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DEALER MANAGER AGREEMENT
___ __, 2024
GOLDMAN SACHS & CO. LLC,
as Dealer Manager
200 West Street
New York, New York 10282
Ladies and Gentlemen:
On the date hereof (the “Launch Date”), the Anaheim Housing and Public Improvements Authority (the “Authority”) and the City of Anaheim (the “City”) are releasing an Invitation to Tender Bonds, dated ___ __, 2024 (including the appendices thereto, and as it may be amended or supplemented, the “Invitation”), the form of which is attached hereto as Annex A, whereby the Authority will offer to beneficial owners (the “holders”) of certain of its outstanding obligations, as more fully described in the Invitation (collectively, the “Target Bonds”) to purchase for cash the Target Bonds, all upon the terms and subject to the conditions set forth in the Invitation.
Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the [Preliminary Official Statement][Invitation].
The Tender Offer will be on the terms and subject to the conditions set forth in the following documents:
(1) The Invitation;
(2) The Notice of Purchase Prices expected to be dated and distributed on or about ________ __, 2024 in the form attached hereto as Appendix A to the Invitation (the “Notice of Purchase Prices”); and
(3) The Preliminary Official Statement of the Authority relating to the Authority’s Revenue Refunding Bonds, Series 2024-A (Electric Utility Distribution System Refunding) (the “2024-A Bonds”) (the “2024-A Bonds POS”); The Invitation, the Notice of Purchase Prices and the 2024-A Bonds POS (as such documents may be amended or supplemented), together with any EMMA notices and letters or other written communications to the Bondowners of the Target Bonds that the Authority may prepare or caused to be prepared or approved relating to the Invitation for distribution to the Bondowners of the Target Bonds are collectively referred to herein as the “Tender Documents.” The process of inviting offers to tender the Target Bonds for purchase pursuant to the Invitation, the process for holders of the Target Bonds to tender such Target Bonds for purchase by the Authority, the process for the Authority determining which tendered Target Bonds will be purchased, and the process of consummating the purchase of such tendered Target Bonds, all as described in the Tender Documents, is referred to herein as the “Tender Program”. 2 4896-0039-4793/024575-0059
1. Appointment of Dealer Manager
The Authority and the City hereby appoint Goldman Sachs & Co. LLC (“Goldman Sachs”) as dealer manager for the Tender Program (the “Dealer Manager”) and authorize the Dealer Manager to act on the City’s and Authority’s behalf in accordance with the terms of the Tender Documents.
In connection therewith, the Dealer Manager agrees, in accordance with its customary practice, to perform those services in connection with the Tender Program as are customarily performed by investment banks in connection with tender offers of like nature, including, without limitation, using reasonable efforts to solicit tenders of Target Bonds in the United States pursuant to the Tender Program and communicating generally in the United States regarding the Tender Program with brokers, dealers, commercial banks and trust companies and other holders of the Target Bonds.
The parties acknowledge and agree that the Dealer Manager may perform certain of its services contemplated hereby through its affiliates and any of its affiliates performing services hereunder shall be entitled to the benefits and be subject to the terms and conditions of this Agreement. The Authority and the City acknowledge that the Dealer Manager and its affiliates are engaged in a broad range of securities activities and financial services. In the ordinary course of the Dealer Manager’s business, the Dealer Manager or its affiliates (i) may at any time hold long or short positions, and may trade or otherwise effect transactions, for its own account or the accounts of its customers, in debt securities of the Authority and the City, including but not limited to, the Target Bonds, and (ii) may at any time be providing or arranging financing and other financial services to companies or entities that may be involved in a competing transaction.
The Authority and the City acknowledge that they, together with their municipal advisor, will make the final determination of the Target Bonds to be accepted for purchase pursuant to the Tender Program, and the terms applicable thereto.
The Authority and the City have approved and prepared, or will approve and prepare, the Tender Documents and are solely responsible for the Tender Documents (subject to the rights of the Dealer Manager to consent to any amendment, supplement or additional materials pursuant to Section 3(b) hereof), and authorize the Dealer Manager to use the Tender Documents in connection with the solicitation of offers to tender Target Bonds for purchase as described in the Tender Documents. The Authority and the City shall have sole authority for acceptance or rejection of any and all tenders of Target Bonds.
The Dealer Manager agrees to furnish no written material to holders of the Target Bonds in connection with the Tender Program other than the Tender Documents.
The Authority and the City acknowledge and agree that (i) the Dealer Manager is not acting as a municipal advisor within the meaning of Section 15B of Securities Exchange Act, as amended, (ii) the primary role of the Dealer Manager, as Dealer Manager, is to solicits offers for tender for purchase pursuant to the Tender Documents, in an arm’s-length commercial transaction among the Authority, the City and the Dealer Manager, and the Dealer Manager has financial and other interests that differ from those of the Authority and the City; (iii) the Dealer 3 4896-0039-4793/024575-0059
Manager is not acting as a municipal advisor, financial advisor or fiduciary of the Authority or the City and the Dealer Manager has not assumed an advisory or fiduciary responsibility in favor of the Authority or the City with respect to the Tender Program or the discussions, undertakings and procedures leading thereto (irrespective of whether the Dealer Manager has provided other services or is currently providing other services to the Authority or the City on other matters), (iv) the Dealer Manager has no obligation to the Authority and the City with respect to the Tender Program except the obligations expressly set forth in this Agreement or as otherwise imposed by law, and (v) the Authority and the City have consulted their own legal, municipal, financial and other advisors to the extent they have deemed appropriate.
The Authority and the City authorize the Dealer Manager to communicate regarding the Tender Program with The Depository Trust Company (“DTC”), Globic Advisors, as Information Agent (the “Information Agent”), and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”).
2. Delivery of Tender Documents
The City shall cause the Information Agent to deliver to each registered holder of any Target Bonds, to each participant in DTC appearing in the most recently available DTC Target Bonds position listing as a holder of the Target Bonds and to each known holder, as soon as practicable, by electronic delivery, by overnight courier or by another means of expedited delivery (if deemed adequate) copies of the Tender Documents. Thereafter, to the extent practicable until the expiration of the Tender Program, the City shall direct the Information Agent to cause copies of such materials to be sent to each person who becomes a Bondowner of the Target Bonds by electronic delivery, by overnight courier or by another means of expedited delivery.
The Dealer Manager shall assist the Authority and the City in disseminating the Tender Documents but will not have any obligation to cause copies of the Tender Documents to be transmitted generally to the Bondowners of the Target Bonds.
3. Solicitation of Tenders
(a) The Dealer Manager agrees to use its reasonable efforts to solicit tenders of the Target Bonds for purchase pursuant to the Tender Documents and in accordance with Section 1 hereof. Neither the Dealer Manager nor any of its affiliates, nor any partners, directors, officers, agents, employees or controlling persons (if any) of the Dealer Manager nor any of its affiliates (the Dealer Manager and any of its affiliates, and any partners, directors, officers, agents, employees or controlling persons (if any) of the Dealer Manager or any of the Dealer Manager’s affiliates being collectively hereinafter referred to as the “Dealer Manager Parties”), shall have any liability in tort, contract or otherwise to the Authority or the City or any other person for any act or omission on the part of any Target Bonds broker or dealer (other than any related Dealer Manager Party), or commercial bank or trust company that solicits tenders, and no Dealer Manager Party shall have any liability to the Authority or the City or any person asserting claims on behalf of or in right of the Authority or the City in connection with or as a result of either its engagement or any matter governed by this Agreement except to the extent that such 4 4896-0039-4793/024575-0059
liability is finally judicially determined by a court of competent jurisdiction to have resulted from such Dealer Manager Party’s own gross negligence, willful misconduct or bad faith in performing the services that are the subject of this Agreement. In soliciting tenders, no Target Bonds broker or dealer (other than the Dealer Manager), commercial bank or trust company shall be deemed to act as the agent of the Authority, the City or the Dealer Manager. The Dealer Manager shall not be deemed the agent of any Target Bonds broker or dealer or of any commercial bank or trust company. (b) The Authority and the City agree to furnish to the Dealer Manager as many copies as the Dealer Manager may reasonably request of the Tender Documents in final form for use by the Dealer Manager in connection with the Tender Program. The Authority and the City shall not amend or supplement the Tender Documents, or prepare or approve any additional material for use in connection with the Tender Program, without the Dealer Manager’s prior written consent, which consent shall not be unreasonably withheld, and if such consent is withheld for any reason, the Authority and the City may terminate this Agreement.
(c) Except for the 2024-A Bonds POS and references to the Tender Program and the Dealer Manager in connection with submissions to the City and the Authority and in the transcript for the 2024-A Bonds, the Authority and the City will not use or publish any material in connection with the Tender Program that is reasonably expected to be viewed by potential investors, or refer to the Dealer Manager in any such material, without the Dealer Manager’s consent, which consent shall not be unreasonably withheld. (d) The City agrees to furnish or cause to be furnished to the Dealer Manager, to the extent the same is available to the City, lists showing the names and addresses of, and principal amount of the Target Bonds held by, the Bondowners of the Target Bonds as of a recent date, and shall use commercially reasonable efforts to cause the Dealer Manager to be advised from day to day during the period of the Tender Program as to any transfers of the Bondowners of the Target Bonds. The Dealer Manager agrees to use such information only in connection with the Tender Program and not to furnish such information to any other person except in connection with the Tender Program. (e) The City shall use commercially reasonable efforts to cause the Information Agent to orally inform the Dealer Manager during each business day during the Tender Program (to be followed on a daily basis by written confirmation) as to the principal amount of the Target Bonds which have been tendered pursuant to the Tender Program during the time period since its previous daily report to the Dealer Manager under this provision.
(f) The Authority and the City will advise the Dealer Manager promptly, after either receives notice, or otherwise becomes aware, of (i) the occurrence of any event that could reasonably be expected to cause the Authority or the City to withdraw, rescind or terminate the Tender Program or would permit the Authority or the City to exercise any right not to purchase Target Bonds tendered pursuant to the Tender Program, (ii) the occurrence of any event, or the discovery of any fact, the occurrence or existence of which would require the making of any change in any of the Tender Documents then 5 4896-0039-4793/024575-0059
being used or would cause any representation or warranty contained in this Agreement to be untrue or inaccurate in any material respect, (iii) any proposal by the Authority or the City or requirement to make, amend or supplement any Tender Documents or any filing in connection with the Tender Program pursuant to the Securities Exchange Act of 1934 (the “1934 Act”) or any applicable law, rule or regulation, (iv) any material developments in connection with the Tender Program, (v) the issuance by a federal or state agency of competent jurisdiction and authority of any comment or order or the taking of any other action concerning the Tender Program (and, if in writing, the Authority or the City will furnish the Dealer Manager with a copy thereof), (vi) the commencement or threat of commencement of any litigation or administrative action or claim with respect to the Tender Program; and (vii) any other information relating to the Tender Program, the Tender Documents or this Agreement that the Dealer Manager may from time to time reasonably request.
4. Compensation and Expenses
(a) The City shall pay to Goldman Sachs as compensation for its services as Dealer Manager, a fee of $____ for each $1,000 principal amount of the Target Bonds purchased pursuant to the Tender Program. Such fees shall be payable concurrently with the payment for the Target Bonds under the Tender Program and shall be paid from the proceeds of the 2024-A Bonds.
(b) Whether or not any Target Bonds are tendered for purchase pursuant to the Tender Program, the City shall pay all reasonable expenses of the preparation, printing, mailing and publishing of the Tender Documents, all reasonable fees, if any, payable to Target Bonds dealers (including the Dealer Manager), commercial banks, trust companies and nominees as reimbursement of their customary mailing and handling expenses incurred in forwarding the Tender Documents to their customers, all fees and expenses of DTC, all fees and expenses of the Information Agent, all advertising charges, and all other expenses incurred by the Dealer Manager in connection with the Tender Program, including, without limitation, the reasonable fees and the disbursements of the Dealer Manager’s counsel, Stradling Carlson Yocca & Rauth LLP. The Authority acknowledges and agrees that such fees and expenses may be payable upon estimates of such fees and expenses.
5. Representations and Warranties by the Authority.
The Authority represents and warrants to, and agrees with the Dealer Manager that, as of the date hereof and through and including the Settlement Date (as defined in the Invitation):
(a) The Authority is a joint powers agency duly organized and validly existing under the laws of the State of California.
(b) The Authority has the requisite power and authority and has duly taken all necessary action to authorize the making and consummation of the Tender Program (including the issuance and delivery of the 2024-A Bonds or other provisions for the purchase of the Target Bonds), and this Agreement has been duly executed and delivered 6 4896-0039-4793/024575-0059
by, and constitutes a valid and binding agreement of, the Authority, enforceable in accordance with its terms (except as the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium and other laws affecting relief of debtors, creditors’ rights or remedies and to general principles of equity). (c) When issued, the Tender Documents comply, and as amended or supplemented, if amended or supplemented will comply, in all material respects with all applicable requirements of the federal securities laws; and the Tender Documents do not and (as amended or supplemented, if amended or supplemented) will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading (but in each case excluding information in the 2024-A Bonds POS under the caption “UNDERWRITING” and information concerning DTC, Cede & Co., and the book-entry system (collectively, the “Excluded Information”), as to which no representation is made). In addition, if any event occurs as a result of which it shall be necessary to amend or supplement any Tender Documents in order to correct any untrue statement of a material fact contained therein or omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Authority shall, promptly upon becoming aware of any such event, advise the Dealer Manager of such event and, as promptly as practicable under the circumstances, prepare and furnish copies of such amendments or supplements of any such Tender Documents to the Dealer Manager, so that the statements in such Tender Documents, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Authority agrees to file or cause to be filed with EMMA any amendments or supplements of any Tender Documents.
(d) The making and consummation of the Tender Program (including the issuance of the 2024-A Bonds or other provisions for the purchase of the Target Bonds), the execution, delivery and performance by the Authority of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) conflict with, or result in the acceleration of any obligation under or in a breach of, or constitute a default under, any of the provisions of any ordinance, indenture, agreement or undertaking to which the Authority is a party or by which it is bound or to which any of its property or assets is subject, or (ii) contravene any federal, state or local law, rule or regulation applicable to the Authority, or any order applicable to the Authority of any court or of any other governmental agency or instrumentality having jurisdiction over it or any of its property.
(e) The Authority has taken all necessary action to authorize the execution, delivery, and performance by the Authority of the Tender Documents, and the execution, delivery, and performance by the Authority of the Tender Program has been duly authorized. No additional consent, approval, authorization or order of, or registration, qualification or filing with, any court or regulatory agency or other governmental agency or instrumentality is required in connection with the making and consummation of the 7 4896-0039-4793/024575-0059
Tender Program (including the issuance of the 2024-A Bonds or other provisions for the purchase of the Target Bonds).
(f) Except as described in the Tender Documents, no litigation or other proceeding before or by any court or agency or other administrative body (either state or federal) is pending against the Authority or, to the best knowledge of the Authority, threatened against it, in any way restraining or enjoining, or threatening or seeking to restrain or enjoin, the making and consummation of the Tender Program or (A) in any way questioning or affecting: (i) the proceedings under which the Tender Program is to be made and consummated, (ii) the validity or enforceability of any provision of the Tender Documents, (iii) the accuracy, completeness or fairness of the Tender Documents, (iv) the legal existence of the Authority or its right to conduct its operations as presently conducted, or (v) the title of its members or officers to their respective offices in such manner as to adversely affect the ability of the Authority to authorize the making and consummation of the Tender Program or to consummate any of the transactions to which it is or is to be a party as contemplated by the Tender Documents, or (B) which, if decided adversely to the Authority, would have a material adverse effect on the financial condition or operations of the Authority.
(g) The Authority expects to have the proceeds of the 2024-A Bonds, the delivery of which is a condition of its purchase of the Target Bonds pursuant to the Tender Program, available for payment of the purchase price of the Target Bonds which the Authority elects to purchase, and is authorized to purchase such Target Bonds which it elects to purchase.
(h) The Authority agrees to purchase, in accordance with the terms and subject to the conditions of the Tender Documents, the Target Bonds it elects to purchase, and to pay, from the proceeds of the 2024-A Bonds, all related fees and expenses as agreed to by the parties. The Authority agrees to cancel or cause to be cancelled the Target Bonds it purchases pursuant to the Tender Program. (i) The Authority has engaged the Information Agent to make appropriate arrangements with DTC to allow for the book-entry movement of tendered Target Bonds as described in the Tender Documents.
(j) In connection with the Tender Program, the Authority has complied, and will continue to comply, in all material respects with the applicable requirements of the federal securities laws.
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6. Representations and Warranties by the City.
The City represents and warrants to, and agrees with the Dealer Manager that, as of the date hereof and through and including the Settlement Date (as defined in the Invitation):
(a) The City is a charter city duly organized and validly existing under the laws of the State of California.
(b) The City has the requisite power and authority and has duly taken all necessary action to authorize the making and consummation of the Tender Program (including the issuance and delivery of the 2024-A Bonds or other provisions for the purchase of the Target Bonds), and this Agreement has been duly executed and delivered by, and constitutes a valid and binding agreement of, the City, enforceable in accordance with its terms (except as the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium and other laws affecting relief of debtors, creditors’ rights or remedies and to general principles of equity). (c) When issued, the Tender Documents comply, and as amended or supplemented, if amended or supplemented will comply, in all material respects with all applicable requirements of the federal securities laws; and the Tender Documents do not and (as amended or supplemented, if amended or supplemented) will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading (but in each case excluding information in the 2024-A Bonds POS under the caption “UNDERWRITING” and information concerning DTC, Cede & Co., and the book-entry system (collectively, the “Excluded Information”), as to which no representation is made). In addition, if any event occurs as a result of which it shall be necessary to amend or supplement any Tender Documents in order to correct any untrue statement of a material fact contained therein or omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the City shall, promptly upon becoming aware of any such event, advise the Dealer Manager of such event and, as promptly as practicable under the circumstances, prepare and furnish copies of such amendments or supplements of any such Tender Documents to the Dealer Manager, so that the statements in such Tender Documents, as so amended or supplemented, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The City agrees to file or cause to be filed with EMMA any amendments or supplements of any Tender Documents.
(d) The making and consummation of the Tender Program (including the issuance of the 2024-A Bonds or other provisions for the purchase of the Target Bonds), the execution, delivery and performance by the City of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) conflict with, or result in the acceleration of any obligation under or in a breach of, or constitute a default under, any of the provisions of any ordinance, indenture, agreement or 9 4896-0039-4793/024575-0059
undertaking to which the City is a party or by which it is bound or to which any of its property or assets is subject, or (ii) contravene any federal, state or local law, rule or regulation applicable to the City, or any order applicable to the City of any court or of any other governmental agency or instrumentality having jurisdiction over it or any of its property.
(e) The City has taken all necessary action to authorize the execution, delivery, and performance by the City of the Tender Documents, and the execution, delivery, and performance by the City of the Tender Program has been duly authorized.
No additional consent, approval, authorization or order of, or registration, qualification or filing with, any court or regulatory agency or other governmental agency or instrumentality is required in connection with the making and consummation of the Tender Program (including the issuance of the 2024-A Bonds or other provisions for the purchase of the Target Bonds).
(f) Except as described in the Tender Documents, no litigation or other proceeding before or by any court or agency or other administrative body (either state or federal) is pending against the City or, to the best knowledge of the City, threatened against it, in any way restraining or enjoining, or threatening or seeking to restrain or enjoin, the making and consummation of the Tender Program or (A) in any way questioning or affecting: (i) the proceedings under which the Tender Program is to be made and consummated, (ii) the validity or enforceability of any provision of the Tender Documents, (iii) the accuracy, completeness or fairness of the Tender Documents, (iv) the legal existence of the City or its right to conduct its operations as presently conducted, or (v) the title of its members or officers to their respective offices in such manner as to adversely affect the ability of the City to authorize the making and consummation of the Tender Program or to consummate any of the transactions to which it is or is to be a party as contemplated by the Tender Documents, or (B) which, if decided adversely to the City, would have a material adverse effect on the financial condition or operations of the City.
(g) The City expects to have the proceeds of the 2024-A Bonds, the delivery of which is a condition of its purchase of the Target Bonds pursuant to the Tender Program, available for payment of the purchase price of the Target Bonds which the Authority and the City elect to purchase, and is authorized to purchase such Target Bonds which they elect to purchase.
(h) The City agrees to purchase, in accordance with the terms and subject to the conditions of the Tender Documents, the Target Bonds it elects to purchase, and to pay, from the proceeds of the 2024-A Bonds, all related fees and expenses as agreed to by the parties. The City agrees to cancel or cause to be cancelled the Target Bonds it purchases pursuant to the Tender Program.
(i) The City has engaged the Information Agent to make appropriate arrangements with DTC to allow for the book-entry movement of tendered Target Bonds as described in the Tender Documents.
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In connection with the Tender Program, the City has complied, and will continue to comply, in all material respects with the applicable requirements of the federal securities laws.
7. Representations and Warranties of the Dealer Manager. The Dealer Manager hereby represents and warrants to, and agrees with, the Authority and the City that, as of the date hereof and through and including the Settlement Date (as defined in the Invitation):
(a) This Agreement has been duly authorized, executed and delivered by the Dealer Manager and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization and similar laws affecting creditors’ rights and by general principles of equity.
(b) The execution, delivery and performance of this Agreement by the Dealer Manager does not and will not violate, in any material respect, any law, regulation or rule customarily applicable to the Dealer Manager when acting in such capacity for transactions of this type.
(c) The Dealer Manager warrants and confirms to the Authority and the City that: (i) it is duly registered under the 1934 Act as a broker/dealer or municipal bonds dealer and has duly paid the fee prescribed by MSRB Rule A-12 or is exempt from such requirements, and (ii) it has complied with the dealer registration requirements, if any, of the various jurisdictions in which it respectively acts as Dealer Manager for the Target Bonds.
(d) The Dealer Manager shall comply with applicable federal securities laws, including MSRB Rule G-17, in connection with its provision of services hereunder.
8. Conditions of Obligation. The Dealer Manager’s obligation to act as a dealer manager hereunder shall at all times be subject, in the Dealer Manager’s discretion, to the conditions that:
(a) All representations, warranties and other statements of the Authority and the City contained herein are now, and at all times during the Tender Program, will be, true and correct.
(b) The Authority and the City at all times during the Tender Program shall have performed all of their obligations hereunder required to have been performed. (c) Norton Rose Fulbright US LLP (“Bond Counsel”), shall have furnished to the Dealer Manager, concurrently with the execution of this Agreement, its opinion, dated the date of the Invitation and in the form attached hereto as Annex B (i) stating in substance that this Agreement constitutes a valid and binding agreement of the Authority and the City, enforceable in accordance with its terms, subject to such exceptions and qualifications as may be acceptable to the Dealer Manager; (ii) relating to the statements contained in the Invitation under the caption “Certain Federal Income Tax Consequences,” (iii) providing negative assurance on the subsection “Target Bonds Not Tendered for Purchase” under the “Additional Considerations” section of the Invitation, 11 4896-0039-4793/024575-0059
and (iv) the actions of the Authority and the City in connection with the Tender Program as specifically set forth in the Tender Documents, are exempt from the provisions of Section 14(d) of the Securities Exchange Act of 1934, as amended, and Regulation 14D and Regulation 14E of the Securities and Exchange Commission and the related rules promulgated thereunder.
(d) Stradling Yocca Carlson & Rauth LLP, shall have furnished to the Dealer Manager, concurrently with the execution of this Agreement, an opinion in form and substance satisfactory to the Dealer Manager providing that the Invitation, and the actions of the Authority and the City in connection with the Tender Program as specifically set forth in the Tender Documents, are exempt from the provisions of Section 14(d) of the Securities Exchange Act of 1934, as amended, and Regulation 14D and Regulation 14E of the Securities and Exchange Commission and the related rules promulgated thereunder.
(e) No stop order, restraining order or injunction has been issued by the SEC or any court of competent jurisdiction, and no litigation shall have been commenced or threatened before the SEC or any court, with respect to (i) the making or the consummation of the Tender Program, (ii) the execution, delivery or performance by the Authority or the City of this Agreement or (iii) any of the transactions in connection with, or contemplated by, the Tender Documents which the Dealer Manager or its legal counsel in good faith believes makes it impossible for the Dealer Manager to continue to render services pursuant hereto and it shall not have otherwise become unlawful under any law or regulation, federal, state or local, for the Dealer Manager so to act, or continue so to act, as the case may be.
(f) At the Closing Date, there shall have been delivered to the Dealer Manager, on behalf of the Authority, a certificate of an authorized officer of the Authority, dated the Closing Date, and stating that the representations and warranties set forth herein are true and accurate as if made on such Closing Date. (g) At the Closing Date, there shall have been delivered to the Dealer Manager, on behalf of the City, a certificate of an authorized officer of the City, dated the Closing Date, and stating that the representations and warranties set forth herein are true and accurate as if made on such Closing Date.
9. Survival of Certain Provisions
The agreements contained in Section 3(a) and Section 4 hereof, the representations and warranties of the Authority set forth in Section 5 hereof, the representations and warranties of the Dealer Manager set forth in Section 6 hereof, and the obligations of Authority set forth in Section 10(n) shall survive any termination or cancellation of this Agreement, any completion of the engagement as provided by this Agreement.
10. Miscellaneous
(a) This Agreement is made solely for the benefit of the Authority, the City and the Dealer Manager and any director, officer, agent, employee, controlling person or 12 4896-0039-4793/024575-0059
affiliate thereof, and their respective successors, assigns, and legal representatives, and no other person shall acquire or have any right under or by virtue of this Agreement. (b) If any term, provision, covenant or restriction contained in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable or against public policy, the remainder of the terms, provisions, covenants, and restrictions contained herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The Authority, the City and the Dealer Manager shall endeavor in good faith negotiations to replace the invalid, void or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid, void or unenforceable provisions.
(c) Any notice or other communication to be given under this Agreement may given by delivering the same in writing (i) to the Authority, 200 South Anaheim Boulevard, Anaheim, California 92805, Attention: Secretary, (ii) to the City, 200 South Anaheim Boulevard, Anaheim, California 92805, Attention: Public Utilities, Assistant General Manager — Finance and Energy Resources; and (ii) to the Dealer Manager at:
Goldman Sachs & Co. LLC, 555 California Street, Floor 45, San Francisco, CA 94104, Attention: Joseph Natoli.
Any notice or other communication provided for herein may be mailed to the parties at the respective address set forth above, unless any party notifies another party in writing of a different address, or may also be sent by any of the following means:
(a) personal service; (b) electronic communications, whether by telex, telegram, facsimile (fax) or e-mail; (c) overnight courier or (d) registered or certified first class mail, return receipt requested.
(d) This Agreement contains the entire understanding of the parties with respect to the matters hereof, and supersedes any prior agreements with respect hereto, and may not be modified or amended except in writing executed by the parties hereto.
This Agreement may be executed in any number of separate counterparts, each of which shall be an original, but all such counterparts shall together constitute one and the same agreement. The parties further agree that the transaction consisting of this Agreement may be conducted by electronic means. Each party agrees, and acknowledges that it is such party’s intent, that if such party signs this Agreement using an electronic or digital signature, it is signing, adopting, and accepting this Agreement and that signing this Agreement using an electronic or digital signature is the legal equivalent of having placed its handwritten signature on this Agreement on paper. Each party acknowledges that it is being provided with an electronic or paper copy of this Agreement in a usable format. (e) This Agreement is solely for the benefit of the Authority, the City and the Dealer Manager, and their respective successors, heirs and assigns, and no other person shall acquire or have any rights under or by virtue of this Agreement. (f) The Dealer Manager may share any information or matters relating to the Authority, the Invitation and the transactions contemplated hereby with its affiliates and 13 4896-0039-4793/024575-0059
such affiliates may likewise share information relating to the Authority, the City, the Invitation and the transactions contemplated hereby with the Dealer Manager. (g) This Agreement shall terminate upon the earlier of (i) the tenth day following the settlement, withdrawal or termination of the Tender Program, (ii) notice by the Authority, the City or the Dealer Manager at any time, with or without cause, effective upon receipt by the other party of written notice to that effect, or (iii) 90 days from the date first written above, it being understood that as set forth in Section 9, certain provisions of this Agreement shall survive the termination or cancellation of this Agreement.
(h) The Dealer Manager does not provide accounting, tax or legal advice. The Authority and the City are authorized, subject to applicable law, to disclose any and all aspects of this potential transaction that are necessary to support any U.S. federal income tax benefits expected to be claimed with respect to such transaction, without the Dealer Manager imposing any limitation of any kind.
(i) [[As of the date of this Agreement, to the best of its knowledge, the Dealer Manager does not hold any of the Target Bonds. One or more of affiliates of the Dealer Manager may own or hold the Target Bonds for its own account or the account of its customers. The Dealer Manager has not engaged any affiliates in any manner related to the Tender Program. To the extent they hold any of the Target Bonds, these affiliates would be engaged like any other investor or holder of the Target Bonds.]] (j) This Agreement shall be governed by, and construed in accordance with, the laws of the State of California.
(k) Each party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise against the another party in any way relating to this agreement or any other related document or the transactions relating hereto or thereto, in any forum other than the courts of the State of California sitting in Los Angeles County and of the United States District Court of the Central District of California, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such California state court or, to the fullest extent permitted by applicable law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. (l) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this agreement or any other related document in any court referred to in Section 10(k) of this Agreement. Each of the parties hereto hereby irrevocably waives, to the fullest extent 14 4896-0039-4793/024575-0059
permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(m) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OTHER RELATED DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER RELATED DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
(n) In consideration of the engagement hereunder, the Authority and the City shall indemnify and hold the Dealer Manager harmless to the extent set forth in Annex A hereto, which provisions are incorporated by reference herein and constitute a part hereof.
Annex A hereto is an integral part of this Agreement and shall survive any termination, expiration or cancellation of this Agreement.
(o) This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which, taken together, will constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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Please sign and return to us a duplicate of this letter, whereupon it will become a binding agreement.
Sincerely,
ANAHEIM HOUSING AND PUBLIC
IMPROVEMENTS AUTHORITY
By: ________________________________
Authorized Officer
CITY OF ANAHEIM, CALIFORNIA
By: ________________________________
Public Utilities Assistant General
Manager – Finance and Energy
Resources
Acknowledged and Agreed to:
Dealer Manager: GOLDMAN SACHS & CO. LLC
By:
Authorized Officer
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ANNEX A
Indemnification
The Authority and the City (collectively, the “Authority/City Indemnifying Party”), agree to indemnify and hold harmless to the fullest extent permitted by law the Dealer Manager, and any member, trustee, officer, official, agent or employee of the Dealer Manager, and each person, if any, who controls the Dealer Manager within the meaning of Section 15 of the Securities Act of 1933, as amended (collectively the “Dealer Manager Indemnified Party”), against any and all losses, claims, damages, liabilities or expenses whatsoever caused by any untrue statement or misleading statement or allegedly misleading statement of a material fact contained in the Preliminary Official Statement and the Official Statement (other than with respect to the information contained under the heading “UNDERWRITING” and information concerning DTC, Cede & Co. and the book-entry system) or caused by any omission or alleged omission from the Preliminary Official Statement and the Official Statement of any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. In case any action shall be brought against one or more of the Dealer Manager Indemnified Party based upon the Preliminary Official Statement and the Official Statement and in respect of which indemnity may be sought against the Authority/City Indemnifying Party, the Dealer Manager Indemnified Party shall promptly notify the Authority/City Indemnifying Party, in writing, and the Authority Indemnifying Party, shall promptly assume the defense thereof, including the employment of counsel, the payment of all expenses and the right to negotiate and consent to settlement. Any one or more of the Dealer Manager Indemnified Party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Dealer Manager Indemnified Party unless employment of such counsel has been specifically authorized by the Authority/City Indemnifying Party. The Authority/City Indemnifying Party shall not be liable for any settlement of any such action effected without its consent by any of the Dealer Manager Indemnified Party, but if settled with the consent of the Authority/City Indemnifying Party or if there be a final judgment for the plaintiff in any such action against the Authority Indemnifying Party or any of the Dealer Manager Indemnified Party, with or without the consent of the Authority Indemnifying Party, the Authority/City Indemnifying Party agree to indemnify and hold harmless, to the extent permitted by law, the Dealer Manager Indemnified Party to the extent provided herein.
The Dealer Manager (the “Dealer Manager Indemnifying Party”) shall indemnify and hold harmless, to the extent permitted by law, the Authority and its directors, officers, members, employees and agents and each person who controls the Authority within the meaning of Section 15 of the 1933 Act (any such person being therein sometimes called an “Authority/City Indemnified Party”), against any and all losses, claims, damages or liabilities, joint or several, to which such Authority Indemnified Party may become subject under any statute or at law or in equity or otherwise, and shall promptly reimburse any such Authority/City Indemnified Party for any reasonable legal or other expenses incurred by it in connection with investigating any claims against it and defending any actions, but only to the extent that such losses, claims, damages, liabilities or actions arise out of or are based upon any untrue statement of a material fact contained in (i) the Preliminary Official Statement or the Official Statement under the heading A-2
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“UNDERWRITING” and information concerning DTC, Cede & Co. and the book-entry system and (ii) the Invitation under the heading “DEALER MANAGER” or any amendment or supplement of either thereof, or the omission to state therein a material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading. This indemnity agreement shall not be construed as a limitation on any other liability which the Dealer Manager may otherwise have to any Authority/City Indemnified Party, provided that in no event shall the Dealer Manager be obligated for double indemnification.
For purposes of this paragraph and the immediately succeeding paragraph, an “Indemnified Party” means an Authority/City Indemnified Party or a Dealer Manager Indemnified Party as the context dictates and an “Indemnifying Party” means a Authority/City Indemnifying Party or a Dealer Manager Indemnifying Party as the context dictates. An Indemnified Party shall, promptly after the receipt of notice of the commencement of any action against such Indemnified Party in respect of which indemnification may be sought against an Indemnifying Party, notify the Indemnifying Party in writing of the commencement thereof, but the omission to notify the Indemnifying Party of any such action shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party otherwise than under the indemnity agreement contained herein. In case any such action shall be brought against an Indemnified Party and such Indemnified Party shall notify the Indemnifying Party of the commencement thereof, the Indemnifying Party may, or if so requested by such Indemnified Party shall, participate therein or assume the defense thereof, with counsel satisfactory to such Indemnified Party, and after notice from the Indemnifying Party to such Indemnified Party of an election so to assume the defense thereof, the Indemnifying Party will not be liable to such Indemnified Party under this paragraph for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. If the Indemnifying Party shall not have employed counsel to have charge of the defense of any such action or if the Indemnified Party shall have reasonably concluded that there may be defenses available to it or them that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to direct the defense of such action on behalf of such Indemnified Party), such Indemnified Party shall have the right to retain legal counsel of its own choosing and reasonable legal and other expenses incurred by such Indemnified Party shall be borne by the Indemnifying Party.
An Indemnifying Party shall not be liable for any settlement of any such action effected without its consent by any Indemnified Party, which consent shall not be unreasonably withheld, but if settled with the consent of the Indemnifying Party or if there be a final judgment for the plaintiff in any such action against the Indemnifying Party or any Indemnified Party, with or without the consent of the Indemnifying Party, the Indemnifying Party agrees to indemnify and hold harmless such Indemnified Party to the extent provided herein.
In order to provide for just and equitable contribution in circumstances in which indemnification hereunder is for any reason held to be unavailable from the Authority, the City or the Dealer Manager, to the extent permitted by law, the Authority, the City and the Dealer Manager shall contribute to the aggregate losses, claims, damages and liabilities (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, to which the Authority, the City and the Dealer Manager may be subject) in such proportion so that the Dealer Manager is A-3
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responsible for that portion represented by the percentage that the Dealer Manager’s fees set forth in the Tender Documents bears to total amount paid by the Authority and the City for the Target Bonds accepted for purchase and the Authority are responsible for the balance; provided, however, that no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this paragraph, each person, if any, who controls the Dealer Manager within the meaning of the 1933 Act shall have the same rights to contribution as the Dealer Manager. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this paragraph, notify such party or parties from whom contribution may be sought, but the omission so to notify shall not relieve that party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph. No party shall be liable for contribution with respect to any action or claim settled without its consent.
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ANNEX B
FORM OF OPINION FROM BOND COUNSEL
___ __, 20242
Goldman Sachs & Co. LLC, as Dealer Manager
Los Angeles, California
Re: Invitation to Tender Bonds Made by the
Anaheim Housing and Public Improvements Authority and the City of Anaheim dated ___ __, 2024
Ladies and Gentlemen:
This opinion is addressed to you, Goldman Sachs & Co. LLC, as dealer manager (the “Dealer Manager”) in connection with the Invitation to Tender Bonds Made by the Anaheim Housing and Public Improvements Authority (the “Authority”) and the City of Anaheim (the “City”), dated ___ __, 2024 (the “Invitation”), upon the terms and subject to the conditions set forth in the Dealer Manager Agreement, dated ___ __, 2024 (the “Dealer Manager Agreement”), among the Authority, the City and the Dealer Manager. This opinion is delivered pursuant to Section 7(c) of the Dealer Manager Agreement.
We are acting as Bond Counsel in connection with the Invitation and the proposed issuance by the Authority of its Revenue Refunding Bonds, Series 2024-A (Electric Utility Distribution System Refunding) (the “2024-A Bonds”). Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Dealer Manager Agreement.
The opinion expressed herein are based on an analysis of existing statutes, regulations, rulings and court decisions and cover certain matters not directly addressed by such authorities.
We have relied as to factual matters on the representations and warranties contained in the Dealer Manager Agreement and the information contained in the Invitation. We have also examined such certificates of officers of the Authority and the City and others as we have considered necessary for the purposes of this opinion.
Based on and subject to the foregoing, and in reliance thereon, as of the date hereof, we are of the opinion that:
1. The Dealer Manager Agreement has been duly authorized, executed and delivered by the Authority and the City, and assuming due authorization, execution and delivery by the Dealer Manager, constitutes a legal, valid and binding agreement of the Authority and the City.
2. The statements contained in section 15 of the Invitation under the caption “Certain Federal Income Tax Consequences,” insofar as the statements contained under B-2
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such caption purport to summarize certain provisions of federal tax law, are accurate in all material respects.
3. On the basis of the information made available to the us in the course of the preparation of the Invitation (but without having undertaken to determine or verify independently, or assuming any responsibility for, the accuracy, completeness or fairness of any of the statements contained in the Invitation), no facts have come to the attention of the personnel directly involved in rendering legal advice and assistance in connection with the preparation of the Invitation that causes them to believe that the statements made in section 16 of the Invitation in the subsection “Target Bonds Not Tendered for Purchase” under the caption “Additional Considerations” contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
4. The Invitation, and the actions of the Authority and the City in connection with the tender offer as specifically set forth in the Invitation, are exempt from the provisions of Section 14(d) of the Securities Exchange Act of 1934, as amended, and Regulation 14D and Regulation 14E of the Securities and Exchange Commission and the related rules promulgated thereunder.
The opinions expressed in paragraph (1) hereof are qualified to the extent that the enforceability of the Dealer Manager Agreement may be limited by any applicable bankruptcy, insolvency, debt adjustment, moratorium, reorganization or other similar laws affecting creditors’ rights generally, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases or as to the availability of any particular remedy. In addition, the enforceability of the Dealer Manager Agreement is subject to the effect of general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, to the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law, and to the limitations on legal remedies against public agencies in the State of California. We express no opinion as to any indemnification, contribution, penalty, choice of law, choice of forum or waiver provisions contained in the Dealer Manager Agreement.
We are furnishing this opinion to you pursuant to the Dealer Manager Agreement, solely for your benefit as Dealer Manager. This opinion is rendered in connection with the transaction described herein, and may not be relied upon by you for any other purpose. This opinion shall not extend to, and may not be used, circulated, quoted, referred to, or relied upon by, any other person, firm, corporation or other entity without our prior written consent. The delivery of this opinion shall not create any attorney-client relationship between our firm and the addressee hereof. We have no obligation to update this opinion.
Respectfully submitted,