Dollars ($5,000,000), all of like tenor, issued pursuant to the provisions of
Resolution No. of the City Council of the City duly passed and adopted
on September 18, 1984, and pursuant to Article 7.6 (commencing with Section
53850) of Chapter 4, Part 1, Division 2, Title 5, of the California Government
Code, and that all things, conditions and acts required to exist, happened and
been performed in regular and due time, form and manner as required by law,
and that this Note, together with all other indebtedness and obligations of
the City, does not exceed any limit prescribed by the Constitution or statutes
of the State of California.
The principal amount of the Notes, together with the interest thereon,
shall be payable from taxes, revenue and other moneys which are received by
the City for the Repayment Fund of the City for Fiscal Year 1984 -1985. As
security for the payment of the principal of and interest on the Notes the
City has pledged (a) the first $2,500,000 of "unrestricted moneys as
hereinafter defined, to be received in December, 1984, (b) the first
$2,500,000 of unrestricted moneys to be received in April, 1985, and (c) any
additional amount required to pay the interest on the Notes, of unrestricted
moneys to be received in June, 1985, (such pledged amounts being hereinafter
called the "Pledged Revenues "); and the principal of the Notes and the
6
interest thereon shall constitute a first lien and charge thereon and shall be
payable from the Pledged Revenues, and to the extent not so paid shall be paid
from any other moneys of the City lawfully available therefor. As used
herein, the term "unrestricted moneys" means the taxes, income, revenue, cash
receipt, and other moneys, intended as receipts for the General Fund of the
City for Fiscal Year 1984 -1985 and which are generally available for the
payment of current expenses and other obligations of the City.
IN WITNESS WHEREOF, the City of Alameda has caused this Note to be
executed by the Director of Finance of the City and countersigned by the City
Clerk of the City, and caused its official seal to be affixed hereto all as of
this day of October, 1984.
ES E A L]
Countersigned:
City Clerk
CITY OF ALAMEDA
By
7
Director of Finance
$5,000,000
CITY OF ALAMEDA
STATE OF CALIFORNIA
1984 -85 TAX AND REVENUE ANTICIPATION NOTES
CONTRACT OF PURCHASE
City of Alameda
2263 Santa Clara Avenue
Alameda, California 94501
Honorable Members of the City Council:
September , 1984
Rauscher Pierce Refsnes, Inc. (the "Underwriters "), acting not as
fiduciaries or agents for you, but on behalf of ourselves, offer to enter into
this agreement with the City of Alameda, California (the "Issuer "), which,
upon acceptance hereof by the Issuer, will be binding upon the Issuer and the
Underwriters. This offer is made subject to the written acceptance of this
Contract of Purchase by the Issuer and the delivery of such acceptance to us
at or prior to 11 :00 p.m., Pacific time, on the date hereof.
1. Purchase and Sale of the Notes. Upon the terms and conditions and in
reliance upon the representations, warranties and agreements herein set forth,
the Underwriters hereby agree to purchase from the Issuer, and the Issuer
hereby agrees to sell to the Underwriters, all (but not less than all) of
$5,000,000 in aggregate principal amount of the Issuer's 1984/85 Tax and
Revenue Anticipation Notes (the "Notes "). The Notes shall be
dated , shall mature on , and shall bear
interest payable on maturity of the Notes at a rate per annum equal to
%. The aggregate purchase price to be paid by the Underwriters for the
Notes shall be the aggregate principal amount thereof less a discount of
$8,000.
2. The Notes. The Notes shall be as described in, and shall be issued
and secured pursuant to the provisions of Resolution No. of the Issuer
adopted on September 18, 1984 (the "Note Resolution "), and Article 7.6,
Chapter 4, Part 1, Division 2, Title 5 (commencing with Section 53850) of the
California Government Code (the "Act ").
3. Use of Documents. The Issuer hereby authorizes the Underwriters to
use, in connection with the offer and sale of the Notes, this Contract of
Purchase and an Official Statement in a form approved by the Issuer, as
provided in the Note Resolution (which, together with all appendices thereto
and with such changes therein and supplements thereto as are consented to by
the Underwriters, is herein called the "Official Statement ", the Note
Resolution and all information contained herein and therein and all of the
documents, certificates or statements furnished by the Issuer to the
Underwriters in connection with the transactions contemplated by this Contract
of Purchase.
4. Offering of the Notes. The Underwriters agree to offer the Notes at
the initial offering price or yield set forth on the cover page of the
Official Statement. Subsequent to such initial offering, the Underwriters
reserve the right to change such initial offering price or yield as they deem
necessary in connection with the marketing of the Notes.
5. Delivery of Official Statement At least one week prior to the
Closing you shall deliver to the Underwriters three copies of the Official
Statement in form satisfactory to the Underwriters, and as promptly as
practical thereafter, such reasonable number of copies as the Underwriters
shall request.
6. Closing. At 10:00 a.m., Pacific time, on , or on
such later date as shall have been mutually agreed upon by you and us (the
"Closing "), you will deliver to us, at the office of Jones Hall Hill & White,
A Professional Law Corporation, in San Francisco, California, or at such other
place as we may mutually agree upon, the Notes in definitive form duly
executed, together with the other documents hereinafter mentioned; and we will
accept such delivery and pay the purchase price thereof by check or checks
payable in immediately available funds to the order of the Issuer. The Notes
shall be printed or lithographed on steel engraved or lithographed borders,
and shall be prepared and delivered as bearer instruments, in such
denominations as the Underwriters may request at least one business day prior
to the Closing. The Notes shall be available, at the office of the Director
of Finance of the Issuer, or at such other place as we may mutually agree
upon, for examination and packaging by the Underwriters at least 24 hours
prior to the Closing.
7. Representations, Warranties and Agreements of the Issuer. The Issuer
hereby represents, warrants and agrees with the Underwriters that:
(A) The Issuer is validly existing as a political subdivision of the
State of California (the "State "), with the power to issue the Notes pursuant
to the Act.
(B) (i) At or prior to the Closing, the Issuer will have taken all
action required to be taken by it to authorize the issuance and delivery of
the Notes; (ii) the Issuer has full legal right, power and authority to enter
into this Contract of Purchase and to adopt the Note Resolution and full legal
right, power and authority to issue and deliver the Notes to the Underwriters
and to perform its obligations under each such document or instrument, and to
carry out and effectuate the transactions contemplated by this Contract of
Purchase, the Official Statement and the Note Resolution; (iii) the execution
and delivery or adoption of, and the performance by the Issuer of the
obligations contained in, the Notes, the Note Resolution and this Contract of
Purchase have been duly authorized and such authorization shall be in full
force and effect at the time of the Closing; (iv) this Contract of Purchase
has been duly executed and delivered and constitutes a valid and legally
binding obligation of the Issuer; and (v) the Issuer has duly authorized the
consummation by it of all transactions contemplated by this Contract of
Purchase.
2
Purchase.
(C) No consent, approval, authorization, order, filing, registration,
qualification, election or referendum, of or by any person, organization,
court or governmental agency or public body whatsoever is required in
connection with the issuance, delivery or sale of the Notes or the
consummation of the other transactions effected or contemplated herein or
hereby, except for such actions as may be necessary to be taken to qualify the
Notes for offer and sale under the Blue Sky or other securities laws and
regulation of such states and jurisdictions of the United States as the
Underwriters may designate.
(D) The Issuer has complied in all respects with the Act.
(E) The issuance of the Notes, the execution, delivery and performance of
this Contract of Purchase, the Note Resolution and the Notes, and compliance
with the provisions hereof and thereof, do not conflict with or constitute on
the part of the Issuer a violation of, or default under, the constitution of
the State or any existing law, charter, ordinance, regulation, decree, order
or resolution and do not conflict with or result in a violation or breach of,
or constitute a default under, any agreement, indenture, mortgage, lease or
other instrument, to which the Issuer is a party or by which it is bound or to
which it is subject.
(F) As of the time of acceptance hereof, no action, suit, proceeding,
hearing or investigation is pending or (to the knowledge of the Issuer)
threatened against the Issuer: (1) in any way affecting the existence of the
Issuer or in any way challenging the respective powers of the several offices
or the titles of the officials of the Issuer to such offices; (ii) seeking to
restrain or enjoin the sale, issuance or delivery of any of the Notes, the
application of the proceeds of the sale of the Notes, or the collection of
revenues of the Issuer pledged or to be pledged or available to pay the
principal of and interest on the Notes, or the pledge thereof, or in any way
contesting or affecting the validity or enforceability of the Notes, this
Contract of Purchase or the Note Resolution, or contesting the powers of the
Issuer or its authority with respect to the Notes, the Note Resolution or this
Contract of Purchase; or (iii) in which a final adverse decision could (a)
materially adversely affect the operations of the Issuer or the consummation
of the transactions contemplated by this Contract of Purchase, or the Note
Resolution, (b) declare this Contract of Purchase to be invalid or
unenforceable in whole or in material part, or (c) adversely affect the
exemption of the interest paid on the Notes from Federal income and State
personal income taxation.
(G) Between the date hereof and the Closing, without the prior written
consent of the Underwriters, the Issuer will not have issued any bonds, notes
or other obligations for borrowed money except for such borrowings as may be
described in or contemplated by the Official Statement.
(H) The Issuer has not been notified of any listing or proposed listing
by the Internal Revenue Service to the effect that the Issuer is a bond issuer
whose arbitrage certificates may not be relied upon.
(I) Any certificate signed by an officer of the Issuer and delivered to
the Underwriters shall be deemed a representation and warranty by the Issuer
to the Underwriters as to the statements made therein but not of the person
signing the same.
8. Further Covenants of the Issuer. The Issuer further covenants and
agrees with the Underwriters that:
(A) It will furnish such information, execute such instruments, and take
such other action in cooperation with the Underwriters if and as they may
reasonably request in order (i) to qualify the Notes for offer and sale under
the Blue Sky or other securities laws and regulations of such states and
jurisdictions of the United States as the Underwriters may designate and (ii)
to determine the eligibility of the Notes for investment under the laws of
such states and other jurisdictions, and will use its best efforts to continue
such qualifications in effect so long as required for distribution of the
Notes.
(B) It will apply the proceeds from the sale of the Notes to the
Underwriters for the purposes specified in the Note Resolution.
(C) For a period of 90 days after the Closing or until such time (if
earlier) as the Underwriters shall no longer hold any of the Notes for sale,
it will (a) not adopt or consent to any amendment of or supplement to the
Official Statement to which, after having been furnished with a copy, the
Underwriters shall object in writing or which shall be disapproved by the
Underwriters and (b) if any event shall occur as a result of which it is
necessary, in the opinion of the Underwriters, to amend or supplement the
Official Statement in order to make the Official Statement not misleading in
light of the circumstances existing at the time it is delivered to a
purchaser, forthwith prepare and furnish (at the expense of the Issuer) a
reasonable number of copies of an amendment of or supplement to the Official
Statement (in form and substance satisfactory to the Underwriters) which will
amend or supplement the Official Statement so that it will not contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstance existing
at the time the Official Statement is delivered to a purchaser, not
misleading; provided, however, if such an event relating to or affecting the
Issuer shall occur on or prior to the Closing Date and if the occurrence of
such event shall, in the reasonable professional judgment of the Underwriters,
materially adversely affect the market price for the Notes, then the
Underwriters in their sole discretion shall have the right to terminate the
Underwriters' obligations hereunder by written notice to the Issuer, and the
Underwriters will be under no obligation to purchase and pay for the Notes.
For the purposes of this paragraph, Issuer will furnish such information with
respect to itself or to which it may have access as the Underwriters may from
time to time reasonably request.
9. Conditions of Closing. The Underwriters have entered into this
Contract of Purchase in reliance upon the representations and warranties of
the Issuer contained herein and the performance by the Issuer of its
obligations hereunder, both as of the date hereof and as of the date of
Closing. The Underwriters' obligations under the Contract of Purchase are and
shall be subject, at the option of the Underwriters, to the following further
conditions as of the Closing:
4
(A) The representations and warranties of the Issuer contained herein
shall be true, complete and correct in all material respects at the date
hereof and at and as of the Closing, as if made at and as of the closing, and
the statements made in all certificates and other documents delivered to the
Underwriters at the Closing pursuant hereto shall be true, complete and
correct in all material respects on the date of the Closing; and the Issuer
shall be in compliance with each of the agreements made by it in this Contract
of Purchase.
(B) At the time of the Closing, (i) the Official Statement, this Contract
of Purchase and the Note Resolution shall be in full force and effect and
shall not have been amended, modified or supplemented except as may have been
agreed to in writing by us; (ii) all actions under the Act which, in the
opinion of Bond Counsel, shall be necessary in connection with the
transactions contemplated hereby shall have been duly taken and shall be in
full force and effect; and (iii) the Issuer shall perform or have performed
all of its obligations required under or specified in or contemplated by the
Note Resolution, this Contract of Purchase or the Official Statement to be
performed by it at or prior to the Closing.
(C) No decision, ruling or finding shall have been entered by any court
or governmental authority since the date of this Contract of Purchase (and not
reversed on appeal or otherwise set aside) or, to the best knowledge of the
Issuer, pending or threatened which has any of the effects described in
clauses (i), (ii) or (iii) of Section 7(F) hereof or contesting in any way the
completeness or accuracy of the Official Statement.
(0) No order, decree or injunction of any court of competent
jurisdiction, nor any order, ruling or regulation of the Securities and
Exchange Commission, shall have been issued or made with the purpose or effect
of prohibiting the issuance, offering or sale of the Notes as contemplated
hereby, and no legislation shall have been enacted, or a bill favorably
reported for adoption, or a decision by a court established under Article III
of the Constitution of the United States rendered, or a ruling, regulation,
proposed regulation or official statement by or on behalf of the Securities
and Exchange Commission or other governmental agency having jurisdiction of
the subject matter made or issued, to the effect that the Notes or any
securities of the Issuer or of any similar body of the type contemplated
herein are not exempt from the registration, qualification or other
requirements of the Securities Act of 1933, as amended and as then in effect,
or of the Trust Indenture Act of 1939, as amended and as then in effect.
(E) At or prior to the date of the Closing, the Underwriters shall
receive three copies of the following documents in each case dated on and as
of the Closing Date and satisfactory in form and substance to the
Underwriters:
(1) an approving opinion of Bond Counsel, as to the Notes,
substantially in the form annexed hereto as Exhibit A, addressed to the Issuer
and the Underwriters;
(2) a certificate signed by an official of the Issuer acceptable to
the Underwriter to the effect that (i) the representations, agreements and
5
warranties of the Issuer herein are true and correct in all material respects
as of the date of the Closing; (ii) the Issuer has complied with all the terms
of the Note Resolution and this Purchase Contract to be complied with by the
Issuer prior to or concurrently with the Closing and such documents are in
full force and effect; and (iii) there is no action, suit, proceeding, inquiry
or investigation, at law or in equity, before or by any court or public body,
pending, or to his or her knowledge, threatened against the Issuer which has
any of the effects described in clauses (i), (ii) or (iii) of Section 7(F)
hereof or contesting in any way the completeness or accuracy of the Official
Statement (but in lieu of or in conjuction with such certification the
Underwriters may, in their sole discretion, accept certificates or opinions of
counsel to the Issuer or Bond Counsel, that in their opinion the issues raised
in any such pending or threatened litigation are without substance and that
the contentions of all plaintiffs therein are without merit);
(3) an arbitrage certificate of the Issuer, in form satisfactory to
Bond Counsel, signed by an appropriate official of the Issuer;
(4) evidence satisfactory to the Underwriters that the Notes shall
have been rated by Moody's Investors Service, Inc. and that such rating
has not been revoked or downgraded;
(5) a certificate, together with a fully executed copy of the Note
Resolution, of the City Clerk of the Issuer to the effect that:
Resolution and
(i) such copy is a true and correct copy of such Note
(ii) the Note Resolution was duly adopted and has not been
modified, amended, rescinded or revoked and is in full force and effect on the
date of Closing;
(6) a certificate of an appropriate official of the Issuer, dated
the date of Closing, to the effect that such official has reviewed the
Official Statement and on such basis certifies that the Official Statement
does not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading; and
(7) such additional legal opinions, certificates, proceedings,
instruments and other documents as the Underwriters or Bond Counsel may
reasonably request to evidence compliance by the Issuer with legal
requirements, the truth and accuracy, as of the time of Closing, of the
representations of the Issuer herein contained and the Official Statement and
the due performance or satisfaction by you at or prior to such time of all
agreements then to be performed and all conditions then to be satisfied by
you.
If the Issuer shall be unable to satisfy the conditions to the
Underwriters' obligations contained in the Contract of Purchase or if the
Underwriters' obligations shall be terminated for any reason permitted by this
Contract of Purchase, this Contract of Purchase may be cancelled by the
Underwriters at, or at any time prior to, the time of Closing. Notice of such
-6
cancellation shall be given to the Issuer in writing, or by telephone or
telegraph confirmed in writing. Notwithstanding any provision herein to the
contrary, the performance of any or all obligations of the Issuer hereunder
and the performance of any or all conditions contained herein for the benefit
of the Underwriters may be waived by the Underwriters in writing in their sole
discretion.
The Underwriters shall also have the right to cancel their obligations to
purchase the Notes, by written notice to the Issuer, if between the date
hereof and the Closing: (i) any event occurs or information becomes known,
which,in the reasonable professional judgment of the Underwriters, make untrue
any statement of a material fact set forth in the Official Statement or
results in an omission to state a material fact necessary to make the
statement made therein, in light of the circumstances under which they were
made, not misleading; (ii) there shall have occurred in the reasonable
professional judgment of the Underwriters, a material adverse change in the
affairs or economic conditions of, or economic conditions generally in, the
Issuer which change, in the reasonable professional judgment of the
Underwriters, materially adversely affects the market price for the Notes;
(iii) the market for the Notes or the market price of the Notes or the ability
of the Underwriters to enforce contracts for the sale of the Notes shall have
been materially and adversely affected, in the reasonable professional
judgment of the Underwriters, by (a) legislation enacted by the Congress of
the United States, or passed by either House of the Congress, or favorably
reported for passage to either House of Congress by any Committee of such
House to which such legislation has been referred for consideration, or by the
legislature of the State, or a decision rendered by a court of the United
States or the State or by the United States Tax Court, or a ruling, order, or
regulation (final or temporary) made or proposed by the Treasury Department of
the United States or the Internal Revenue Service or other Federal or State
authority, which would have the effect of changing, directly or indirectly,
the Federal income tax consequences or State tax consequences of interest on
obligations of the general character of the Notes in the hands of the holders
thereof, or (b) any new outbreak of hostilities or other national or
international calamity or crisis, the effect of such outbreak, calamity or
crisis on the financial markets of the United States being such as, in the
reasonable professional judgment of the Underwriters, would affect materially
and adversely the ability of the Underwriters to market the Notes, or (c) a
general suspension of trading on the New York Stock Exchange, or fixing of
minimum or maximum prices for trading or maximum ranges for prices for
securities on the New York Stock Exchange, whether by virtue of determination
by that Exchange or by order of the Securities and Exchange Commission or any
other governmental authority having jurisdiction, or (d) a general banking
moratorium declared by either Federal or State or New York authorities having
jurisdiction; or (iv) additional material restrictions not in force or being
enforced as of the date hereof shall have been imposed upon trading in
securities generally by any governmental authority or by any national
securities exchange which, in the reasonable professional judgment of the
Underwriters, materiallly adversely affect the market price for the Notes.
10. Conditions to Obligations of the Issuer. The performace by the
Issuer of its obligations is conditioned upon (i) the performance by the
Underwriters of their obligations hereunder; and (ii) receipt by the Issuer
7
and the Underwriters of opinions and certificates being delivered at the
Closing by persons and entities other than the Issuer.
11. Expenses (a) Whether or not the Underwriters accept delivery of and
pay for the Notes as set forth herein, the Underwriters shall be under no
obligation to pay, and the Issuer shall pay, any expenses incident to the
performance of the Issuer's obligations hereunder, including but not limited
to the following: (a) fees and disbursements of Bond Counsel; (b) any and all
expense in connection with hearings, proceedings and due issuance of the
Notes; (c) any and all costs of Note issuance such as: cost of the
preparation, printing, transportation, delivery and safekeeping of the Notes;
fees for credit rating(s); preparation by an outside vendor of an Issuer debt
statement; the cost of the printing and distribution of the preliminary and
final Official Statements; any costs or expenses incurred with any signature
company incident to signing the Notes; any paying agency fees and charges in
connection with receipt, custody or disbursement of Note proceeds and
repayment deposits; cost of printing, reproducing and binding documents; any
costs of computer calculations and verifications thereof; travel by Issuer
officials; any costs in connection with the Closing; any fees and expenses of
filing with state securities or Blue Sky commissions, including fees of
counsel; and (d) any expense of the Underwriters' travel outside the State if
undertaken at Issuer request. In each case where discretion may be possible
with respect to any such expense, at the specific request of the Issuer,
approval of such expense will be obtained in advance.
(b) Whether or not the Underwriters accept delivery of and pay
for the Notes as set forth herein, the Underwriters shall pay all costs and
disbursements incurred by them in connection with the transaction except those
costs and disbursements set forth in clause (a) above.
12. Notices. Any notice or other communication to be given under this
Contract of Purchase (other than the acceptance hereof as specified in the
first paragraph hereof) may be given by delivering the same in writing if to
the Issuer, to the Director of Finance of the Issuer, Alameda, California, or
if to the Underwriters, to Rauscher Pierce Refsnes, Inc., One California
Street, Suite 2630, San Francisco, California 94111.
13. Parties in Interest; Survival of Representations and Warranties.
This Contract of Purchase when accepted by the Issuer in writing as heretofore
specified shall constitute the entire agreement among the Issuer and the
Underwriters and is made solely for the benefit of the Issuer and the
Underwriters (including the successors or assigns of any Underwriter). No
other person shall acquire or have any right hereunder or by virtue hereof.
All representations, warranties and agreements of the Issuer in this Contract
of Purchase shall survive regardless of (a) any investigation or any statement
in respect thereof made by or on behalf of the Underwriters, (b) delivery of
and payment by the Underwriters for the Notes hereunder, and (c) any
termination of this Contract of Purchase.
14. Execution in Counterparts. This Contract of Purchase may be executed
in several counterparts each of which shall be regarded as an original and all
of which shall constitute one and the same document.
15. Applicable Law. This Contract of Purchase shall be interpreted,
governed and enforced in accordance with the laws of the State.
Very truly yours,
RAUSCHER PIERCE REFSNES, INC.
By
Leslie 0. Lynch, Jr.
Senior Vice President
The foregoing is hereby agreed to an accepted as of the written date first
above written:
CITY OF ALAMEDA
By
William J. Zenoni, Jr.
Director of Finance
I, the undersigned, hereby certify that the foregoing Resolution
was duly and regularly adopted and passed by the Council of the
City of Alameda in regular meeting assembled on the 18th day of September, 1984,
by the following vote to wit:
AYES: Councilmembers Gorman, Hanna, Lucas., Monsef, and President Diament - 5.
NOES: None.
ABSENT: None.
IN WITNESS WE{EREOF, L have hereunto set my hand and affixed the
official seal of said City this 19th day of September, 1984.
City Clerk of the y of Alameda