$[PAR]
SAN MARCOS PUBLIC FINANCING AUTHORITY
Special Tax Revenue Refunding Bonds, Series 2024A
BOND PURCHASE AGREEMENT
[Pricing Date]
San Marcos Public Financing Authority
c/o City of San Marcos
One Civic Center Drive
San Marcos, California 92069
Attention: Finance Director
City of San Marcos Community Facilities District No. 99-01 c/o City of San Marcos
One Civic Center Drive
San Marcos, California 92069
Attention: Finance Director
Ladies and Gentlemen:
Stifel, Nicolaus & Company, Incorporated, as underwriter (the “Underwriter”), offers to enter into this Bond Purchase Agreement (this “Agreement”) with the San Marcos Public Financing Authority (the “Authority”) and the City of San Marcos Community Facilities District No. 99-01 (the “District”), which, upon your acceptance of this offer, will be binding upon the Authority, the District and the Underwriter. This offer is made subject to the acceptance by the Authority and the District of this Agreement on or before 11:59 p.m. on the date set forth above. Terms not otherwise defined herein have the meanings given them in the Indenture or the Fiscal Agent Agreements described below.
Section 1. Purchase and Sale. Upon the terms and conditions and in reliance upon the respective representations, warranties and covenants herein, the Underwriter hereby agrees to purchase from the Authority, and the Authority hereby agrees to sell to the Underwriter, all (but not less than all) of the above-captioned bonds (the “Bonds”) at a purchase price (the “Purchase Price”) of $___________ (equal to the par amount of the Bonds ($[PAR].00), [less]/[plus] [net] original issue [discount]/[premium] of $___________, less an Underwriter’s discount of $___________).
Concurrently with the sale of the Bonds to the Underwriter, upon the terms and conditions and in reliance upon the respective representations, warranties and covenants herein, the Authority hereby agrees to purchase from the District, and the District hereby agrees to sell to the Authority for such purpose, all (but not less than all) of the special tax refunding bonds identified in Exhibit C hereto (collectively, the “Special Tax Refunding Bonds”) for Improvement Areas A1, A2, B1, B2, C1, D1, F2/V2, G3, H1A, H1B, J, M, N1, N2, R1, R2, and V1A of the District (each, an “Improvement Area” and collectively, the “Improvement Areas”).
Section 2. The Bonds and the Special Tax Refunding Bonds. The Bonds will be issued by the Authority under the provisions of the Marks-Roos Local Bond Pooling Act of 1985, as amended, constituting Article 4 of Chapter 5 of Division 7 of Title 1 of the California Government Code (the “Act”) and a resolution adopted on _________, 2024 (the “Authority Bond Resolution”) by the Board of Directors of the Authority (the “Board of Directors”).
The Bonds will be issued under the terms of an Indenture of Trust (the “Indenture”), dated as of [Month] 1, 2024, by and between the Authority and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”). The proceeds of the sale of the Bonds will be used by the Authority to (i) provide funds to purchase the Special Tax Refunding Bonds, (ii) to provide cash for deposit in the Reserve Fund relating to the Bonds, (iii) purchase a municipal bond insurance policy (the “Policy”) from [BOND INSURER] (the “Insurer”) to guarantee payment of principal of and interest on the Bonds [maturing on September 1 of the years 20__ through 20__, inclusive], and (v) pay certain costs of issuance of the Bonds. The proceeds of the Bonds will be applied in accordance with the Indenture. On the Closing Date, at the request of the Authority, the Underwriter will wire the total premium for the Policy in the amount of $__________ directly to the Insurer. As a result, the net amount to be paid to the Authority by the Underwriter for the purchase of the Bonds shall be $__________ (the “Net Purchase Price”).
The Special Tax Refunding Bonds will be issued by the District under the Mello-Roos Community Facilities Act of 1982 (constituting Section 53311 et seq. of the California Government Code) (the “Mello-Roos Act”) and a resolution adopted on _________, 2024 (the “Special Tax Refunding Bonds Resolution”) by the City Council (the “City Council”) of the City of San Marcos (the “City”), acting as legislative body of the District. Each series of Special Tax Refunding Bonds will be issued under the terms of a separate Fiscal Agent Agreement (each, a “Fiscal Agent Agreement,” and collectively, the “Fiscal Agent Agreements”), dated as of [Month] 1, 2024, and by and between the District and U.S. Bank Trust Company, National Association, as fiscal agent (the “Fiscal Agent”), establishing the terms and conditions pertaining to the issuance of such Special Tax Refunding Bonds. The Special Tax Refunding Bonds will be payable from special taxes (the “Special Taxes”) as described in the applicable Fiscal Agent Agreement. The proceeds the Special Tax Refunding Bonds will be used to defease and redeem all of the outstanding San Marcos Public Financing Authority Special Tax Revenue Refunding Bonds, Series 2014A (the “Prior Authority Bonds”) and thereby discharge the series of special tax refunding bonds for the Improvement Areas identified in Exhibit D hereto (the “Prior Special Tax Refunding Bonds”) prior to their scheduled maturity in order to reduce the borrowing costs on such indebtedness.
In connection with the defeasance and redemption of the Prior Authority Bonds and the simultaneous discharge of the Prior Special Tax Bonds, the Authority, the District, and U.S. Bank Trust Company, National Association, as escrow bank, trustee of the Prior Authority Bonds and as fiscal agent of the Prior Special Tax Bonds (in such capacities, the “Escrow Bank”), will enter into an Escrow Deposit and Trust Agreement (the “Escrow Agreement”), dated as of [Month] 1, 2024.
The Bonds and the Special Tax Refunding Bonds will mature on the dates and in the principal amounts and will bear interest at the rates (and have the redemption terms) as set forth in Exhibit A and Exhibit B, respectively, hereto.
Section 3. Public Offering and Establishment of Issue Price. (a) The Underwriter agrees to make an initial public offering of all of the Bonds at the public offering prices (or yields) set forth in Exhibit A and incorporated herein by reference. Subsequent to the initial public offering, the Underwriter reserves the right to change the public offering prices (or yields) as the Underwriter deems necessary in connection with the marketing of the Bonds, provided that the Underwriter shall not change the interest rates set forth on Exhibit A. The Bonds may be offered and sold to certain dealers at prices lower than such initial public offering prices. The Authority and the District acknowledge and agree that: (i) the purchase and sale of the Bonds pursuant to this Agreement is an arm’s-length commercial transaction between the Authority and the District, on one hand, and the Underwriter, on the other; (ii) in connection therewith and with the discussions, undertakings and procedures leading up to the consummation of such transaction, the Underwriter is and has been acting solely as principal and is not acting as a Municipal Advisor (as defined in Section 15B of The Securities Exchange Act of 1934, as amended); (iii) the Underwriter has not assumed an advisory or fiduciary responsibility in favor of the Authority or the District with respect to the offering contemplated hereby or the discussions, undertakings and procedures leading thereto (irrespective of whether the Underwriter has provided other services or is currently providing other services to the Authority, the City or the District on other matters); (iv) the Underwriter has financial and other interests that differ from those of the to the Authority, the City and the District; and (v) the to the Authority, the City and the District have consulted their own legal, financial and other advisors to the extent that they have deemed appropriate. The Authority and the District acknowledge that they have previously provided the Underwriter with an acknowledgement of receipt of the required Underwriter disclosure under Rule G-17 of the MSRB. (b) The Underwriter agrees to assist the Authority in establishing the issue price of the Bonds and shall execute and deliver to the Authority at Closing (as defined below) an “issue price” or similar certificate, together with the supporting pricing wires or equivalent communications, substantially in the form set forth in Exhibit K, with such modifications as may be appropriate or necessary, in the reasonable judgment of the Underwriter, the Authority and Bond Counsel (as such term is defined below), to accurately reflect, as applicable, the sales price or prices or the initial offering price or prices to the public of the Bonds. All actions to be taken by the Authority under this section to establish the issue price of the Bonds may be taken on behalf of the Authority by the Authority’s municipal advisor, Fieldman, Rolapp & Associates, Inc. (the “Municipal Advisor”) and any notice or report to be provided to the Authority may be provided to the Authority’s Municipal Advisor. (c) Except as otherwise set forth in Exhibit A, the Authority will treat the first price at which 10% of each maturity of the Bonds (the “10% test”), identified under the column “10% Test Used” in Exhibit A, is sold to the public as the issue price of that maturity. At or promptly after the execution of this Agreement, the Underwriter shall report to the Authority the price or prices at which it has sold to the public each maturity of Bonds. If at that time the 10% test has not been satisfied as to any maturity of the Bonds, the Underwriter agrees to promptly report to the Authority the prices at which it sells the unsold Bonds of that maturity to the public. That reporting obligation shall continue, whether or not the Closing Date (as defined below) has occurred, until either: (i) the Underwriter has sold all of the Bonds of that maturity; or (ii), the 10% test has been satisfied as to the Bonds of that maturity, provided that, the Underwriter’s reporting obligation after the Closing Date may be at reasonable periodic intervals or otherwise upon the request of the Authority or Bond Counsel. For purposes of this Section, if Bonds mature on the same date but have different interest rates, each separate CUSIP number within that maturity will be treated as a separate maturity of the Bonds. For clarity, and notwithstanding any other condition to Closing set forth in this Agreement, the sale of 10% of each maturity of the Bonds to the public prior to the Closing Date shall not be a condition to Closing. (d) The Underwriter confirms that it has offered the Bonds to the public on or before the date of this Agreement at the offering price or prices (the “initial offering price”), or at the corresponding yield or yields, set forth in Exhibit A, except as otherwise set forth therein. Exhibit A also sets forth, identified under the column “Hold the Offering Price Rule Used,” as of the date of this Agreement, the maturities, if any, of the Bonds for which the 10% test has not been satisfied and for which the Authority and the Underwriter agree that the restrictions set forth in the next sentence shall apply, which will allow the Authority to treat the initial offering price to the public of each such maturity as of the sale date as the issue price of that maturity (the “hold-the-offering-price rule”). So long as the hold-the-offering-price rule remains applicable to any maturity of the Bonds, the Underwriter will neither offer nor sell unsold Bonds of that maturity to any person at a price that is higher than the initial offering price to the public during the period starting on the sale date and ending on the earlier of the following:
the close of the fifth (5th) business day after the sale date; or (ii) the date on which the Underwriter has sold at least 10% of that maturity of the Bonds to the public at a price that is no higher than the initial offering price to the public.
The Underwriter will advise the Authority promptly after the close of the fifth (5th) business day after the sale date whether it has sold 10% of that maturity of the Bonds to the public at a price that is no higher than the initial offering price to the public. (e) The Underwriter confirms that:
(1) any selling group agreement and any third-party distribution agreement relating to the initial sale of the Bonds to the public, together with the related pricing wires, contains or will contain language obligating each dealer who is a member of the selling group, and each broker-dealer that is a party to such third-party distribution agreement, as applicable, (A) (i) to report the prices at which it sells to the public the unsold Bonds of each maturity allocated to it, whether or not the Closing Date has occurred, until either all Bonds of that maturity allocated to it have been sold or it is notified by the Underwriter that the 10% test has been satisfied as to the Bonds of that maturity, provided that, the reporting obligation after the Closing Date may be at reasonable periodic intervals or otherwise upon request of the Underwriter, and (ii) to comply with the hold-the-offering-price rule, if applicable, if and for so long as directed by the Underwriter; (B) to promptly notify the Underwriter of any sales of Bonds that, to its knowledge, are made to a purchaser who is a related party to an underwriter participating in the initial sale of the Bonds to the public (each such term being used as defined below), and (C) to acknowledge that, unless otherwise advised by the dealer or broker-dealer, the Underwriter shall assume that each order submitted by the dealer or broker-dealer is a sale to the public; and (2) any selling group agreement relating to the initial sale of the Bonds to the public, together with the related pricing wires, contains or will contain language obligating each dealer that is a party to a third-party distribution agreement to be employed in connection with the initial sale of the Bonds to the public to require each broker-dealer that is a party to such third-party distribution agreement to (A) report the prices at which it sells to the public the unsold Bonds of each maturity allocated to it, whether or not the Closing Date has occurred, until either all Bonds of that maturity allocated to it have been sold or it is notified by the Underwriter or the dealer that the 10% test has been satisfied as to the Bonds of that maturity, provided that, the reporting obligation after the Closing Date may be at reasonable periodic intervals or otherwise upon request of the Underwriter or the dealer and (B) comply with the hold-the-offering-price rule, if applicable, if and for so long as directed by the Underwriter or the dealer and as set forth in the related pricing wires. (f) The Authority acknowledges that, in making the representations set forth in this Section, the Underwriter will rely on (i) in the event a selling group has been created in connection with the initial sale of the Bonds to the public, the agreement of each dealer who is a member of the selling group to comply with the requirements for establishing issue price of the Bonds, including, but not limited to, its agreement to comply with the hold-the-offering-price rule, if applicable to the Bonds, as set forth in a selling group agreement and the related pricing wires, and (ii) in the event that a third-party distribution agreement was employed in connection with the initial sale of the Bonds to the public, the agreement of each broker-dealer that is a party to such agreement to comply with the requirements for establishing issue price of the Bonds, including, but not limited to, its agreement to comply with the hold-the-offering-price rule, if applicable to the Bonds, as set forth in the third-party distribution agreement and the related pricing wires. The Authority further acknowledges that the Underwriter shall not be liable for the failure of any dealer who is a member of a selling group, or of any broker-dealer that is a party to a third-party distribution agreement, to comply with its corresponding agreement to comply with the requirements for establishing issue price of the Bonds, including, but not limited to, its agreement to comply with the hold-the-offering-price rule, if applicable to the Bonds. (g) The Underwriter acknowledges that sales of any Bonds to any person that is a related party to an underwriter participating in the initial sale of the Bonds to the public (each such term being used as defined below) shall not constitute sales to the public for purposes of this section. Further, for purposes of this section:
“public” means any person other than an underwriter or a related party; (ii) “underwriter” means (A) any person that agrees pursuant to a written contract with the Authority (or with the lead underwriter to form an underwriting syndicate) to participate in the initial sale of the Bonds to the public and (B) any person that agrees pursuant to a written contract directly or indirectly with a person described in clause (A) to participate in the initial sale of the Bonds to the public (including a member of a selling group or a party to a third party distribution agreement participating in the initial sale of the Bonds to the public); (iii) a purchaser of any of the Bonds is a “related party” to an underwriter if the underwriter and the purchaser are subject, directly or indirectly, to (A) more than 50% common ownership of the voting power or the total value of their stock, if both entities are corporations (including direct ownership by one corporation of another), (B) more than 50% common ownership of their capital interests or profits interests, if both entities are partnerships (including direct ownership by one partnership of another), or (C) more than 50% common ownership of the value of the outstanding stock of the corporation or the capital interests or profit interests of the partnership, as applicable, if one entity is a corporation and the other entity is a partnership (including direct ownership of the applicable stock or interests by one entity of the other); and (iv) “sale date” means the date of execution of this Agreement by all parties.
Section 4. The Official Statement. By their acceptance of this proposal, the Authority and the District ratify, confirm and approve of the use and distribution by the Underwriter prior to the date hereof of the preliminary official statement relating to the Bonds dated [POS Date] (including the cover page, all appendices and all information incorporated therein and any supplements or amendments thereto and as disseminated in its printed physical form or in electronic form in all respects materially consistent with such physical form, the “Preliminary Official Statement”) that an authorized officer of the District and the Authority deemed “final” as of its date, for purposes of Rule 15c2-12 promulgated under the Securities Exchange Act of 1934, as amended (“Rule 15c2-12”), except for certain information that is permitted to be omitted therefrom by Rule 15c2-12. The Authority and the District agree to deliver or cause to be delivered to the Underwriter, within seven business days of the date hereof, copies of the final official statement, dated the date hereof, relating to the Bonds (including all information that was previously permitted to have been omitted by Rule 15c2-12), including the cover page, all appendices, all information incorporated therein and any amendments or supplements as have been approved by the Authority, the District and the Underwriter (the “Official Statement”) in such quantity as the Underwriter shall reasonably request to comply with Section (b)(4) of Rule 15c2-12 and the rules of the Municipal Securities Rulemaking Board (the “MSRB”).
The Underwriter hereby agrees that it will not request that payment be made by any purchaser of the Bonds prior to delivery by the Underwriter to the purchaser of a copy of the Official Statement. The Underwriter agrees: (i) to provide the Authority and the District with final pricing information on the Bonds on a timely basis; and (ii) to file a copy of the Official Statement, including any supplements prepared by the Authority or the District in accordance with MSRB rules with the MSRB at http://emma.msrb.org. The Authority and the District hereby approve of the use and distribution by the Underwriter of the Preliminary Official Statement in connection with the offer and sale of the Bonds. Authority and the District will cooperate with the Underwriter in the filing by the Underwriter of the Official Statement with the MSRB.
In connection with issuance of the Bonds, and in order to assist the Underwriter in complying with Rule 15c2-12, the District, for itself and as agent for the Authority, will execute a Continuing Disclosure Agreement, dated as of [Month] 1, 2024 (the “Continuing Disclosure Agreement”), between the District and U.S. Bank Trust Company, National Association, as dissemination agent. The form of the Continuing Disclosure Agreement is attached as Appendix D to the Preliminary Official Statement.
Section 5. Representations, Warranties and Covenants of the Authority. The Authority represents, warrants and covenants to the Underwriter and the District that:
(a) The Authority is duly organized and validly existing as a public agency organized under the Joint Exercise of Powers Law of the State of California (the “State”), and has the full legal right, power and authority, among other things, (i) upon satisfaction of the conditions in this Agreement and the Indenture, to issue the Bonds as provided herein, and (ii) to secure the Bonds in the manner set forth in the Indenture. (b) The Board of Directors has the full legal right, power and authority to adopt the Bonds Resolution, and the Authority has the full legal right, power and authority (i) to enter into this Agreement, the Indenture and the Escrow Agreement (collectively, the “Authority Documents”), (ii) to issue, sell and deliver the Bonds to the Underwriter as provided herein, and (iii) to carry out and consummate all other transactions on its part contemplated by the Official Statement and each of the Authority Documents, and the Authority and the Board of Directors have complied with all provisions of applicable law, including the Act, in all matters relating to such transactions. (c) The Board of Directors has duly authorized (i) the execution and delivery by the Authority of the Bonds and the execution, delivery and due performance by the Authority of its obligations under the Authority Documents, (ii) the distribution and use of the Preliminary Official Statement and execution, delivery and distribution of the Official Statement, and (iii) the taking of any and all such action as may be required on the part of the Authority to carry out, give effect to and consummate the transactions on its part contemplated by such instruments. All consents or approvals necessary to be obtained by the Authority in connection with the foregoing have been received, and the consents or approvals so received are still in full force and effect. (d) The Authority Bond Resolution has been duly adopted by the Board of Directors at a duly noticed regular meeting of the Board of Directors at which a quorum was present and acting throughout and is in full force and effect; and the Authority Documents, when executed and delivered by the Authority and the other parties thereto, will each constitute a legal, valid and binding obligation of the Authority enforceable against the Authority in accordance with their terms, except as enforceability thereof may be limited by bankruptcy, insolvency or other laws affecting creditors’ rights generally. (e) When delivered to the Underwriter, the Bonds will have been duly authorized by the Board of Directors and duly executed, issued and delivered by the Authority and will constitute legal, valid and binding special obligations of the Authority enforceable against the Authority in accordance with their respective terms, except as enforceability thereof may be limited by bankruptcy, insolvency or other laws affecting creditors’ rights generally, and will be entitled to the benefit and security of the Indenture. (f) The information (excluding information relating to The Depository Trust Company (“DTC”) and its book-entry system, and information regarding the Policy and the Insurer) contained in the Preliminary Official Statement is, and as of the Closing Date such information in the Official Statement will be true and correct in all material respects, and the Preliminary Official Statement does not as of its date and the Official Statement will not as of the Closing Date contain any untrue or misleading statement of a material fact (excluding information relating to DTC and its book-entry system, and information regarding the Policy and the Insurer) or omit to state any material fact (excluding information relating to DTC and its book-entry system, and information regarding the Policy and the Insurer) necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (g) Until the date which is twenty-five (25) days after the End of the Underwriting Period, if any event shall occur of which the Authority, the District or the City becomes aware that would cause the Official Statement to contain any untrue statement of a material fact or omit to state a material fact that is necessary in order to make the statements in the Official Statement, in light of the circumstances under which they were made, not misleading (excluding information relating to DTC and its book-entry system, and information regarding the Policy and the Insurer), the Authority shall forthwith notify the Underwriter of any such event of which it has knowledge and shall cooperate fully in furnishing any information available to it for any supplement to the Official Statement necessary, in the Underwriter’s reasonable opinion, so that the statements therein as so supplemented will not be misleading in light of the circumstances existing at such time and the City shall promptly furnish to the Underwriter a reasonable number of copies of such supplement. As used herein, the term “End of the Underwriting Period” means the later of such time as: (i) the Bonds are delivered to the Underwriter; or (ii) the Underwriter does not retain, directly or as a member of an underwriting syndicate, an unsold balance of the Bonds for sale to the public. Unless the Underwriter gives notice to the contrary, the End of the Underwriting Period shall be deemed to be the Closing Date (as described in Section 7 below). Any notice delivered pursuant to this provision shall be written notice delivered to the Authority at or prior to the Closing Date, and shall specify a date (other than the Closing Date) to be deemed the “End of the Underwriting Period.” (h) Neither the adoption of the Authority Bond Resolution, the execution and delivery of the Authority Documents, nor the consummation of the transactions on the part of the Authority contemplated herein or therein or the compliance by the Authority with the provisions hereof or thereof will conflict with, or constitute on the part of the Authority, a violation of, or a breach of or default under, (i) any material indenture, mortgage, commitment, note or other agreement or instrument to which the Authority is a party or by which it is bound, (ii) any provision of the State Constitution or (iii) any existing law, rule, regulation, ordinance, judgment, order or decree to which the Authority is subject, that could have a material adverse effect on the ability of the Authority to perform its obligations under the Authority Documents. (i) The Authority has never been in default at any time, as to principal of or interest on any obligation which it has issued, including those which it has issued as a conduit for another entity, which default may have an adverse effect on the ability of the Authority to consummate the transactions on its part under the Authority Documents, except as specifically disclosed in the Official Statement; and the Authority has not entered into any contract or arrangement of any kind which might give rise to any lien or encumbrance on the Revenues (as defined in the Indenture) or the funds and accounts established and pledged as security therefor under the Indenture . (j) Except as is specifically disclosed in the Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, pending with respect to which the Authority has been served with process or, to the best knowledge of the Authority, threatened, which in any way questions the powers of the Board of Directors or the Authority referred to in paragraph (b) above, or the validity of any proceeding taken by the Board of Directors in connection with the issuance of the Bonds, or wherein an unfavorable decision, ruling or finding could materially adversely affect the transactions contemplated by the Authority Documents, or which, in any way, could adversely affect the validity or enforceability of the Authority Bond Resolution, the Bonds or the Authority Documents or which in any way questions the status of the Bonds for federal income tax purposes or in any other way questions the status of the Bonds under State tax laws or regulations. (k) Any certificate signed by an official of the Authority authorized to execute such certificate and delivered to the Underwriter in connection with the transactions contemplated by the Authority Documents shall be deemed a representation and warranty by the Authority to the Underwriter as to the truth of the statements therein contained. (l) The Bonds will be paid from the Revenues (as defined in the Indenture) received by the Authority and amounts held in certain funds and accounts established and pledged as security therefor under the Indenture. (m) The Indenture creates a valid pledge of, and first lien upon the Revenues deposited thereunder, and the amounts held in certain funds and accounts established and pledged under the Indenture, subject in all cases to the provisions of the Indenture permitting the application thereof for the purposes and on the terms and conditions set forth therein. (n) Except as disclosed in the Official Statement, in the last five years, the Authority has not failed to comply with any undertaking under Rule 15c2-12 in any material respect.
Section 6. Representations, Warranties and Covenants of the District. The District represents, warrants and covenants to the Underwriter and the Authority that:
The City is duly organized and validly existing as a general law city under the Constitution and laws of the State of California and has duly authorized the formation of the District and the incurring of bonded indebtedness thereby with respect to the Improvement Areas pursuant to resolutions duly adopted by the City Council (collectively, the “District Formation Resolutions” and, together with the Special Tax Refunding Bonds Resolution, the “District Resolutions”) and the Mello-Roos Act. The City Council, as the legislative body of the City and the District, has duly adopted the District Formation Resolutions and ordinances of the City Council levying Special Taxes within the Improvement Areas (collectively, the “Ordinances”), and has caused to be recorded in the real property records of the County of San Diego, notices of special tax lien, and any required amendments thereof (collectively, the “Notices of Special Tax Lien” and, together with the District Formation Resolutions and the Ordinances, the “Formation Documents”), and has duly adopted the Special Tax Refunding Bonds Resolution. Each of its Formation Documents remains in full force and effect as of the date hereof and has not been amended or rescinded.
The District is duly organized and validly existing as a community facilities district under the laws of the State of California, and District has, and at the Closing Date will have, as the case may be, full legal right, power and authority: (i) to execute, deliver and perform its obligations under this this Agreement, the Continuing Disclosure Agreement, the Escrow Agreement, and the Fiscal Agent Agreements (collectively, the “District Documents”); (ii) to issue, sell and deliver the Special Tax Refunding Bonds to the Authority as provided herein; (iii) to carry out, give effect to and consummate the transactions contemplated by the Formation Documents, the District Documents, and the Official Statement; and (iv) to secure the Special Tax Refunding Bonds in the manner set forth in the Fiscal Agent Agreements. (c) The District has duly authorized (i) the execution and delivery by the District of the Special Tax Refunding Bonds and the execution, delivery and due performance by the District of its obligations under the District Documents, (ii) the distribution and use of the Preliminary Official Statement and execution, delivery and distribution of the Official Statement, and (iii) the taking of any and all such action as may be required on the part of the District to carry out, give effect to and consummate the transactions on its part contemplated by such instruments. All consents or approvals necessary to be obtained by the District in connection with the foregoing have been received, and the consents or approvals so received are still in full force and effect. (d) The Formation Documents were duly adopted by the City Council at duly noticed regular meetings of the City Council at each of which a quorum was present and acting throughout and are in full force and effect; and the District Documents, when executed and delivered by the District and the other parties thereto, will constitute legal, valid and binding obligations of the District enforceable against the District in accordance with their terms, except as enforceability thereof may be limited by bankruptcy, insolvency or other laws affecting creditors’ rights generally. (e) When delivered to the Authority, the Special Tax Refunding Bonds will have been duly authorized by the City Council and duly executed, issued and delivered by the District and will constitute legal, valid and binding special obligations of the District enforceable against the District in accordance with their respective terms, except as enforceability thereof may be limited by bankruptcy, insolvency or other laws affecting creditors’ rights generally, and will be entitled to the benefit and security of the Fiscal Agent Agreements. (f) The information (excluding information relating to DTC and its book-entry system, and information regarding the Policy and the Insurer) contained in the Preliminary Official Statement is, and as of the Closing Date such information in the Official Statement will be true and correct in all material respects, and the Preliminary Official Statement does not as of its date and the Official Statement will not as of the Closing Date contain any untrue or misleading statement of a material fact (excluding information relating to DTC and its book-entry system, and information regarding the Policy and the Insurer) or omit to state any material fact (excluding information relating to DTC and its book-entry system, and information regarding the Policy and the Insurer) necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (g) Until the date which is twenty-five (25) days after the End of the Underwriting Period, if any event shall occur of which the Authority, the District or the City becomes aware that would cause the Official Statement to contain any untrue statement of a material fact or omit to state a material fact that is necessary in order to make the statements in the Official Statement, in light of the circumstances under which they were made, not misleading (excluding information relating to DTC and its book-entry system, and information regarding the Policy and the Insurer), the Authority shall forthwith notify the Underwriter of any such event of which it has knowledge and shall cooperate fully in furnishing any information available to it for any supplement to the Official Statement necessary, in the Underwriter’s reasonable opinion, so that the statements therein as so supplemented will not be misleading in light of the circumstances existing at such time and the City shall promptly furnish to the Underwriter a reasonable number of copies of such supplement (h) Neither the adoption of the Formation Documents, the execution and delivery of the District Documents, nor the consummation of the transactions on the part of the District contemplated herein or therein or the compliance by the District with the provisions hereof or thereof will conflict with, or constitute on the part of the District, a violation of, or a breach of or default under, (i) any material indenture, mortgage, commitment, note or other agreement or instrument to which the District is a party or by which it is bound, (ii) any provision of the State Constitution or (iii) any existing law, rule, regulation, ordinance, judgment, order or decree to which the District or the City (or the members of the City Council or any of its officers in their respective capacities as such) is subject, that would have a material adverse effect on the ability of the District to perform its obligations under the District Documents. (i) The District has never been in default at any time, as to principal of or interest on any obligation which it has issued, including those which it has issued as a conduit for another entity, which default may have an adverse effect on the ability of the District to consummate the transactions on its part under the District Documents, except as specifically disclosed in the Official Statement; and the District has not entered into any contract or arrangement of any kind which might give rise to any lien or encumbrance on the Special Taxes. (j) Except as is specifically disclosed in the Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, pending with respect to which the District or the City has been served with process or, to the best knowledge of the District, threatened, which in any way questions the powers of the City Council, the City or the District referred to in paragraph (b) above, or the validity of any proceeding taken by the City Council in connection with the issuance of the Special Tax Refunding Bonds, or wherein an unfavorable decision, ruling or finding could materially adversely affect the transactions contemplated by the District Documents, or which, in any way, could adversely affect the validity or enforceability of the Formation Documents, the Special Tax Refunding Bonds or the District Documents or which in any way questions the exclusion from gross income of the recipients thereof of the interest on the Bonds for federal income tax purposes or in any other way questions the status of the Special Tax Refunding Bonds under State tax laws or regulations. (k) Any certificate signed by an official of the District authorized to execute such certificate and delivered to the Underwriter in connection with the transactions contemplated by the District Documents shall be deemed a representation and warranty by the District to the Underwriter as to the truth of the statements therein contained. (l) Each series of Special Tax Refunding Bonds will be paid from the applicable Net Special Tax Revenues (as defined in the applicable Fiscal Agent Agreement for such Special Tax Refunding Bonds) and amounts held in certain funds and accounts established and pledged under the applicable Fiscal Agent Agreement. (m) With respect to each Improvement Area, the Special Taxes may lawfully be levied in accordance with the rate and method of apportionment of the Special Taxes relating to each such Improvement Area (each, a “Rate and Method”), the Formation Documents as described in the Preliminary Official Statement and the Official Statement, and, when levied, will be secured by a lien on the property on which they are levied. (n) Each Fiscal Agent Agreement creates a valid pledge of, and first lien upon the applicable Net Special Tax Revenues deposited thereunder, and the amounts held in certain funds and accounts established and pledged under the such Fiscal Agent Agreement, subject in all cases to the provisions of therein permitting the application thereof for the purposes and on the terms and conditions set forth therein. Each series of Special Tax Refunding Bonds is a separate and distinct obligation secured by special taxes levied against certain properties within the respective Improvement Area to which such series of Special Tax Refunding Bonds relates. Special taxes from an Improvement Area may only be used to pay debt service on the series of Special Tax Refunding Bonds issued for such Improvement Area. (o) Except as disclosed in the Official Statement, in the last five years, neither the City, nor the District, nor any other entity for which the City Council is the legislative body, has failed to comply with any undertaking under Rule 15c2-12 in any material respect.
Section 7. Closing. At 8:30 a.m., California time, on [Closing Date], or at such other time or date as the Authority and the Underwriter agree upon (the “Closing Date”), (i) the Authority shall deliver or cause to be delivered to the Trustee, the Bonds, in definitive form, registered in the name of Cede & Co., as the nominee of DTC, so that the Bonds may be authenticated by the Trustee and credited to the account specified by the Underwriter under DTC’s FAST procedures, and (ii) the District will deliver or cause to be delivered to the Authority the Special Tax Refunding Bonds in definitive form duly executed and authenticated by the Fiscal Agent.
Concurrently with the delivery of the Bonds, the Authority and the District will deliver the documents hereinafter mentioned at the offices of Best Best & Krieger LLP, Riverside, California, as bond counsel to the Authority and the District (“Bond Counsel”), or another place to be mutually agreed upon by the Authority and the Underwriter. The Underwriter will accept such delivery and pay the Net Purchase Price of the Bonds as set forth in Section 1 hereof by wire transfer in immediately available funds. This payment for and delivery of the Bonds, together with the delivery of the aforementioned documents, and the simultaneous delivery of the Special Tax Refunding Bonds is herein referred is herein called the “Closing.” The Bonds shall be registered in the name of Cede & Co., as nominee of DTC in denominations of five thousand dollars ($5,000) or any integral multiple thereof. The Authority and the District acknowledge that the services of DTC will be used initially by the Underwriter in order to permit the issuance of the Bonds in book-entry form, and agree to cooperate fully with the Underwriter in employing such services.
Section 8. Termination Events. In recognition of the desire of the Authority, the District and the Underwriter to effect a successful public offering of the Bonds, and in view of the potential adverse impact of any of the following events on such a public offering, this Agreement shall be subject to termination in the discretion of the Underwriter by notification, in writing, to the Authority and the District prior to delivery of and payment for the Bonds, if between the date hereof and the time of Closing, in the Underwriter’s sole and reasonable judgment any of the following events shall occur (each a “Termination Event”):
the market price or marketability of the Bonds, or the ability of the Underwriter to enforce contracts for the sale of the Bonds, shall be materially adversely affected by any of the following events:
legislation shall have been enacted by the Congress of the United States or the legislature of the State or shall have been favorably reported out of committee of either body or be pending in committee of either body, or shall have been recommended to the Congress for passage by the President of the United States or a member of the President’s Cabinet, or a decision shall have been rendered by a court of the United States or the State or the Tax Court of the United States, or a ruling, resolution, regulation or temporary regulation, release or announcement shall have been made or shall have been proposed to be made by the Treasury Department of the United States or the Internal Revenue Service, or other federal or state authority with appropriate jurisdiction, with respect to federal or state taxation upon interest received on obligations of the general character of the Bonds; there shall have occurred (1) an outbreak or escalation of hostilities or the declaration by the United States of a national emergency or war or (2) any other calamity or crisis in the financial markets of the United States or elsewhere or the escalation of such calamity or crisis; or a general suspension of trading on the New York Stock Exchange or other major exchange shall be in force, or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on any such exchange, whether by virtue of determination by that exchange or by order of U.S. Securities and Exchange Commission (“SEC”) or any other governmental authority having jurisdiction; or legislation shall have been enacted by the Congress of the United States or shall have been favorably reported out of committee or be pending in committee, or shall have been recommended to the Congress for passage by the President of the United States or a member of the President's Cabinet, or a decision by a court of the United States shall be rendered, or a ruling, regulation, proposed regulation or statement by or on behalf of the SEC or other governmental agency having jurisdiction of the subject matter shall be made, to the effect that any obligations of the general character of the Securities, or the Bonds are not exempt from registration under or other requirements of the Securities Act of 1933, as amended and as then in effect, or the Securities Exchange Act of 1934, as amended and as then in effect, or that the Indenture is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended and as then in effect; or except as disclosed in or contemplated by the Official Statement, any material adverse change in the affairs of the City, the District or the Authority shall have occurred; or any rating of the Bonds or the rating of any obligations of the District shall have been downgraded, withdrawn or placed on credit watch with negative outlook by any major credit rating agency; or any event or circumstance shall exist that either makes untrue or incorrect in any material respect any statement or information in the Official Statement (other than any statement provided by the Underwriter) or is not reflected in the Official Statement but should be reflected therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and, in either such event, the Authority or the District refuses to permit the Official Statement to be supplemented to supply such statement or information, or the effect of the Official Statement as so supplemented is to materially adversely affect the market price or marketability of the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds; or a general banking moratorium shall have been declared by federal or State authorities having jurisdiction and be in force; or a material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred; or any new restriction on transactions in securities materially affecting the market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a charge to the net capital requirements of, underwriters shall have been established by the New York Stock Exchange, the SEC, any other federal or State agency or the Congress of the United States, or by Executive Order; or a decision by a court of the United States shall be rendered, or a stop order, release, regulation or no-action letter by or on behalf of the SEC or any other governmental agency having jurisdiction of the subject matter shall have been issued or made, to the effect that the issuance, offering or sale of the Bonds, including the underlying obligations as contemplated by this Agreement or by the Official Statement, or any document relating to the issuance, offering or sale of the Bonds, is or would be in violation of any provision of the federal securities laws at the Closing Date, including the Securities Act of 1933, as amended and as then in effect, the Securities Exchange Act of 1934, as amended and as then in effect, or the Trust Indenture Act of 1939; or the commencement of any action, suit or proceeding described in Sections 5(j) or 6(j) hereof.
Upon the occurrence of a Termination Event and the termination of this Agreement by the Underwriter, all obligations of the Authority, the District and the Underwriter under this Agreement shall terminate, without further liability.
Section 9. Conditions to the Obligations of the Underwriter. The Underwriter has entered into this Agreement in reliance upon the representations and warranties of the Authority and the District contained herein. The obligations of the Underwriter to accept delivery of and pay for the Bonds on the Closing Date shall be subject, at the option of the Underwriter, to the accuracy in all material respects of the statements of the officers and other officials of the Authority and the District, as well as authorized representatives of Bond Counsel, Disclosure Counsel and the Trustee made in any certificates or other documents furnished pursuant to the provisions hereof; to the performance by the Authority and the District of their obligations to be performed under the Authority Documents and the District Documents, respectively, at or prior to the Closing Date; and to the following additional conditions:
(a) At the time of Closing, (i) the Official Statement, the Authority Documents and the District Documents shall be in full force and effect and shall not have been amended, modified or supplemented except as may have been agreed to by the Underwriter, and (ii) the Authority and the District shall have duly adopted and there shall be in full force and effect such resolutions and ordinances (including, but not limited to, the Authority Bond Resolution and the Formation Documents) as, in the opinion of Bond Counsel, shall be necessary in connection with the transactions contemplated hereby. (b) Receipt of the Bonds, executed by the Authority and authenticated by the Trustee, at or prior to the Closing. The terms of the Bonds, when delivered, shall in all instances be as described in Official Statement. (c) At or prior to the Closing, the Underwriter shall receive the following documents in such number of counterparts as shall be mutually agreeable to the Underwriter, the District and the Authority:
(i) A final approving opinion of Bond Counsel with respect to the Bonds dated the Closing Date in the form attached as Appendix C to the Official Statement; and (ii) A supplemental opinion of Bond Counsel addressed to the Authority and the Underwriter, which includes a statement to the effect that Bond Counsel’s final approving opinion relating to the Bonds may be relied upon by the Underwriter to the same extent as if such opinion were addressed to the Underwriter, and further provides:
the statements contained in the Official Statement under the captions “INTRODUCTION,” “THE FINANCING PLAN,” “THE BONDS” (other than information relating to DTC and its book-entry only system and information in the section entitled “– Debt Service Schedule” as to which no opinion need be expressed), “SECURITY FOR THE BONDS” (except information in the section entitled “– Levy and Collection of Special Taxes” as to which no opinion need be expressed),” and “CONCLUDING INFORMATION – Tax Matters,” and in Appendix B and Appendix C thereto, excluding any material that may be treated as included under such captions by reference to other documents, insofar as such statements expressly summarize certain provisions of the Indenture, the Fiscal Agent Agreements and the form and content of Bond Counsel’s final opinion relating to the Bonds are accurate in all material respects; (B) this Agreement and the Escrow Agreement have been duly executed and delivered by, and constitute valid and binding obligations of, the Authority, subject to bankruptcy, insolvency, reorganization, moratorium and other laws affecting enforcement of creditors’ rights in general and to the application of equitable principles if equitable remedies are sought; (C) the District Documents have been duly authorized, executed and delivered by the District and constitute the legal, valid and binding obligations of the District, enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, moratorium or other laws affecting enforcement of creditors’ rights, or by the application of equitable principles if equitable remedies are sought; (D) the District is duly organized and validly existing as a community facilities district under the laws of the State of California; (E) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification under the Trust Indenture Act of 1939, as amended; and (F) the Special Tax Refunding Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Fiscal Agent Agreements are exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended. (iii) An opinion of Bond Counsel, dated the closing date and addressed to the District, with respect to the Special Tax Refunding Bonds, together with reliance letters addressed to the Authority and the Underwriter, in form and substance acceptable to counsel for the Underwriter. (iv) An opinion of Stradling Yocca Carlson & Rauth LLP, Newport Beach, California, addressed to the Authority, the District and the Underwriter (“Disclosure Counsel”), to the effect that during the course of serving as Disclosure Counsel in connection with the issuance of the Bonds and without having undertaken to determine independently or assuming any responsibility for the accuracy, completeness or fairness of the statements contained in the Preliminary Official Statement and the Official Statement, no information came to the attention of the attorneys in such firm rendering legal services in connection with the issuance of the Bonds and the Special Tax Refunding Bonds that would lead them to believe that the Preliminary Official Statement as of its date and the date hereof or the Official Statement as of its date or the Closing Date (in each case excluding therefrom the financial statements, any financial or statistical data, or forecasts, charts, numbers, estimates, projections, assumptions or expressions of opinion included in the Preliminary Official Statement and Official Statement, information regarding DTC, information regarding the Policy and the Insurer, and the appendices to the Preliminary Official Statement and Official Statement, as to which no opinion need be expressed), contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (v) An opinion of Anzel Galvan LLP, San Francisco, California, dated the Closing Date, addressed to the Underwriter and in form and substance acceptable to the Underwriter. (vi) The Official Statement executed on behalf of the Authority by a duly authorized officer. (vii) Certified copies of the Authority Bond Resolution and the Special Tax Refunding Bonds Resolution and a certificate of the City Clerk to the effect that the Formation Documents are in full force and effect and have not been amended or repealed since the date of their adoption. (viii) Evidence of recordation in the real property records of the County of San Diego of the Notices of Special Tax Lien, in the form required by the Mello-Roos Act, with respect to each Improvement Area. (ix) A certificate of 30 Three Sixty Public Finance, Inc., Carlsbad, California, as Special Tax Consultant, in form and substance as set forth in Exhibit E hereto, dated as of the Closing Date. (x) A certificate of the Authority, in form and substance as set forth in Exhibit F hereto, dated as of the Closing Date. (xi) In connection with printing and distribution of the Preliminary Official Statement, an executed certificate of the Authority and District substantially in the form attached hereto as Exhibit G. (xii) A certificate of the District, in form and substance as set forth in Exhibit H hereto, dated as of the Closing Date. (xiii) Executed copies of the Authority Documents and the District Documents. (xiv) An opinion, dated the Closing Date and addressed to the Underwriter, of the City Attorney, as counsel to the Authority, to the effect that:
(A) the Authority is duly organized and validly existing as a public agency organized under the Joint Exercise of Powers Law of the State; (B) the Board of Directors has the full legal right, power and authority to adopt the Authority Bond Resolution; (C) the Authority Bond Resolution was duly adopted at a regular meeting of the Board of Directors which was called and held under law and with all public notice required by law and at which a quorum was present and acting throughout, and the Authority Bond Resolution is in full force and effect and has not been amended or repealed; (D) no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body is pending with respect to which the Authority has been served with process or, to the best of their knowledge, threatened, in any way affecting the existence of the Authority or the titles of the Authority’s officials to their respective offices, or seeking to restrain or to enjoin the issuance, sale or delivery of the Bonds or the application of the proceeds thereof in accordance with the Indenture, or the collection or application of the Revenues to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity or enforceability of the Bonds, the Authority Documents or any action of the Authority contemplated by any of said documents, or in any way contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or the powers of the Authority or its authority with respect to the Bonds or the Authority Documents, wherein an unfavorable decision, ruling, or finding could materially adversely affect the validity or enforceability of the Bonds or the Authority Documents; (E) the execution and delivery of the Bonds and the Authority Documents, and compliance with the provisions of each, will not conflict with or constitute a breach of or default under any loan agreement, note, ordinance, resolution, indenture, contract, agreement or other instrument of which the Authority is a party or is otherwise subject or bound, a consequence of which could be to materially and adversely affect the ability of the Authority to perform its obligations under the Bonds or the Authority Documents; and (F) all approvals, consents, authorization, elections and orders of or filings or registrations with any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to, or the absence of which would materially adversely affect, the ability of the Authority to perform its obligations under the Bonds or the Authority Documents, have been obtained or made, as the case may be, and are in full force and effect. (xv) An opinion, dated the Closing Date and addressed to the Underwriter, of the City Attorney, as counsel to the District, to the effect that:
(A) the District is duly organized and validly existing as a community facilities district under and by virtue of the Constitution and laws of the State (including the Mello-Roos Act); (B) the City Council of the City, acting as legislative body of the District, has the full legal right, power and authority to adopt the Formation Documents; (C) the Formation Documents were duly adopted at meetings of the City Council, acting as legislative body of the District, which were called and held under law and with all public notice required by law and at which a quorum was present and acting throughout, and the Formation Documents are in full force and effect and have not been amended or repealed; (D) no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body is pending with respect to which the District has been served with process or, to their best knowledge, threatened, in any way affecting the existence of the City, the District or the titles of the District’s officials to their respective offices, or seeking to restrain or to enjoin the issuance, sale or delivery of the Special Tax Refunding Bonds or the application of the proceeds thereof in accordance with the Fiscal Agent Agreements, or the collection or application of the Special Taxes to pay the principal of and interest on the Special Tax Refunding Bonds, or in any way contesting or affecting the validity or enforceability of the Special Tax Refunding Bonds, the District Documents or any action of the District contemplated by any of said documents, or in any way contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or the powers of the District or its authority with respect to the Special Tax Refunding Bonds, the District Documents, wherein an unfavorable decision, ruling, or finding could materially adversely affect the validity or enforceability of the Special Tax Refunding Bonds or the District Documents; (E) the execution and delivery of the Special Tax Refunding Bonds and the District Documents, and compliance with the provisions of each, will not conflict with or constitute a breach of or default under any loan agreement, note, ordinance, resolution, indenture, contract, agreement or other instrument of which the District is a party or is otherwise subject or bound, a consequence of which could be to materially and adversely affect the ability of the District to perform its obligations under the Special Tax Refunding Bonds or the District Documents; and (F) all approvals, consents, authorization, elections and orders of or filings or registrations with any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to, or the absence of which would materially adversely affect, the ability of the District to perform its obligations under the Special Tax Refunding Bonds or the District Documents, have been obtained or made, as the case may be, and are in full force and effect. (xvi) A certificate of U.S. Bank Trust Company, National Association, as Trustee, Fiscal Agent and Escrow Bank, substantially in the form attached hereto as Exhibit F, together with certifications as to other matters that Bond Counsel may reasonably require, and an opinion of counsel to the Trustee, Fiscal Agent and Escrow Bank in form and substance satisfactory to the Underwriter and Bond Counsel. (xvii) A certificate of Fieldman, Rolapp & Associates, Inc., as municipal advisor to the Authority and the District, substantially in the form attached hereto as Exhibit I. (xviii) [A letter addressed to the District, the Underwriter, the Authority, and Bond Counsel, dated the date of the Closing, from Causey Demgen & Moore P.C. (the “Verification Agent”), verifying the accuracy of the mathematical computations concerning the adequacy of the moneys to be deposited with the Escrow Bank to pay when due the redemption price and interest on the outstanding Prior Authority Bonds.] (xix) Evidence that the Bonds have been given the ratings shown in the Official Statement. (xx) An opinion of Bond Counsel, dated the Closing Date and addressed to the Authority, the District, the Underwriter, the Trustee, the Fiscal Agent and the Insurer, in form and substance satisfactory to such addressees, to the effect that the Prior Authority Bonds and the Prior Special Tax Bonds have been defeased and discharged and are no longer outstanding under their respective indentures or fiscal agent agreements. (xxi) Evidence satisfactory to the Underwriter that the Trustee shall have received the Policy from the Insurer. (xxii) A certificate of the Insurer, in form and substance satisfactory to the Underwriter, Bond Counsel, and Disclosure Counsel, with respect to, among other matters, the Policy and disclosures relating thereto in the Official Statement. (xxiii) An opinion of counsel to the Insurer, in form and substance satisfactory to the Underwriter, Bond Counsel and Disclosure Counsel, with respect to, among other matters, the Policy and disclosures relating thereto in the Official Statement. (xxiv) Copies of the Report of Proposed Debt Issuance and Report of Final Sale filed with the California Debt and Investment Advisory Commission. (xxv) A copy of the Blanket Authority Letter of Representations to DTC relating to the Bonds signed by the Authority. (xxvi) Such additional legal opinions, certificates, proceedings, instruments and other documents as the Underwriter, Disclosure Counsel or Bond Counsel may reasonably request to evidence compliance by the Authority with legal requirements, the truth and accuracy, as of the time of Closing, of the respective representations of the Authority herein contained and the due performance or satisfaction by the Authority at or prior to such time of all agreements then to be performed and all conditions then to be satisfied.
All of the opinions, letters, certificates, instruments and other documents mentioned in this Agreement will be deemed to be in compliance with the provisions of this Agreement if, but only if, they are in form and substance satisfactory to the Underwriter. If the Authority or the District are unable to satisfy the conditions to the obligations of the Underwriter contained in this Agreement, or if the obligations of the Underwriter to purchase and accept delivery of the Bonds shall be terminated for any reason permitted by this Agreement, this Agreement shall terminate and neither the Underwriter, the District nor the Authority shall be under further obligation hereunder; except that the respective obligations to pay expenses, as provided in Section 13 shall continue in full force and effect.
Section 10. Conditions to Authority’s and District’s Obligations. The performance by the Authority and the District of their respective obligations under this Agreement are conditioned upon: (i) the performance by the Underwriter of its obligations hereunder and (ii) receipt by the Authority and the District of opinions addressed to the Authority and the District, and receipt by the Underwriter of opinions addressed to the Underwriter, and the delivery of certificates being delivered on the date of the Closing by persons and entities other than the Authority and the District.
Section 11. Survival of Representations, Warranties, Agreements. All representations, warranties and agreements of the Authority and the District hereunder shall remain operative and in full force and effect, regardless of any investigations made by or on behalf of the Underwriter, the Authority or the District and shall survive the Closing. The agreements contained in this Section and in Section 13 will survive any termination of this Purchase Agreement.
Section 12. Qualification of Bonds. The Authority covenants with the Underwriter that the Authority will cooperate with the Underwriter (at the cost of the Underwriter), in qualifying the Bonds for offer and sale under the securities or Blue Sky laws of such jurisdictions of the United States as the Underwriter may reasonably request; provided, however, that the Authority shall not be required to consent to suit or to service of process, or to qualify to do business, in any jurisdiction. The Authority consents to the use by the Underwriter of the Authority Documents in the course of its compliance with the securities or Blue Sky laws of the various jurisdictions.
Section 13. Payment of Expenses. Whether or not the Bonds are sold to the Underwriter, the Underwriter shall be under no obligation to pay any expenses incident to the performance of the obligations of the District and the Authority hereunder. If the Bonds are delivered by the Authority to the Underwriter, the Authority and the District shall pay, from the proceeds of the Bonds or from other funds of the Authority or the District, the following expenses: (a) the cost of preparing, duplicating or printing, mailing and delivering the District Documents, the Authority Documents, the Preliminary Official Statement, the Official Statement and all other agreements and documents that are contemplated hereby (and drafts of any thereof); (b) the cost of preparation and printing of the definitive Bonds; (c) the fees and expenses of the Authority, the District, the Trustee, Bond Counsel, Disclosure Counsel, the Municipal Advisor, any entity performing continuing disclosure compliance research or providing continuing disclosure compliance reports and any other experts or consultants retained by the Authority or the District; (d) the charges of any rating agency with respect to the Bonds; (e) reimbursement to the Underwriter for payment of any fees and expenses reasonably incurred in connection with the initial offering, sale and delivery of the Bonds, including but not limited to industry fees (e.g., DTC, DAC, IPREO, CUSIP and Day Loan fees) only if the District, the Authority and Underwriter have previously discussed and approved the allocation of proceeds towards these fees, and meal and travel expenses of the personnel of the District or the Authority, but not including entertainment expenses or those to be paid by the Underwriter pursuant to the last paragraph of this Section 13, and (f) all other fees and expenses, not including entertainment expenses, reasonably incurred in connection with the preparation of the District Documents, the Authority Documents, the Preliminary Official Statement, the Official Statement and all other agreements and documents that are contemplated hereby (and drafts of any thereof) and/or the initial offering, sale and delivery of the Bonds. The District and the Authority have authorized, and do hereby authorize, the Underwriter to pay such expenses on behalf of the District and the Authority from proceeds of the Bonds at Closing as further described in the closing memorandum relating to the Bonds.
If the Bonds are sold to the Underwriter by the Authority, the Authority and the District shall pay out of the proceeds of the Bonds the discount of the Underwriter or the purchase price paid for the Bonds shall reflect such discount.
Except as otherwise provided in this Section 13, the Underwriter shall pay the cost, if any, of qualifying the Bonds for sale in the various states chosen by the Underwriter, all advertising expenses in connection with the public offering of the Bonds and all other expenses incurred by it in connection with its public offering and distribution of the Bonds, not described above.
Section 14. Notices. Any notice or other communication to be given to the Authority or the District under this Agreement may be given by delivering the same in writing at its address set forth on the first page of this Agreement, and any notice or other communication to be given to the Underwriter under this Agreement may be given by delivering the same in writing to the following: Stifel, Nicolaus & Company, Incorporated, 2121 Avenue of the Stars, Suite 2150, Los Angeles, California 90067, Attention: Sara Brown.
Section 15. Parties in Interest. This Agreement is made solely for the benefit of the Authority, the District and the Underwriter (including the successors or assigns of the Underwriter) and no other person, including any purchaser of the Bonds, shall acquire or have any right hereunder or by virtue hereof.
Section 16. Severability. In case any one or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof.
Section 17. Entire Agreement. This Agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes all oral statements, prior writings and representations with respect thereto.
Section 18. Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 19. Survival of Representations and Warranties. The representations and warranties of the Authority and the District in or made pursuant to this Agreement shall not be deemed to have been discharged, satisfied or otherwise rendered void by reason of the Closing or termination of this Agreement and regardless of any investigations made by or on behalf of the Underwriter (or statements as to the results of such investigations) concerning such representations and statements of the Authority and the District and regardless of delivery of and payment for the Bonds.
Section 20. Effectiveness. This Agreement shall become effective and binding upon the respective parties hereto upon the execution of the acceptance hereof by the Authority and the District and shall be valid and enforceable as of the time of such acceptance. [Signature Page Follows]
Section 21. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
Stifel, Nicolaus & Company, Incorporated
By:
Managing Director
San Marcos Public Financing Authority
By:
Authorized Officer
Time of Execution: _____ a.m./p.m. California time
CITY OF SAN MARCOS community
facilities district no. 99-01
By:
Authorized Officer
Time of Execution: _____ a.m./p.m. California time
EXHIBIT A
MATURITY SCHEDULE FOR THE BONDS
$[PAR]
SAN MARCOS PUBLIC FINANCING AUTHORITY
Special Tax Revenue Refunding Bonds, Series 2024A
Maturity Date
(September 1)
Principal Amount
Interest Rate
Yield
Initial Offering Price
10% Test Used
Hold-the- Offering-Price Rule Used
20__
$
%
%
______________
C Priced to first optional redemption date of ______ 1, 20__ at par.
T Term Bond.
REDEMPTION TERMS
FOR THE BONDS AND SPECIAL TAX REFUNDING BONDS
No Optional Redemption. The Bonds are not subject to optional redemption prior to maturity.
Mandatory Redemption of the Bonds from Principal Prepayments of the Special Tax Refunding Bonds. The Bonds are subject to redemption on any Interest Payment Date, prior to maturity, as a whole or in part from such maturities, as are selected by the Authority, from and to the extent of Principal Prepayments with respect to the Special Tax Refunding Bonds at the following redemption prices (expressed as percentages of the principal amount of the Bonds to be redeemed), together with accrued interest thereon to the date of redemption:
Redemption Date
Redemption Price
Any Interest Payment Date prior to March 1, 20__
103%
September 1, 20__ and March 1, 20__
102
September 1, 20__ and March 1, 20__
101
September 1, 20__ and any Interest Payment Date thereafter 100
The redemption of Special Tax Refunding Bonds may only be made from a prepayment of Special Taxes in the Improvement Areas. The Special Tax Refunding Bonds are not subject to optional or mandatory sinking fund redemption prior to maturity.
The principal amount of the Bonds to be redeemed from Principal Prepayments of the Special Tax Refunding Bonds will be the greatest principal amount of Bonds, the redemption price of which is less than or equal to such Principal Prepayments, as specified in a Written Request of the Authority delivered to the Trustee.
EXHIBIT B
MATURITY SCHEDULES FOR THE SPECIAL TAX REFUNDING BONDS
City of San Marcos Community Facilities District No. 99-01 Improvement Area A1 Special Tax Refunding Bonds, Series 2024
Maturity
(September 1)
Principal
Amount
Interest
Rate
Yield
Price
_________________
T: Term Bond.
City of San Marcos Community Facilities District No. 99-01 Improvement Area A2 Special Tax Refunding Bonds, Series 2024
Maturity
(September 1)
Principal
Amount
Interest
Rate
Yield
Price
_________________
T: Term Bond.
City of San Marcos Community Facilities District No. 99-01 Improvement Area B1 Special Tax Refunding Bonds, Series 2024
Maturity
(September 1)
Principal
Amount
Interest
Rate
Yield
Price
_________________
T: Term Bond.
City of San Marcos Community Facilities District No. 99-01 Improvement Area B2 Special Tax Refunding Bonds, Series 2024
Maturity
(September 1)
Principal
Amount
Interest
Rate
Yield
Price
_________________
T: Term Bond.
City of San Marcos Community Facilities District No. 99-01 Improvement Area C1 Special Tax Refunding Bonds, Series 2024
Maturity
(September 1)
Principal
Amount
Interest
Rate
Yield
Price
_________________
T: Term Bond.
City of San Marcos Community Facilities District No. 99-01 Improvement Area D1 Special Tax Refunding Bonds, Series 2024
Maturity
(September 1)
Principal
Amount
Interest
Rate
Yield
Price
_________________
T: Term Bond.
City of San Marcos Community Facilities District No. 99-01 Improvement Area F2/V2 Special Tax Refunding Bonds, Series 2024 Maturity
(September 1)
Principal
Amount
Interest
Rate
Yield
Price
_________________
T: Term Bond.
City of San Marcos Community Facilities District No. 99-01 Improvement Area G3 Special Tax Refunding Bonds, Series 2024
Maturity
(September 1)
Principal
Amount
Interest
Rate
Yield
Price
_________________
T: Term Bond.
City of San Marcos Community Facilities District No. 99-01 Improvement Area H1A Special Tax Refunding Bonds, Series 2024
Maturity
(September 1)
Principal
Amount
Interest
Rate
Yield
Price
_________________
T: Term Bond.
City of San Marcos Community Facilities District No. 99-01 Improvement Area H1B Special Tax Refunding Bonds, Series 2024
Maturity
(September 1)
Principal
Amount
Interest
Rate
Yield
Price
_________________
T: Term Bond.
City of San Marcos Community Facilities District No. 99-01 Improvement Area J Special Tax Refunding Bonds, Series 2024
Maturity
(September 1)
Principal
Amount
Interest
Rate
Yield
Price
_________________
T: Term Bond.
City of San Marcos Community Facilities District No. 99-01 Improvement Area M Special Tax Refunding Bonds, Series 2024
Maturity
(September 1)
Principal
Amount
Interest
Rate
Yield
Price
_________________
T: Term Bond.
City of San Marcos Community Facilities District No. 99-01 Improvement Area N1 Special Tax Refunding Bonds, Series 2024
Maturity
(September 1)
Principal
Amount
Interest
Rate
Yield
Price
_________________
T: Term Bond.
City of San Marcos Community Facilities District No. 99-01 Improvement Area N2 Special Tax Refunding Bonds, Series 2024
Maturity
(September 1)
Principal
Amount
Interest
Rate
Yield
Price
_________________
T: Term Bond.
City of San Marcos Community Facilities District No. 99-01 Improvement Area R1 Special Tax Refunding Bonds, Series 2024
Maturity
(September 1)
Principal
Amount
Interest
Rate
Yield
Price
_________________
T: Term Bond.
City of San Marcos Community Facilities District No. 99-01 Improvement Area R2 Special Tax Refunding Bonds, Series 2024
Maturity
(September 1)
Principal
Amount
Interest
Rate
Yield
Price
_________________
T: Term Bond.
City of San Marcos Community Facilities District No. 99-01 Improvement Area V1A Special Tax Refunding Bonds, Series 2024
Maturity
(September 1)
Principal
Amount
Interest
Rate
Yield
Price
_________________
T: Term Bond.
EXHIBIT C
SPECIAL TAX REFUNDING BONDS
City of San Marcos Community Facilities District No. 99-01 Improvement Area A1 Special Tax Refunding Bonds, Series 2024 in the initial principal amount of $[__]; City of San Marcos Community Facilities District No. 99-01 Improvement Area A2 Special Tax Refunding Bonds, Series 2024 in the initial principal amount of $[__]; City of San Marcos Community Facilities District No. 99-01 Improvement Area B1 Special Tax Refunding Bonds, Series 2024 in the initial principal amount of $[__]; City of San Marcos Community Facilities District No. 99-01 Improvement Area B2 Special Tax Refunding Bonds, Series 2024 in the initial principal amount of $[__]; City of San Marcos Community Facilities District No. 99-01 Improvement Area C1 Special Tax Refunding Bonds, Series 2024 in the initial principal amount of $[__]; City of San Marcos Community Facilities District No. 99-01 Improvement Area D1 Special Tax Refunding Bonds, Series 2024 in the initial principal amount of $[__]; City of San Marcos Community Facilities District No. 99-01 Improvement Area F2/V2 Special Tax Refunding Bonds, Series 2024 in the initial principal amount of $[__]; City of San Marcos Community Facilities District No. 99-01 Improvement Area G3 Special Tax Refunding Bonds, Series 2024 in the initial principal amount of $[__]; City of San Marcos Community Facilities District No. 99-01 Improvement Area H1A Special Tax Refunding Bonds, Series 2024 in the initial principal amount of $[__]; City of San Marcos Community Facilities District No. 99-01 Improvement Area H1B Special Tax Refunding Bonds, Series 2024 in the initial principal amount of $[__]; City of San Marcos Community Facilities District No. 99-01 Improvement Area J Special Tax Refunding Bonds, Series 2024 in the initial principal amount of $[__]; City of San Marcos Community Facilities District No. 99-01 Improvement Area M Special Tax Refunding Bonds, Series 2024 in the initial principal amount of $[__]; City of San Marcos Community Facilities District No. 99-01 Improvement Area N1 Special Tax Refunding Bonds, Series 2024 in the initial principal amount of $[__]; City of San Marcos Community Facilities District No. 99-01 Improvement Area N2 Special Tax Refunding Bonds, Series 2024 in the initial principal amount of $[__]; City of San Marcos Community Facilities District No. 99-01 Improvement Area R1 Special Tax Refunding Bonds, Series 2024 in the initial principal amount of $[__]; City of San Marcos Community Facilities District No. 99-01 Improvement Area R2 Special Tax Refunding Bonds, Series 2024 in the initial principal amount of $[__]; and City of San Marcos Community Facilities District No. 99-01 Improvement Area V1A Special Tax Refunding Bonds, Series 2024 in the initial principal amount of $[__].
EXHIBIT D
PRIOR SPECIAL TAX REFUNDING BONDS
The following are the Prior Special Tax Refunding Bonds:
$1,475,359.26 City of San Marcos Community Facilities District No. 99-01 Improvement Area A1 Special Tax Refunding Bonds, Series 2014. $1,562,336.46 City of San Marcos Community Facilities District No. 99-01 Improvement Area A2 Special Tax Refunding Bonds, Series 2014. $1,481,085.88 City of San Marcos Community Facilities District No. 99-01 Improvement Area B1 Special Tax Refunding Bonds, Series 2014. $1,266,764.81 City of San Marcos Community Facilities District No. 99-01 Improvement Area B2 Special Tax Refunding Bonds, Series 2014. $2,403,561.51 City of San Marcos Community Facilities District No. 99-01 Improvement Area C1 Special Tax Refunding Bonds, Series 2014. $1,293,335.80 City of San Marcos Community Facilities District No. 99-01 Improvement Area D1 Special Tax Refunding Bonds, Series 2014. $2,555,000.00 City of San Marcos Community Facilities District No. 99-01 Improvement Area F2/V2 Special Tax Refunding Bonds, Series 2014. $948,429.42 City of San Marcos Community Facilities District No. 99-01 Improvement Area G3 Special Tax Refunding Bonds, Series 2014. $1,029,351.34 City of San Marcos Community Facilities District No. 99-01 Improvement Area H1A Special Tax Refunding Bonds, Series 2014. $957,906.19 City of San Marcos Community Facilities District No. 99-01 Improvement Area H1B Special Tax Refunding Bonds, Series 2014. $3,715,000.00 City of San Marcos Community Facilities District No. 99-01 Improvement Area J Special Tax Refunding Bonds, Series 2014. $3,004,456.51 City of San Marcos Community Facilities District No. 99-01 Improvement Area M Special Tax Refunding Bonds, Series 2014. $1,856,315.82 City of San Marcos Community Facilities District No. 99-01 Improvement Area N1 Special Tax Refunding Bonds, Series 2014. $1,746,324.14 City of San Marcos Community Facilities District No. 99-01 Improvement Area N2 Special Tax Refunding Bonds, Series 2014. $1,937,773.71 City of San Marcos Community Facilities District No. 99-01 Improvement Area R1 Special Tax Refunding Bonds, Series 2014. $1,525,227.84 City of San Marcos Community Facilities District No. 99-01 Improvement Area R2 Special Tax Refunding Bonds, Series 2014. $2,185,000.00 City of San Marcos Community Facilities District No. 99-01 Improvement Area V1A Special Tax Refunding Bonds, Series 2014.
EXHIBIT E
$[PAR]
SAN MARCOS PUBLIC FINANCING AUTHORITY
Special Tax Revenue Refunding Bonds, Series 2024A
CERTIFICATE OF SPECIAL TAX CONSULTANT
30 Three Sixty Public Finance, Inc. (“Special Tax Consultant”), was retained as Special Tax Consultant and has reviewed the Rate and Method of Apportionment of Special Tax for each Improvement Area (each, a “Rate and Method”), copies of which are set forth in full in Appendix F to the Preliminary Official Statement dated [POS Date] (the “Preliminary Official Statement”) and Official Statement dated [Pricing Date] (the “Official Statement”) relating to the above-referenced bonds (the “Bonds”) being issued by the San Marcos Public Financing Authority (the “Authority”). Based upon the Special Tax Consultant’s review of the Preliminary Official Statement, the Official Statement and such other documents as it deems relevant in the circumstances, the Special Tax Consultant hereby certifies that, with respect to each series of Special Tax Refunding Bonds, the Special Tax on parcels within the applicable Improvement Area, if collected in the maximum amounts permitted under the applicable Rate and Method, would generate at least 110% of the gross annual debt service on such Special Tax Refunding Bonds, provided that the annual debt service figures on the debt service schedule attached hereto as Exhibit , which were relied upon by Special Tax Consultant, are substantially true and correct.
Although the Special Tax if collected in the maximum amounts under each Rate and Method will generate at least 110% of the gross annual debt service payable with respect to the Special Tax Refunding Bonds each year, no representation is made herein as to actual amounts that will be collected in future years.
All information with respect to each Rate and Method and all other information sourced to the Special Tax Consultant in the Preliminary Official Statement and the Official Statement is true and correct as of their respective dates and as of the date hereof, and a true and correct copy of each Rate and Method is attached to the Official Statement as Appendix F.
Capitalized terms used but not defined herein shall have the meanings given such terms in the Bond Purchase Agreement dated [Pricing Date], by and among the Authority, the City of San Marcos Community Facilities District No. 99-01, and Stifel, Nicolaus & Company, Incorporated.
Dated: [Closing Date]
30 THREE SIXTY PUBLIC FINANCE, INC.
By:
Authorized Representative
EXHIBIT F
$[PAR]
SAN MARCOS PUBLIC FINANCING AUTHORITY
Special Tax Revenue Refunding Bonds, Series 2024A
ISSUER CLOSING CERTIFICATE
I, the undersigned, hereby certify that I am the ____________ of the San Marcos Public Financing Authority (the “Authority”), and that as such, I am authorized to execute this Certificate on behalf of the Authority in connection with the issuance of the above-referenced bonds (the “Bonds”).
I hereby further certify on behalf of the Authority that:
(A) to my best knowledge, after reasonable inquiry, no litigation is pending with respect to which the Authority has been served with process or threatened (1) to restrain or enjoin the issuance of any of the Bonds or the collection of Revenues pledged under the Indenture; (2) in any way contesting or affecting the authority for the issuance of the Bonds or the validity or enforceability of the Bonds or the Authority Documents; or (3) in any way contesting the existence or powers of the Authority; (B) the representations and warranties made by the Authority in the Bond Purchase Agreement dated [Pricing Date] (the “Agreement”), among the Authority, the City of San Marcos Community Facilities District No. 99-01 (the “District”), and Stifel, Nicolaus & Company, Incorporated are true and correct in all material respects on the Closing Date, with the same effect as if made on the Closing Date; (C) no event affecting the Authority has occurred since the date of the Official Statement that, as of the Closing Date, would cause any statement or information contained in the Official Statement under the caption “CONCLUDING INFORMATION – No Litigation” to be incorrect or incomplete in any material respect or would cause the information contained under such caption in the Official Statement to contain an untrue statement of a material fact or omit to state a material fact necessary in order to make such statements therein, in the light of the circumstances under which they were made, not misleading; (D) as of the date hereof, the Authority Documents are in full force and effect in accordance with their terms and have not been amended, modified or supplemented except in such case as may have been agreed to by the Underwriter; and (E) the Authority has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under the Authority Documents prior to issuance of the Bonds.
Capitalized terms not defined herein shall have the same meaning set forth in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of the date herein below set forth.
Dated: [Closing Date]
SAN MARCOS PUBLIC FINANCING AUTHORITY
By:
Name:
Title:
EXHIBIT G
SAN MARCOS PUBLIC FINANCING AUTHORITY
Special Tax Revenue Refunding Bonds, Series 2024A
15c2-12 Certificate
I, the undersigned, hereby certify that I am the _____________ of the City of San Marcos (the “City”), the City Council of which is the legislative body for City of San Marcos Community Facilities District No. 99-01 (the “District”), a community facilities district duly organized and existing under the laws of the State of California (the “State”), and the _____________ of the San Marcos Public Financing Authority (the “Authority”), a joint powers authority duly organized and existing under the laws of the State, and that as such, am authorized to execute this Certificate on behalf of the Authority and the District in connection with the issuance of the above-referenced bonds (the “Bonds”). I further hereby certify on behalf of the Authority and the District as follows:
(1) This Certificate is delivered in connection with the offering and sale of the Bonds in order to enable the underwriter of the Bonds to comply with Rule 15c2-12 of the Securities Exchange Commission (“Rule 15c2-12”). (2) In connection with the offering and sale of the Bonds, there has been prepared a Preliminary Official Statement, setting forth information concerning the Bonds, the Special Tax Refunding Bonds (as defined in the Preliminary Official Statement), the Authority, the City and the District (the “Preliminary Official Statement”). (3) As used herein, “Permitted Omissions” shall mean the offering price(s), interest rate(s), selling compensation, aggregate principal amount, principal amount per maturity, delivery dates, ratings and other terms of the Bonds depending on such matters, all with respect to the Bonds. (4) The Preliminary Official Statement is, except for the Permitted Omissions, deemed final within the meaning of Rule 15c2-12.
IN WITNESS WHEREOF, I have hereunto set my hand as of [POS Date].
SAN MARCOS PUBLIC FINANCING AUTHORITY
By:
Name:
Title:
CITY OF SAN MARCOS COMMUNITY FACILITIES DISTRICT NO. 99-01 By: ________________________________
Name:
Title:
EXHIBIT H
$[PAR]
SAN MARCOS PUBLIC FINANCING AUTHORITY
Special Tax Revenue Refunding Bonds, Series 2024A
CERTIFICATE OF U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION The undersigned hereby states and certifies that the undersigned is an authorized officer of U.S. Bank Trust Company, National Association (the “Bank”), as (i) trustee (in such capacity, the “Trustee”) under that certain Indenture of Trust, dated as of [Month] 1, 2024 (the “Indenture”), between San Marcos Public Financing Authority (the “Authority”) and the Trustee relating to the captioned bonds (the “Bonds”), (ii) fiscal agent (in such capacity, the “Fiscal Agent”) under the Fiscal Agent Agreements, dated as of [Month] 1, 2024 (collectively, the “Fiscal Agent Agreements”), between the City of San Marcos Community Facilities District No. 99-01 (the “District”) and the Fiscal Agent relating to the Special Tax Refunding Bonds (the “Special Tax Refunding Bonds”), (iii) escrow bank, Trustee, Prior Fiscal Agent and Prior Trustee (in such capacities, the “Escrow Bank”) under that certain Escrow Deposit and Trust Agreement dated as of [Month] 1, 2024 (the “Escrow Agreement”), among the District, the Authority, and the Escrow Bank, and (iv) as dissemination agent (in such capacity, the “Dissemination Agent”) under that certain Continuing Disclosure Agreement, dated as of [Month] 1, 2024 (the “Continuing Disclosure Agreement”), between the District and the Dissemination Agent, and as such, is familiar with the following facts and is authorized and qualified to certify the following facts on behalf of the Trustee:
(1) The Bank is duly organized and existing as a national banking association under the laws of the United States of America, having the full power and authority to enter into and perform its duties under the Indenture, the Fiscal Agent Agreements, the Escrow Agreement and the Continuing Disclosure Agreement (collectively, the “Agreements”). (2) The Agreements have been duly authorized, executed and delivered by the Bank, and the Bonds and the Special Tax Refunding Bonds have been authenticated by a duly authorized representative of the Bank in accordance with the Indenture and the Fiscal Agent Agreements. (3) There is no action, suit, proceeding or investigation, at law or in equity, before or by any court or governmental agency, public board or body pending against the Bank or threatened against the Bank which in the reasonable judgment of the Bank would affect the existence of the Bank or in any way contesting or affecting the validity or enforceability of the Agreements, or contesting the powers of the Bank or its authority to enter into and perform its obligation thereunder.
Capitalized terms not defined herein have the same meaning as is set forth in the Bond Purchase Agreement dated [Pricing Date], by and among the Authority, the District, and Stifel, Nicolaus & Company, Incorporated, as underwriter, relating to the Bonds.
Dated: [Closing Date] U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee, Fiscal Agent and Escrow Bank
By
Authorized Officer
EXHIBIT I
$[PAR]
SAN MARCOS PUBLIC FINANCING AUTHORITY
Special Tax Revenue Refunding Bonds, Series 2024A
CERTIFICATE OF MUNICIPAL ADVISOR
The undersigned hereby states and certifies as follows:
(1) The undersigned is an authorized officer of Fieldman, Rolapp & Associates, Inc., which has acted as municipal advisor (the “Municipal Advisor”) to the San Marcos Public Financing Authority and the City of San Marcos Community Facilities District No. 99-01 in connection with the issuance of the above-referenced bonds (the “Bonds”), and as such, is familiar with the facts herein certified and is authorized and qualified to certify the same. (2) The Municipal Advisor has participated in the preparation of the Preliminary Official Statement dated [POS Date] and the Official Statement dated [Pricing Date] (the “Official Statement”) relating to the Bonds. (3) Nothing has come to the attention of the Municipal Advisor which would lead it to believe that the Preliminary Statement or the Official Statement contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading.
Dated: [Closing Date] FIELDMAN, ROLAPP & ASSOCIATES, INC., as Municipal Advisor By:
Authorized Officer
EXHIBIT J
$[PAR]
SAN MARCOS PUBLIC FINANCING AUTHORITY
Special Tax Revenue Refunding Bonds, Series 2024A
District CLOSING CERTIFICATE
I, the undersigned, hereby certify that I am the ____________ of the City of San Marcos (the “City”), the City Council of which is the legislative body for of San Marcos Community Facilities District No. 99-01 (the “District”), a community facilities district duly organized and existing under the laws of the State of California (the “State”), and that as such, I am authorized to execute this Certificate on behalf of the District in connection with the issuance of the above-referenced bonds (the “Bonds”).
I hereby further certify on behalf of the District that:
(A) no litigation is pending with respect to which the District has been served with process or, to the best of my knowledge, threatened (1) to restrain or enjoin the issuance of any of the Special Tax Refunding Bonds or the collection of Special Tax Revenues pledged under the Fiscal Agent Agreements; (2) in any way contesting or affecting the authority for the issuance of the Special Tax Refunding Bonds or the validity or enforceability of the Special Tax Refunding Bonds or the District Documents; or (3) in any way contesting the existence or powers of the District; (B) the representations and warranties made by the District in the Bond Purchase Agreement dated [Pricing Date] (the “Agreement”), among the San Marcos Public Financing Authority (the “Authority”), the District and Stifel, Nicolaus & Company are true and correct on the Closing Date, with the same effect as if made on the Closing Date; (C) no event affecting the District has occurred since the date of the Official Statement that, as of the Closing Date, would cause any statement or information contained in the Official Statement under the caption “CONCLUDING INFORMATION – No Litigation” to be incorrect or incomplete in any material respect or would cause the information contained under such caption in the Official Statement to contain an untrue statement of a material fact or omit to state a material fact necessary in order to make such statements therein, in the light of the circumstances under which they were made, not misleading; (D) as of the date hereof, the Formation Documents and the District Documents are in full force and effect in accordance with their terms and have not been amended, modified or supplemented; and (E) the District has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under the District Documents prior to issuance of the Special Tax Refunding Bonds.
Capitalized terms not defined herein shall have the same meaning set forth in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of the date herein below set forth.
Dated: [Closing Date]
CITY OF SAN MARCOS COMMUNITY FACILITIES DISTRICT NO. 99-01 By:
Name:
Title:
Exhibit K
SAN MARCOS PUBLIC FINANCING AUTHORITY
Special Tax Revenue Refunding Bonds, Series 2024A
ISSUE PRICE CERTIFICATE
The undersigned, on behalf of Stifel, Nicolaus & Company, Incorporated (“Stifel”) hereby certifies as set forth below with respect to the sale and delivery of the above-captioned obligations (the “Bonds”).
1. Sale of the General Rule Maturities. As of the date of this certificate, for each Maturity of the General Rule Maturities, the first price at which at least 10% of such Maturity was sold to the Public is the respective price listed in Schedule A.
2. Initial Offering Price of the Hold-the-Offering-Price Maturities. (a) Stifel offered the Hold-the-Offering-Price Maturities to the Public for purchase at the respective initial offering prices listed in Schedule A (the “Initial Offering Prices”) on or before the Sale Date. A copy of the pricing wire or equivalent communication for the Bonds is attached to this certificate as Schedule B. (b) As set forth in the Bond Purchase Agreement, dated [Pricing Date], by and among Stifel, as the Underwriter (as defined below), the City of San Marcos Community Facilities District No. 99-01 (the “District”) and the Authority (as defined below), Stifel has agreed in writing that: (i) for each Maturity of the Hold-the-Offering-Price Maturities, it would neither offer nor sell any of the Bonds of such Maturity to any person at a price that is higher than the Initial Offering Price for such Maturity during the Holding Period for such Maturity (the “hold-the-offering-price rule”); and (ii) any selling group agreement shall contain the agreement of each dealer who is a member of the selling group, and any third-party distribution agreement shall contain the agreement of each broker-dealer who is a party to the third-party distribution agreement, to comply with the hold-the-offering-price rule. Pursuant to such agreement, no Underwriter has offered or sold any Maturity of the Hold-the-Offering-Price Maturities at a price that is higher than the respective Initial Offering Price for that Maturity of the Bonds during the Holding Period.
3. Defined Terms.
(a) General Rule Maturities means those Maturities of the Bonds listed in Schedule A hereto as the “General Rule Maturities.” (b) Hold-the-Offering-Price Maturities means those Maturities of the Bonds listed in Schedule A hereto as the “Hold-the-Offering-Price Maturities.” (c) Holding Period means, with respect to a Hold-the-Offering-Price Maturity, the period starting on the Sale Date and ending on the earlier of (i) the close of the fifth business day after the Sale Date, or (ii) the date on which Stifel has sold at least 10% of such Hold-the-Offering-Price Maturity to the Public at prices that are no higher than the Initial Offering Price for such Hold-the-Offering-Price Maturity. (d) Authority means the San Marcos Public Financing Authority. (e) Maturity means Bonds with the same credit and payment terms. Bonds with different maturity dates, or Bonds with the same maturity date but different stated interest rates, are treated as separate maturities. (f) Public means any person (including an individual, trust, estate, partnership, association, company, or corporation) other than an Underwriter or a related party to an Underwriter. The term “related party” for purposes of this certificate generally means any two or more persons who have greater than 50 percent common ownership, directly or indirectly. (g) Sale Date means the first day on which there is a binding contract in writing for the sale of a Maturity of the Bonds. The Sale Date of the Bonds is [Pricing Date]. (h) Underwriter means: (i) any person that agrees pursuant to a written contract with the Authority and the District (or with the lead underwriter to form an underwriting syndicate) to participate in the initial sale of the Bonds to the Public; and (ii) any person that agrees pursuant to a written contract directly or indirectly with a person described in clause (i) of this paragraph to participate in the initial sale of the Bonds to the Public (including a member of a selling group or a party to a third-party distribution agreement participating in the initial sale of the Bonds to the Public).
The representations set forth in this certificate are limited to factual matters only. Nothing in this certificate represents Stifel’s interpretation of any laws, including specifically Sections 103 and 148 of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations thereunder. The undersigned understands that the foregoing information will be relied upon by the Authority and the District with respect to certain of the representations set forth in the Tax Certificate and with respect to compliance with the federal income tax rules affecting the Bonds, and by Best Best & Krieger LLP, Riverside, California, in connection with rendering its opinion that the interest on the Bonds is excluded from gross income for federal income tax purposes, the preparation of the Internal Revenue Service Form 8038-G, and other federal income tax advice that it may give to the Authority or the District from time to time relating to the Bonds. The certifications contained herein are not necessarily based on personal knowledge, but may instead be based on either inquiry deemed adequate by the undersigned or institutional knowledge (or both) regarding the matters set forth herein.
STIFEL, NICOLAUS & COMPANY, INCORPORATED
By:
Name:
Dated: [Closing Date]
SCHEDULE A
SALE PRICES OF THE GENERAL RULE MATURITIES AND INITIAL OFFERING PRICES OF THE HOLD-THE-OFFERING-PRICE MATURITIES (Attached)
SCHEDULE B
PRICING WIRE OR EQUIVALENT COMMUNICATION
(Attached)
-25-
F-1
G-1
H-1
I-1
J-2
K-2
K-1
K-3
K-3
S-1
A-2
B-8
D-2
C-1
D-1
E-1
G-2
Anzel Galvan Draft of 4/16/2024