HomeMy WebLinkAboutAgenda Report - February 2, 2005 K-04AGENDA ITEM 14-4
CITY OF LODI
COUNCIL COMMUNICATION
TM
AGENDA TITLE: Adopt resolution approving the California Statewide Communities Development
Authority Vehicle License Fee Gap Loan Financing Program application.
MEETING DATE: February 2, 2005
PREPARED B Y Finance Director
RECOMMENDED ACTION: Approve attached resolution for California Statewide Communities
DevelopmentAuthority Vehicle License Fee Gap Loan Financing.
BACKGROUND INFORMATION: The Council approved the application for financing at the January 5,
2005 meeting. The attached resolution formalizes the approval
previously given by the City Council. There is no liability to the City
of Lodi for the repayment of the debt used to finance the Vehicle
License Gap Loan to the State of California. It is anticipated that the
loan proceeds will not exceed $941,837. The interest rate to be used on this financing, which will be
settled at the time of sale (to take place later in the month), may fluctuate between now and that time. As
a consequence, the net proceeds are notfixed and will vary depending on the interest rate settled upon.
The stipulated minimum price (floor price) for this financing includes an interest rate set at 100 basis
points (1.00°/x) above the stated interest rate of 3.75%. The anticipated net proceeds from this financing
range between $941,837 and $925,942. The amount owed to the City of Lodi by the State of
California for Vehicle License Fees, which were held by the State to help resolve its budget challenges,
is $1,026,272. The difference between this $1,026,272 loan to the State of California and the net
proceeds anticipated from this financing amount, includes prepaid interest and other issuance costs
amounting to $84,434-$100,330. The proceeds from this financing will be used to offset the receivable
that was booked in fiscal year 2003-04 (approximately $596,000); and the additional amount of proceeds
($329,942) will be used to adjustthe beginningfund balancefor the General Fund in fiscal year 2004-05.
The Finance Director's recommendation to approve this financing is based on several factors including
the following:
1) If the financing is not done the City will not be repaid the Vehicle License Fees (VLF) until August
2006 at the earliest. There is some question as to whether the VLF will be repaid in 2006; and in
fact it may not be until 2008.
2) The interest rate at which the City is investingfunds continues to increase and will likely surpass
the prepaid interest cost on this financing over the course of the next three years. If the loan is not
repaid in 2006, the additional interest cost is absorbed through an insurance policy which the
lender is taking out in conjunction with the financing.
3) The positive effect on cash at this time is needed in order to help with ongoing cash flow needs.
APPROVED:
Blair King,cSfty Manaaer
councillcouncom/VLFProgromAp_doc
The City Attorney has reviewed the resolution and the attachments to the resolution and is satisfied as to
the appropriateness of the transaction.
FUNDING: The costs of issuance and the prepaid interest in the range of 3.75%-4.75%, will be taken
from the proceeds d! the debt There is no additional funding requirementfor this
financing.
,
J es R. Krieger
inance Director/Treasurer
CITY OF LODI, CALIFORNIA,
as Seller
and
CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENTAUTHORITY,
as Purchaser
PURCHASE AND SALE AGREEMENT
Dated March 2,2005
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DOCSSF1:795397.1
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TABLE OF CONTENTS
Page
DEFINITIONS AND INTERPRETATION ..................... ................................... I ............. 1
AGREEMENT TO SELL AND PURCHASE; CONDITIONS PRECEDENT ................ 2
PURCHASE PRICE ..............................................
REPRESENTATIONS AND WARRANTIES OF
REPRESENTATIONS AND WARRANTIES OF
COVENANTS OF THE SELLER ..........................
NOTICES OF BREACH ........................................
LIABILITY OF SELLER; INDEMNIFICATION.
LIMITATION ON LIABILITY .............................
THE SELLER'S ACKNOWLEDGMENT .............
NOTICES............................................................... .
AMENDMENTS....................................................
SUCCESSORS AND ASSIGNS ............................
THIRD PARTY RIGHTS ......................................
PARTIAL INVALIDITY .......................................
COUNTERPARTS .................................................
ENTIRE AGREEMENT .........................................
GOVERNING LAW ...............................................
.............. ...................... I ............. .... 3
IE PURCHASER .......................... 3
3E SELLER .................................. 3
....................................................... 5
....................................................... 7
....................................................... 7
....................................................... 7
—.............................................17
............................................... 8
....................................................... 8
...................................................... 8
....................................................... 8
....................................................... 8
...................................... I .......... ...... 8
.... ............ ............ I... ....................... 9
..................................................... 10
EXHIBIT AIDEFINITIONS.................................................................................................. A-1
EXHIBIT B 1— OPMON OF SELLER'S COUNSEL........................................................... B1,1
EXHIBIT B2 -BRIN GD 0 WN OPMCN OF SELLER'S COUNSEL ................................. B2-1
EXHIBIT C1 —CLEWS CERTIFICATE................................................... I ........... — ........... C 1-1
EXHIBIT C2 -SELLER CERTIFICATE............................................................................... C2-1
EXHIBIT C3 —BILL OF SALE AND BRINGD OWN CERTIFICATE ................................ C3-1
EXHIBIT D IRREVOCABLE INSTRUCTIONS TO CONTROLLER ................................ D-1
EXHIBIT E —RESERVED ..................... ...................................................... ..... —.................... E-1
EXHIBIT F — ESCROW INSTRUCTION LETTER................................................................. F-1
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DQCS5Ft:795397.1 I
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT, dated March 2, 2005 (this
"Ameement" ), is entered into by and between:
(1) CITY OF LODI, a municipal corporation of the State of California (the
"Seller"); and
(2) CALIFORNIA STATEWIDE COMMUNITIES. DEVELOPMENT
AUTHORITY, a joint exercise of powers authority organized and existing under the laws of the
State of California (the "Purchaser").
RECITALS
A. The Seller is the owner of the VLF Receivable (as defined below).
B. The Seller is willing to sell, and the Purchaser is willing to purchase, the
VLF Receivable upon the terms specified in this Agreement.
C. The Purchaser will issue its taxable and tax-exempt notes (the "Notes")
pursuant to an Indenture (the "Indenture"), between the Purchaser and Wells Fargo Bank,
National Association, as trustee (the "Trustee"), and will use a portion of the proceeds thereof to
purchase the VLF Receivable from the Seller.
D. The Purchaser will grant a security interest in such VLF Receivable to the
Trustee and each Credit Enhancer to secure the Notes.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
1. Definitions and Interpretation.
(a) For all purposes of this Agreement, except as otherwise expressly provided
herein or unless the context otherwise requires, capitalized terms not otherwise defined herein
shall have the meanings ascribed to such terms in Exhibit A attached hereto and which is
incorporated by reference herein.
(b) The words "hereof," "herein," "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement; section and exhibits references contained in this Agreement are
references to sections and exhibits in or to this Agreement unless otherwise specified; and the
term "including" shall mean "including without limitation."
(c) Any agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement, instrument or
statute as from time to time may be amended, modified or supplemented and includes (in the
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DOCSSF I :795397. I
case of agreements or instruments) references to all attachments and exhibits thereto and
instruments incorporated therein; and any references to a Person are also to its permitted
successors and assigns.
2. Agreement to Sell and Purchase: Conditions Precedent.
(a) The Seller agrees to sell, and the Purchaser agrees to purchase, on the Closing
Date, for cash paid by the Purchaser in an amount equal to the amount determined pursuant to
Section 3(a) (the "Final Purchase Price"), which shall be not less than $$952,942.00 (the
"Minimum Purchase Price"), all future right, title and interest of the Seller in and to the "VLF
Receivable" as defined in Section 6585(i) of the California Government Code (the "VLF
Receivable"), namely, the right to payment of moneys due or to become due to the Seller out of
funds payable in connection with vehicle license fees to a local agency pursuant to Section
10754.11 of the California Revenue and Taxation Code. The Purchaser shall pay the Final
Purchase Price by transferring such Final Purchase Price directly to the Seller.
(b) The performance by the Purchaser of its obligations hereunder shall be
conditioned upon:
(i) Transaction Counsel receiving on or before the date the Notes are sold (the
"Pricing Date"), to be held in escrow until the Closing Date and then
delivered to the Purchaser on the Closing Date, the following documents
duly executed by the Seller or its counsel, as applicable: (1) an opinion of
counsel to the Seller dated the Pricing Date in substantially the form
attached hereto as Exhibit B 1 (2) certificates dated the Pricing Date in
substantially the forms attached hereto as Exhibit C1 and Exhibit C2,
(3) irrevocable instructions to the Controller dated as of the Closing Date
in substantially the form attached hereto as Exhibit D, (4) this Agreement,
(5) a certified copy of the resolution of the Seller's City Council approving
this Agreement, the transactions contemplated hereby and the documents
attached hereto as exhibits, and (6) an escrow instruction letter in
substantially the form attached hereto as Exhibit F;
Transaction Counsel receiving on or before the Closing Date, (1) a
bringdown opinion of counsel to the Seller dated as of the Closing Rate in
substantially the form attached hereto as Exhibit B2, and (2) a bill of sale
and bringdown certificate of the Seller (the "Bill of Sale") in substantially
the form attached hereto as Exhibit C3: provided that the Purchaser may
waive in its sole discretion the requirements of Section 2(b)(ii)(1); and
the Purchaser issuing notes in an amount which will be sufficient to pay
the Final Purchase Price.
(c) The performance by the Seller of its obligations hereunder shall be
conditioned solely upon the Purchaser's payment of the Final Purchase Price as set forth in this
Agreement and no other act or omission on the part of the Purchaser or any other party shall
excuse the Seller from performing its obligations hereunder.
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D0055F1:795397. I 2
(d) The Final Purchase Price shall be an amount that satisfies the conditions of
Section of the Resolution referred to in Section2(b)(i)(5) above.
3. Conveyance of VLF Receivable and Payment of Final Purchase Price.
(a) Upon pricing of the Notes by the Purchaser, the Purchaser will inform the
Seller of the Final Purchase Price, which shall be an amount at least equal to the Minimum
Purchase Price, and which shall be determined by the Purchaser based on the final interest rates,
costs of credit enhancement and issuance and terms of the Notes. Upon pricing of the Notes, the
Purchaser shall deliver a certificate to the Seller indicating the Final Purchase Price to be paid to
the Seller on the Closing Date.
(b) In consideration of the payment and delivery by the Purchaser to the Seller of
the Final Purchase Price, the Seller agrees to (a) transfer, grant, bargain, sell, assign, convey, set
over and deliver to the Purchaser, absolutely and not as collateral security, without recourse
except as expressly provided herein, and the Purchaser agrees to purchase, accept and receive,
the VLF Receivable, and (b) assign to the Purchaser, to the extent permitted by law (as to which
no representation is made), all present or future rights, if any, of the Seller to enforce or cause the
enforcement of payment of the VLF Receivable pursuant to the Act and other applicable law.
4. Representations and Warranties of the Purchaser. The Purchaser represents
and warrants to the Seller that, as of the date hereof, (a) it is duly organized, validly existing and
in good standing under the laws of the State of California, (b) it has full power and authority to
enter into this Agreement and to perform its obligations hereunder, (c) neither the execution and
delivery by the Purchaser of this Agreement, nor the performance by the Purchaser of its
obligations hereunder, shall conflict with or result in a breach or default under any of its
organizational documents, any law, rule, regulation, judgment, order or decree to which it is
subject or any agreement or instrument to which it is a party, and (d) this Agreement, and its
execution, delivery and performance hereof have been duly authorized by it, and this Agreement
has been duly executed and delivered by it and constitutes its valid and binding obligation
enforceable against it in accordance with the terms hereof, subject to the effect of bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to
or affecting creditors' rights generally or the application of equitable principles in any
proceeding, whether at law or in equity.
5. Representations and Warranties of the Seller. The Seller hereby represents
and warrants to the Purchaser, as of the date hereof, as follows:
(a) The Seller is a municipal corporation validly existing under the laws and
constitution o f the State of California, with full power and authority to execute and deliver this
Agreement and to carry out its terms.
(b) The Seller has full power, authority and legal right to sell and assign the VLF
Receivable to the Purchaser and has duly authorized such sale and assignment to the Purchaser
by all necessary action; and the execution, delivery and performance by the Seller of this
Agreement has been duly authorized by the Seller by all necessary action.
Taxable
DOCSSFI :795397. I 3
(c) This Agreement has been, and as of the Closing Date the Bill of Sale will have
been, duly executed and delivered by the Seller and, assuming the due authorization, execution
and delivery of this Agreement by the Purchaser, constitutes a legal, valid and binding obligation
of the Seller enforceable in accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to
or affecting creditors' rights generally or the application of equitable principles in any
proceeding, whether at law or in equity.
(d) All approvals, consents, authorizations, elections and orders of or filings or
registrations with any governmental authority, board, agency or commission havingjurisdiction
which would constitute a condition precedent to, or the absence of which would adversely affect,
the sale by the Seller of the VLF Receivable or the performance by the Seller of its obligations
under the Resolution and the Transaction Documents and any other applicable agreements, have
been obtained and are in full force and effect.
(e) Insofar as it would materially adversely affect the Seller's ability to enter into,
carry out and perform its obligations under any or all of the Transaction Documents to which it is
a parry, or consummate the transactions contemplated by the same, the Seller is not in breach of
or default under any applicable constitutional provision, law or administrative regulation of the
State of California or the United States or any applicable judgment or decree or any loan
agreement, indenture, bond, note, resolution, agreement or other instrument to which it is a party
or to which it or any of its property or assets is otherwise subject, and, to the best of the
knowledge of the Seller, no event has occurred and is continuing which with the passage of time
or the giving of notice, or both, would constitute a default or an event of default under any such
instrument, and the adoption of the Resolution and the execution and delivery by the Seller of the
Transaction Documents to which it is a party, and compliance by the Seller with the provisions
thereof, under the circumstances contemplated thereby, do not and will not in any material
respect conflict with or constitute on the part of the Seller a breach of or default under any
agreement or other instrument to which the Seller is a party or by which it is bound or any
existing law, regulation, court order or consent decree to which the Seller is subject.
(0 To the best of the knowledge of the Seller, no action, suit, proceeding, inquiry
or investigation, at law or in equity, before or by any court, public board or body, is pending or
threatened in any way against the Seller affecting the existence of the Seller or the titles of its
City Council members or officers to their respective offices, or seeking to restrain or to enjoin
the sale of the VLF Receivable or to direct the application of the proceeds of the sale thereof, or
in any way contesting or affecting the validity or enforceability of any of the Transaction
Documents or any other applicable agreements or any action of the Seller contemplated by any
of said documents, or in any way contesting the powers of the Seller or its authority with respect
to the Resolution or the Transaction Documents to which the Seller is a party or any other
applicable agreement, or any action on the part of the Seller contemplated by the Transaction
Documents, or in any way seeking to enjoin or restrain the Seller from selling the VLF
Receivable or which if determined adversely to the Seller would have an adverse effect upon the
Seller's ability to sell the VLF Receivable, nor to the knowledge of the Seller is there any basis
therefor.
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DOCSSF1:795397.1 4
(g) Prior to the sale of the VLF Receivable to the Purchaser, the Seller was the
sole owner of the VLF Receivable, and has such right, title and interest as provided in the Act.
From and after the conveyance of the VLF Receivable by the Seller to Purchaser on the Closing
Date, the Seller shall have no interest in the VLF Receivable. Except as provided in this
Agreement, the Seller has not sold, transferred, assigned, set over or otherwise conveyed any
right, title or interest of any kind whatsoever in all or any portion of the VLF Receivable, nor has
the Seller created, or to the knowledge of the Seller permitted the creation of, any lien, pledge,
security interesf or any other encumbrance (a "Lien") thereon. Prior to the sale of the VLF
Receivable to the Purchaser, the Seller held title to the VLF Receivable free and clear of any
Liens. As of the Closing Date, this Agreement, together with the Bill of Sale, constitutes a valid
sale to the Buyer of the Seller's right, title and interest in and to the VLF Receivable.
(h) The Seller acts solely through its authorized officers or agents.
(i) The Seller maintains records and books of account separate from those of the
Purchaser.
6) The Seller maintains its respective assets separately from the assets of the
Purchaser (including through the maintenance of separate bank accounts); the Seller's funds and
assets, and records relating thereto, have not been and are not commingled with those of the
Purchaser.
(k) The Seller's principal place of business and chief executive office is located at
221 W. Pine Street, Lodi, CA 95241.
(1) The Seller has received reasonably equivalent value for the VLF Receivable.
(m)The Seller does not act as an agent of the Purchaser in any capacity, but
instead presents itself to the public as an entity separate from the Purchaser.
(n) The Seller has not guaranteed and shall not guarantee the obligations of the
Purchaser, nor shall it hold itself out or permit itself to be held out as having agreed to pay or as
being liable for the debts of the Purchaser; and the Seller has not received nor shall the Seller
accept any credit or financing from any Person who is relying upon the availability of the assets
of the Purchaser to satisfy the claims of such creditor.
(o) All transactions between or among the Seller, on the one hand, and the
Purchaser on the other hand (including, without limitation, transactions governed by contracts for
services and facilities, such as payroll, purchasing, accounting, legal and personnel services and
office space), whether existing on the date hereof or entered into after the date hereof, shall be on
terms and conditions (including, without limitation, terms relating to amounts to be paid
thereunder) which are believed by each such parry thereto to be both fair and reasonable and
comparable to those available on an arms -length basis from Persons who are not affiliates.
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DOCSSFI :795397.1
6. Covenants of the Seller.
(a) The Seller shall not take any action or omit to take any action which adversely
affect the interests of the Purchaser in the VLF Receivable and in the proceeds thereof. The
Seller shall not take any action or omit to take any action that shall adversely affect the ability of
the Purchaser, and any assignee of the Purchaser, to receive payments made under the Act.
(b) The Seller shall not take any action or omit to take any action that would
impair the validity or effectiveness of the Act, nor, without the prior written consent of the
Purchaser or its assignee, amend, modify, terminate, waive or surrender, or agree to any
amendment, modification, termination, waiver or surrender of, the terms of the Act, or waive
timely performance or observance under the Act, in each case if the effect thereof would be
materially adverse to the Purchaser or to the Noteholders or any Credit Enhancer as assignees of
the Purchaser. Nothing in this agreement shall impose a duty on the Seller to seek to enforce the
Act or to seek enforcement thereof by others, or to prevent others from modifying, terminating,
discharging or impairing the validity or effectiveness of the Act.
(c) Upon request of the Purchaser or its assignee, (i) the Seller shall execute and
deliver such further instruments and do such further acts (including being named as a plaintiff in
an appropriate proceeding) as may be reasonably necessary or proper to carry out more
effectively the purposes and intent of this Agreement, and (ii) the Seller shall take all actions
necessary to preserve, maintain and protect the title of the Purchaser to the VLF Receivable,
provided that such acts shall not impose any additional cost on the Seller that is not reimbursed.
(d) On or before the Closing Date, the Seller shall send (or cause to be sent) an
irrevocable instruction to the Controller pursuant to Section 6588.5(c) of California Government
Code to cause the Controller to disburse all payments of the VLF Receivable to the Trustee,
together with notice of the sale of the VLF Receivable to the Purchaser and the assignment of all
or a portion of such assets by the Purchaser to the Trustee. Such notice and instructions shall be
in the form of Exhibit D hereto. The Seller shall not take any action to revoke or which would
have the effect of revoking, in whole or in part, such instructions to the Controller. The Seller
hereby relinquishes and waives any control over the VLF Receivable, any authority to collect the
VLF Receivable, and any power to revoke or amend the instructions to the Controller
contemplated by this paragraph. The Seller shall not rescind, amend or modify the instruction
described in the first sentence of this paragraph. The Seller shall cooperate with the Purchaser or
its assignee in giving instructions to the Controller if the Purchaser or its assignee transfers the
VLF Receivable. In the event that the Seller receives any proceeds of the VLF Receivable, the
Seller shall hold the same in trust for the benefit of the Purchaser and the Trustee and each Credit
Enhancer, as assignees of the Purchaser, and shall promptly remit the same to the Trustee.
(e) The Seller hereby covenants and agrees that it will not at any time institute
against the Purchaser, or j oin in instituting against the Purchaser, any bankruptcy, reorganization,
arrangement, insolvency, liquidation, or similar proceeding under any United States or state
bankruptcy or similar law.
(f) The financial statements and books and records of the Seller prepared after the
Closing Date shall reflect the separate existence of the Purchaser.
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DOCSSFI:795397.I 6
(g) The Seller shall treat the sale of the VLF Receivable as a sale for regulatory
and accountingpurposes.
(h) From and after the date of this Agreement, the Seller shall not sell, transfer,
assign, set over or otherwise convey any right, title or interest of any kind whatsoever in all or
any portion of the VLF Receivable, nor shall the Seller create, or to the knowledge of the Seller
permit the creation of, any Lien thereon.
7. Notices of Breach.
(a) Upon discoveryby the Seller or the Purchaser that the Seller has breached any
of its covenants or that any of the representations or warranties of the Seller or the Purchaser are
materially false or misleading, in a manner that materially and adversely affects the value of the
VLF Receivable, the discovering party shall give prompt written notice thereof to the other party
and to the Trustee, as assignee of the Purchaser, who shall, pursuant to the Indenture, promptly
thereafter notify each Credit Enhancer and the Rating Agencies.
(b) The Seller shall not be liable to the Purchaser, the Trustee, the Noteholders, or
any Credit Enhancer for any loss, cost or expense resulting solely from the failure of the Trustee,
any Credit Enhancer or the Purchaser to promptly notify the Seller upon the discovery by an
authorized officer of the Trustee, any Credit Enhancer or the Purchaser of a breach of any
covenant or any materially false or misleading representation or warranty contained herein.
8. Liability of Seller: Indemnification. The Seller shall be liable in accordance
herewith only to the extent of the obligations specifically undertaken by the Seller under this
Agreement. The Seller shall indemnify, defend and hold harmless the Purchaser, the Trustee and
each Credit Enhancer, as assignees of the Purchaser, and their respective officers, directors,
employees and agents from and against any and all costs, expenses, losses, claims, damages and
liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or
was imposed upon any such Person by the Seller's breach of any of its covenants contained
herein or any materially false or misleading representation or warranty of the Seller contained
herein. Notwithstanding anything to the contrary herein, the Seller shall have no liability for the
payment of the principal of or interest on the Notes issued by the Purchaser.
9. Limitation on Liability.
(a) The Seller and any officer or employee or agent of the Sellermay rely in good
faith on the advice of counsel or on any document of any kind, prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Seller shall not be under
any obligation to appear in, prosecute or defend any legal action regarding the Act that is
unrelated to its specific obligations under this Agreement.
(b) No officer or employee of the Seller shall have any liability for the
representations, warranties, covenants, agreements or other obligations of the Seller hereunder or
in any of the certificates, notices or agreements delivered pursuant hereto, as to all of which
recourse shall be had solely to the assets of the Seller.
Taxable
DOCSSFI :795397.1 7
10. The Seller's Acknowiedunent. The Seller hereby agrees and acknowledges
that the Purchaser intends to assign and grant a security interest in all or a portion of (a) its rights
hereunder and (b) the VLF Receivable, to the Trustee and each Credit Enhancer pursuant to the
Indenture. The Seller further agrees and acknowledges that the Trustee, the Noteholders, and
each Credit Enhancer have relied and shall continue to rely upon each of the foregoing
representations, warranties and covenants, and further agrees that such Persons are entitled so to
rely thereon. Each of the above representations, warranties and covenants shall survive any
assignment and grant of a security interest in all or a portion of this Agreement or the VLF
Receivable to the Trustee and each Credit Enhancer and shall continue in full force and effect,
notwithstanding any subsequent termination of this Agreement and the other transaction
documents. The above representations, warranties and covenants shall inure to the benefit of the
Trustee and each Credit Enhancer.
11. Notices. All demands upon or, notices and communications to, the Seller, the
Purchaser, the Trustee or the Rating Agencies under this Agreement shall be in Writing,
personally delivered or mailed by certified mail, return receipt requested, to such party at the
appropriate notice address, and shall be deemed to have been duly given upon receipt.
12. Amendments. This Agreement may be amended by the Seller and the
Purchaser, with (a) the consent of the Trustee, (b) the consent of each Credit Enhancer, and (c) a
Rating Agency Confirmation, but without the consent of any of the Noteholders, for the purpose
of adding any provisions to or changing in any manner or eliminating any of the provisions of
this Agreement.
Promptly after the execution of any such amendment, the Purchaser shall furnish
written notification of the substance of such amendment to the Trustee and to the Rating
Agencies.
13. Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the Seller, the Purchaser and their respective successors and permitted assigns.
The Seller may not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of the Purchaser. Except as specified herein, the Purchaser may
not assign or transfer any of its rights or obligations under this Agreement without the prior
written consent of the Seller.
14. Third Party Rights. The Trustee and each Credit Enhancer are express and
intended third party beneficiaries under this Agreement. Nothing expressed in or to be implied
fran this Agreement is intended to give, or shall be construed to give, any Person, other than the
parties hereto, the Trustee and each Credit Enhancer, and their permitted successors and assigns
hereunder, any benefit or legal or equitable right, remedy or claim under or by virtue of this
Agreement or under or by virtue of any provision herein.
15. Partial Invalidity. If at any time any provision of this Agreement is or
becomes illegal, invalid or unenforceable in any respect under the law of anyjurisdiction, neither
the legality, validity or enforceability of the remaining provisions of this Agreement nor the
legality, validity or enforceability of such provision under the law of any otherjurisdiction shall
in any way be affected or impaired thereby.
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DOCSSF1:7953.97.1 8
16. Counterparts. This Agreement may be executed in any number of identical
counterparts, any set of which signed by all the parties hereto shall be deemed to constitute a
complete, executed original for all purposes.
17. Entire Agreement. This Agreement sets forth the entire understanding and
agreement of the parties with respect to the subject matter hereof and supersedes any and all oral
or written agreements or understandings between the parties as to the subject matter hereof.
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DOCSSFI:795397.1 9
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Purchase and Sale Agreement to be duly executed as of the date first written above.
CITY OF LODI, as Seller
By:
Authorized Officer
CALIFURM STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY, as Purchaser
By:
Member
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D0053Fi :795397.1 10
EXHIBIT A
DEFINITIONS
For all purposes of this Agreement, except as otherwise expressly provided herein
or unless the context otherwise requires, capitalized terms not otherwise defined herein shall
have the meanings set forth below.
"Act" means Section 10754.11 of the California Revenue and Taxation Code.
"Bill of Sale" has the meaning give to that term in Section 2(b)(ii) hereof.
"Credit Enhancer" means any municipal bond insurance company, bank or other
financial institution or organization which is performing in all material respects its obligations
under any Credit Support Instrument for some or all of the Notes.
"Credit Support Instrument" means a policy of insurance, a letter of credit, a
stand-by purchase agreement, revolving credit agreement or other credit arrangement pursuant to
which a Credit Enhancer provides credit or liquidity support with respect to the payment of
interest, principal or the purchase price of the Notes.
"Closing Date" means the date the Notes are issued.
"Controller" means the Controller of the State.
"Final Purchase Price" has the meaning ascribed thereto in Section 2.
"Minimum Purchase Price" has the meaning ascribed thereto in Section 2.
"Noteholder" means, with respect to any Note, the person in whose name such
Note is registered.
"Oustanding" has the meaning given to that term in the Indenture
"Pricing Date" means the date the Notes are sold.
"Rating Agency" means any nationally recognized rating agency then providing
or maintaining a rating on the Notes at the request of the Purchaser.
"Rating Agency Confirmation" means written confirmation from each Rating
Agency that any proposed action will not, in and of itself, cause the Rating Agency to lower,
suspend or withdraw the rating then assigned by such Rating Agency to any Outstanding Notes.
"Resolution" means the resolution adopted by the City Council approving the sale
of the VLF Receivable.
"State" means the State of California,
"Transaction Counsel" means Orrick, Hemngton & Sutcliffe LLP.
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DOCSSF 1:795397.1 A-1
"Transaction Documents" mean this Agreement, the Bill of Sale, the Indenture,
and the Notes.
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DOCSSFI :795397.! A-2
EXHIBIT BI
OPINION OF COUNSEL
to
CITY OF LODI
March 2,2005
California Statewide Communities Development Authority
Sacramento, California
Wells Fargo Bank, National Association
Los Angeles, California
Re: Sale of VLF Receivable
Ladies & Gentlemen:
This Office acted as counsel for the City of Lodi (the "Seller") in connection with
the adoption of that certain resolution (the "Resolution") of the City Council of the Seller (the
"Governing Body") pursuant to which the Seller authorized the sale to the California Statewide
Communities Development Authority (the "Purchaser") of the Seller's "VLF Receivable", as
defined in and pursuant to the Purchase and Sale Agreement dated March 2, 2005 (the "Sale
Agreement'? between the Seller and the Purchaser. In connection with these transactions, the
Seller has issued certain Irrevocable Instructions For Disbursement of the Seller's VLF
Receivable to the Controller of the State of California (the "Disbursement Instructions" and
collectively with the Sale Agreement, the "Transaction Documents"). Unless the context
otherwise requires, capitalized terms used but not otherwise defined herein shall have the
meanings given to such terms in the Sale Agreement.
I have examined and an familiar with those documents relating to the existence,
organization, and operation of the Seller, the Resolution, the Transaction Documents and such
certified proceedings, certifications of officers of the Seller and others, and such other
agreements, instruments and documents, and have satisfied myself as to such other matters, as I
deem necessary in order to render the following opinions.
Based upon the foregoing, I am of the opinion that:
1. The Seller is a municipal corporation of the State of California, duly
organized and validly existing pursuant to laws and the Constitution of the State of California.
2. The Seller has full power and authority to adopt the Resolution and to execute
and deliver the Transaction Documents.
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DOCSSFI :795397.I BI-]
3. The Seller has duly authorized and executed the Transaction Documents and,
assuming delivery, each Transaction Document will be legal, valid, and binding against the
Seller, and enforceable against the Seller in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
laws relating to or affecting creditors' rights, and the application of equitable principles and the
exerciseofjudicial discretion in appropriate areas.
4. The Resolution was duly adopted at a meeting of the Governing Body which
was called and held pursuant to law with all public notice required by law and at which a quorum
was present and acting when the Resolution was adopted.
5. The Resolution is in full force and effect and has not been amended, modified,
supplemented or rescinded.
6. To the best of my knowledge, no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, public board or body, is pending or
threatened in any way against the Seller affecting the existence of the Seller or the titles of its
Governing Body members or officers to their respective offices, or seeking to restrain or to
enjoin the sale of the VLF Receivable or to direct the application of the proceeds of the sale
thereof, or in any way contesting or affecting the validity or enforceability of the Resolution, the
Transaction Documents or any other applicable agreements or any action of the Seller
contemplated by any of said documents, or in any way contesting the powers of the Seller or its
authority with respect to the Resolution or the Transaction Documents or any other applicable
agreement, or any action on the part of the Seller contemplated by any of said documents, or in
any way seeking to enjoin or restrain the Seller from selling the VLF Receivable or which if
determined adversely to the Seller would have a material and adverse effect upon the Seller's
ability to sell the VLF Receivable, nor to my knowledge is there any basis therefor.
7. Insofar as it would materially adversely affect the Seller's ability to enter into,
carry out and perform its obligations under any or all of the foregoing agreements, or
consummate the transactions contemplated by the same, the Seller is not in breach of or default
under any applicable constitutional provision, law or administrative regulation of the State or the
United States or any applicablejudgment or decree or any loan agreement, indenture, bond, note,
resolution, agreement or other instrument to which it is a party or to which it or any of its
property or assets is otherwise subject, and, to the best of my knowledge, no event has occurred
and is continuing which with the passage of time or the giving of notice, or both, would
constitute a default or an event of default under any such instrument, and the adoption of the
Resolution and the execution and delivery by the Seller of the Transaction Documents, and
compliance with the provisions thereof, under the circumstances contemplated thereby, do not
and will not in any material respect conflict with or constitute on the part of the Seller a breach
of or default under any agreement or other instrument to which the Seller is a party or by which
it is bound or any existing law, regulation, court order or consent decree to which the Seller is
subject.
8. Prior to the sale of the VLF Receivable to the Purchaser, the Seller was the
sole owner of the VLF Receivable, and has such right, title and interest as provided in the Act.
From and after the conveyance of the VLF Receivable by the Seller to Purchaser on the Closing
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DOCSSFI :795397.1 BI -2
Date, the Seller shall have no interest in the VLF Receivable. Except as provided in the Sale
Agreement, the Seller has not sold, transferred, assigned, set over or otherwise conveyed any
right, title or interest of any kind whatsoever in all or any portion of the Seller's VLF Receivable,
nor has the Seller created, or to my knowledge permitted the creation of, any Lien thereon. Prior
to the sale of the VLF Receivable to the Purchaser, the Seller held title to the VLF Receivable
free and clear of any Liens.
9. To the best of my knowledge, all approvals, consents, authorizations, elections
and orders of or filings or registrations with any governmental authority, board, agency or
commission having jurisdiction which would constitute a condition precedent to, or the absence
of which would materially adversely affect, the sale by the Seller of the VLF Receivable or the
performance by the Seller of its obligations under the Resolution and the Transaction Documents
and any other applicable agreements, have been obtained and are in full force and effect.
10. The Disbursement Instructions are irrevocable by the Seller, and comply with
the requirements of Section 65 8 8.5 (c) of the California Government Code.
Each Credit Enhancer, the underwriters of the Notes and Transaction Counsel
may rely upon this legal opinion as if it were addressed to them.
Very truly yours,
Seller's Counsel
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DOCssFI :795W.1 B 1-3
EXHIBIT B2
OPINION OF COUNSEL
to
CITY OF LODI
[ClosingDate]
California Statewide Communities Development Authority
Sacramento, California
Wells Fargo Bank, National Association
Los Angeles, California
Re: Sale of VLF Receivable (Brin2down Opinion)
Ladies & Gentlemen:
Pursuant to that certain Purchase and Sale Agreement dated March 2, 2005 (the
"Sale Agreement") between the City of Lodi (the "Seller") and the California Statewide
Communities Development Authority (the "Purchaser"), this Office delivered an opinion (the
"Opinion'? dated the Pricing Date (as defined in the Sale Agreement) as counsel for the Seller in
connection with the sale of the Seller's VLF Receivable (as defined in the Sale Agreement), the
execution of documents related thereto and certain other related matters.
I confirm that you may continue to rely upon the Opinion as if it were dated as of
the date hereof. Each Credit Enhancer, the underwriters of the Notes and Transaction Counsel
may rely upon this legal opinion as if it were addressed to them. This letter is delivered to you
pursuant to Section2(b)(ii)(1) of the Sale Agreement.
Very truly yours,
Seller's Counsel
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DOCSSF I:795397.1 B2-1
EXHIBIT C1
CLERK'S CERTIFICATE
CERTIFICATE OF THE
CITY CLERK OF
CITY OF LODI, CALIFORNIA
Dated: March 2,2005
The undersigned City Clerk of the City of Lodi, California, do hereby certify that the
foregoing is a full, true and correct copy of Resolution No. duly adopted at a
regular meeting of the City Council of said Seller duly and regularly and legally held at the
regular meeting place thereof on the day of , 2005, of which
meeting all of the members of said City Council had due notice and at which all members thereof
were present, and that at said meeting said resolution was adopted by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN.
I do hereby further certify that I have carefully compared the same with the original
minutes of said meeting on file and of record in my office and that said resolution is a full, true
and correct copy of the original resolution adopted at said meeting and entered in said minutes
and that said resolution has not been amended, modified or rescinded since the date of its
adoption and the same is now in full force and effect.
I do hereby further certify that an agenda of said meeting was posted at least 72 hours
before said meeting at a location in the City of Lodi, California freely accessible to members of
the public, and abrief general description of saidresolution appeared on said agenda.
WITNESS my hand as of the day and year first above written.
0
City Clerk of the City of Lodi, California
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DOCSSFi:795397.1 C1-1
EXHIBIT C2
SELLER CERTIFICATE
SELLER CERTIFICATE
Dated: March 2,2005
We, the undersigned officers of the City of Lodi (the "Seller"), State of
California, holding the respective offices herein below set opposite our signatures, do hereby
certify that on the date hereof the following documents (the "Transaction Documents") were
officially executed and delivered by the Authorized Officer or Officers whose names appear on
the executed copies thereof, to wit:
Document
1. Purchase and Sale Agreement, dated March 2,2005 (the "Sale
Agreement"), between the Seller and the California Statewide
Communities Development Authority (the "Purchaser")
2. Irrevocable Instructions For Disbursement of Seller's VLF
Receivable to the Controller of the State of California dated the
ClosingDate
Capitalized terms used herein and not defined herein shall have the meaning given
such terms in the Sale Agreement.
We further certify as follows:
1. At the time of signing the Transaction Documents and the other documents and opinions
related thereto, we held said offices, respectively, and we now hold the same.
2. The representations and warranties contained in the Transaction Documents are true and
correct as of the date hereof in all material respects.
3. The City Council duly adopted its resolution (the "Resolution") approving the sale of the
Seller's VLF Receivable at a meeting of the City Council which was duly called and held
pursuant to law with all public notice required by law and at which a quorum was present and
acting when the Resolution was adopted, and such Resolution is in full force and effect and
has not been amended, modified, supplemented or rescinded.
4. To the best knowledge of the undersigned, no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, public board or body, is pending or
threatened, in any way against the Seller affecting the existence of the Seller or the titles of
its City Council members or officers to their respective offices, or seeking to restrain or to
enjoin the sale of the Seller's VLF Receivable or to direct the application thereof of the
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WCSSFI:795397.1 c2-1
proceeds of the sale thereof, or in any way contesting or affecting the validity or
enforceability of the Resolution, the Transaction Documents, the Indenture, the Notes, or any
other applicable agreements or any action of the Seller contemplated by any of said
documents, or in any way contesting the powers of the Seller or its authority with respect to
the Resolution or the Transaction Documents or any other applicable agreement, or any
action on the part of the Seller contemplated by any of said documents, or which if
determined adversely to the Seller would have a material and adverse effect upon the Seller's
ability to sell the Seller's VLF Receivable, nor to our knowledge is there any basis therefor.
5. Insofar as it would materially adversely affect the Seller's ability to enter into, carry out and
perform its obligations under any or all of the Transaction Documents, or consummate the
transactions contemplated by the same, the Seller is not in breach of or default under any
applicable constitutionalprovision, law or administrative regulation of the State of California
or the United States or any applicablejudgment or decree or any loan agreement, indenture,
bond, note, resolution, agreement or other instrument to which it is a party or to which it or
any of its property or assets is otherwise subject, and, to the best of our knowledge, no event
has occurred and is continuing which with the passage of time or the giving of notice, or
both, would constitute a default or an event of default under any such instrument, and the
adoption of the Resolution and the execution and delivery by the Seller of the Transaction
Documents, and compliance by the Seller with the provisions thereof, under the
circumstances contemplated thereby, do not and will not in any material respect conflict with
or constitute on the part of the Seller a breach of or default under any agreement or other
instrument to which the Seller is a party or by which it is bound or any existing law,
regulation, court order or consent decree to which the Seller is subject.
6. Prior to the sale of the VLF Receivable to the Purchaser, the Seller was the sole owner of the
VLF Receivable, and has such right, title and interest as provided in the Act. From and after
the conveyance of the VLF Receivable by the Seller to Purchaser on the Closing Date, the
Seller shall have no interest in the VLF Receivable. Except as provided in the Sale
Agreement, the Seller has not sold, transferred, assigned, set over or otherwise conveyed any
right, title or interest of any kind whatsoever in all or any portion of the Seller's VLF
Receivable, nor has the Seller created, or to our knowledge permitted the creation of, any
Lien thereon. Prior to the sale of the VLF Receivable to the Purchaser, the Seller held title to
the VLF Receivable free and clear of any Liens.
7. All approvals, consents, authorizations, elections and orders of or filings or registrations with
any governmental authority, board, agency or commission having jurisdiction which would
constitute a condition precedent to or the absence of which would materially adversely affect,
the sale by the Seller of the Seller's VLF Receivable or the performance by the Seller of its
obligations under the Resolution and the Transaction Documents and any other applicable
agreements, have been obtained and are in full force and effect.
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DpCSSFi:795397.1 c2-2
Dated as of the date first above Written.
Name. Official Title
James R. Krueger, Finance Director/Treasurer
Janet Keeter, Interim City Manager
Susan Blackston, City Clerk
genuine.
Sim
/ •- R Y
I HEREBY CERTIFY that the signatures of the officers named above are
Dated as of the date first above w±t ben.
LIN
City Clerk of the City of Lodi, California
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DOCSSFi:795397.1 C2-3
EXHIBIT C3
BILL OF SALE AND BRINGDOWN CERTIFICATE
BILL OF SALE AND BRINGDOWN CERTIFICATE
In consideration of the payment and delivery by the California Statewide
Communities Development Authority (the "Purchaser'? to the undersigned (the "Seller") of
$[Final Purchase Price] (the "Final Purchase Price"), and pursuant to terms and conditions of the
Purchase and Sale Agreement (the "Sale Agreement"), dated March 2, 2005, between the Seller
and the Purchaser, the Seller does hereby (a) transfer, grant, bargain, sell, assign, convey, set
over and deliver to the Purchaser, absolutely and not as collateral security, without recourse
except as expressly provided in the Sale Agreement, the VLF Receivable as defined in the Sale
Agreement (the "VLF Receivable"), and (b) assign to the Purchaser, to the extent permitted by
law (as to which no representation is made), all present or future rights, if any, of the Seller to
enforce or cause the enforcement of payment of the VLF Receivable pursuant to the Act (as
defined in the Sale Agreement) and other applicable law.
The Seller hereby acknowledges receipt of the Final Purchase Price.
The Seller hereby certifies that the representations and warranties of the Seller set
forth in the Certificate of the City Clerk dated March 2, 2005, the Seller Certificate dated March
2,2005, and in the Transaction Documents (as such terms are defined in the Sale Agreement) are
true and correct in all material respects as of the date hereof (except for such representations and
warranties made as of a specified date, which are true and correct as of such date).
Dated: Closing Date]
CITY OF LODI
Authorized Officer
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DOC'SSF1:795397.1 C3-1
1*14isI11.11 WE
IRREVOCABLE INSTRUCTIONS TO CONTROLLER
IRREVOCABLE INSTRUCTIONS FOR DISBURSEMENT
OF VLF RECEIVABLE OF
CITY OF LODI
2005
Office of the Controller
State of California
P.O. Box 942850
Sacramento, California 94250-5872
Re: Notice of Sale of VLF Receivable by the City of Lodi and
Wiring Instructions Information Form
Dear Sir or Madam;
Pursuant to Section 6588.5(c) of the California Government Code, City of Lodi
(the "Seller") hereby notifies you of the sale by the Seller, effective as of the date of these
instructions written above, of all right, title and interest of the Seller in and to the "VLF
Receivable" as defined in Section 6585(i) of the California Government Code (the "VLF
Receivable"), namely, the right to payment of moneys due or to become due to the Seller out of
funds payable in connection with vehicle license fees to a local agency pursuant to Section
10754.11 of the California Revenue and Taxation Code.
By resolution, the Seller's City Council authorized the sale ofthe VLF Receivable
to the California Statewide Communities Development Authority (the "Purchaser") pursuant to a
Purchase and Sale Agreement, dated March 2, 2005 and a Bill of Sale, dated [Closing Date].
The VLF Receivable has been pledged and assigned by the Purchaser pursuant to an Indenture,
dated March 2,2005 (the "Indenture") between the Purchaser and Wells Fargo Bank, National
Association, as Trustee (the "Trustee").
The Seller hereby irrevocably requests and directs that, commencing as of the
date of these instructions Written above, all payments of the VLF Receivable (and documentation
related thereto) be made directly to Wells Fargo Bank, National Association, as Trustee, in
accordance with the wire instructions and bank routing information set forth below.
Please note that the sale of the VLFReceivable by the Seller is irrevocable and
that (i) the Seller has no power to revoke or amend these instructions at any time, (ii) the
Purchaser shall have the power to revoke or amend these instructions only if there are no
notes of the Purchaser outstanding under the Indenture and the Indenture has been
discharged, and (iii) so long as the Indenture has not been discharged, these instructions
cannot be revoked or amended by the Purchaser without the consent of the Trustee.
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DOCssFl:795397_1 D-1
Bank Name:
Wells Fargo N.A.
Bank ABA Routing #:
121000248
Bank Account #:
0001038377
Bank Account Name:
Corporate Trust Clearing
Further Credit To:
CSCDA VLF # 16914200
Bank Address:
Wells Fargo Bank
707 Wilshire Blvd., 17 Floor
Los Angeles, CA 90017
Bank Telephone#:
(213) 614-3353
Bank Contact Person:
Robert Schneider
Please do not hesitate to call the undersigned if you have any questions regarding
this transaction. Thank you for your assistance in this matter.
Very truly yours,
CITY OF LODI '
•R
By: ..........
Authorized Officer
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DpCSSF 1195397.1 D-2
EXHIBIT E
RESERVED
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DOCSSFi:795397.1 E -I
EXHIBIT F
ESCROW INSTRUCTION LETTER
PARTICIPATION AGREEMENT
AND
ESCROW INSTRUCTION LETTER
March 2,2005
California Statewide Communities Development Authority
1100 K Street
Sacramento, CA 95814
Re: VLF Receivable Financing
Dear Sir or Madam:
The City of Lodi (the "Seller") hereby notifies you of its agreement to participate
in the California Statewide Communities Development Authority VLF Receivable Financing.
By adoption of a resolution (the "Resolution") authorizing the sale of its VLF Receivable, the
Seller's City Council has agreed to sell to the California Statewide Communities Development
Authority, for a purchase price that meets the conditions set forth in the Resolution, all of its
right, title and interest in the VLF Receivable.
Enclosed herewith are the following documents which have been duly approved
and executed by the Seller and which are to be held in escrow by Orrick, Herrington &
Sutcliffe LLP, as transaction counsel ("Transaction Counsel"), as instructed below:
1. certified copy of the Resolution, together with a certificate of the City Clerk,
dated March 2,2005;
2. the Seller Certificate, dated March 2,2005;
3. the Opinion of Seller's Counsel, dated March 2,2005;
4. the Purchase and Sale Agreement, dated March 2,2005; and
5. the Irrevocable Instructions to the Controller, undated.
The foregoing documents are to be held in escrow by Transaction Counsel and
shall be delivered only upon payment to the Seller on or before April 29, 2005, of the Final
Purchase Price (as defined in the Purchase and Sale Agreement) that meets the conditions of the
Resolution. Upon such payment, Transaction Counsel is hereby authorized to fill in the closing
date on the Irrevocable Instructions to the Controller.
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DOCSSF I :795397.1
If the Final Purchase Price meeting the conditions of the Resolution is not paid to
the Seller on or before April 29, 2005, this agreement shall terminate and Transaction Counsel
shall return all of the enclosed documents to the Seller.
Very truly yours,
CITY OF LODI
M
Authorized Officer
Enclosures
cc: Omck, Herrington & Sutcliffe LLP
Taxable F-2
DOCSSF1:795397.1
.....................
RESOLUTION NO. 2005--25
CITY COUNCIL
OF THE
CITY OF LODI
A RESOLUTION APPROVING THE FORM OF AND AUTHORIZING THE
EXECUTION AND DELNERY OF A PURCHASE AND SALE AGREEMENT
AND RELATED DOCUMENTS WITH RESPECT TO THE SALE OF THE
SELLER'S VEHICLE LICENSE FEE RECEIVABLE FROM THE STATE;
AND DIRECTING AND AUTHORIZING CERTAIN OTHER ACTIONS IN
CONNECTION THEREWITH
WHEREAS, certain public agencies within the State of California (the "State") are
entitled to receive certain payments payable by the State to each such local agency on or before
August 15, 2006, in connection with vehicle license fees pursuant to Section 10754.11 of the
California Revenue and Taxation Code ("VLF Gap Repayments");
WHEREAS, the City of Lodi (the "Seller") is entitled to and has determined to sell all
right, title and interest of the Seller in and to the "VLF Receivable", as defined in Section6585(i)
of the California Government Code (the "VLF Receivable"), namely, the right to payment of
moneys due or to become due to the Seller out of funds payable in connection with vehicle
license fees to a local agency pursuant to Section 10754.11 of the California Revenue and
Taxation Code;
WHEREAS, the California Statewide Communities Development Authority, a joint
exercise of powers authority organized and existing under the laws of the State (the "Authority"),
has been authorized pursuant to Section 6588(w) of the California Government Code to purchase
the VLF Receivable;
WHEREAS, the Authority desires to purchase the VLF Receivable and the Seller desires
to sell the VLF Receivable pursuant to a purchase and sale agreement by and between the Seller
and the Authority in the form presented to this City Council (the "Sale Agreement") for the
purposes set forth herein;
WHEREAS, in order to finance the purchase price of the VLF Receivable from the Seller
and the purchase price of other VLF Receivables from other local agencies, the Authority will
issue its taxable and tax-exempt notes (the "Notes") pursuant to Section 6590 of the California
Government Code and an Indenture (the "Indenture"), by and between the Authority and Wells
Fargo Bank, National Association, as trustee (the "Trustee"), which Notes will be payable solely
from the proceeds of the VLF Receivable and such other VLF Receivables;
WHEREAS, the Seller acknowledges that the Authority will grant a security interest in
the VLF Receivable to the Trustee and any credit enhancer to secure payment of the Notes; and
WHEREAS, a portion of the proceeds of the Notes will be used by the Authority to,
among other things, pay the purchase price of the VLF Receivable;
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DOCSSF7:795390.1
WHEREAS, the Seller will use the proceeds received from the sale of the VLF
Receivable for any lawful purpose as permitted under the applicable laws of the State;
NOW THEREFORE, the City Council of the City of Lodi hereby resolves as follows:
Section 1. All of the recitals set forth above are true and correct, and this City
Council hereby so finds and determines.
Section 2. The Seller hereby authorizes the sale of the VLF Receivable to the
Authority for a price no less than the Minimum Purchase Price set forth in Appendix A. The
form of Sale Agreement presented to the City Council is hereby approved. An Authorized
Officer (as set forth in Annendix AA) is hereby authorized and directed to execute and deliver the
Sale Agreement on behalf of the Seller, which shall be in substantially the form presented to this
meeting, with such changes therein, deletions therefrom and additions thereto, as such
Authorized Officer shall approve, which approval shall be conclusively evidenced by the
execution and delivery of the Sale Agreement.
Section 3. Any Authorized Officer is hereby authorized and directed to send, or
to cause to be sent, an irrevocable written instruction to the State Controller notifying the State of
the sale of the VLF Receivable and instructingthe disbursement pursuant to Section 6588.5(c) of
California Government Code of the VLF Receivable to the Trustee, on behalf of the Authority.
Section 4. The Authorized Officers and such other Seller officers, as appropriate,
are hereby authorized and directed, jointly and severally, to do any and all things and to execute
and deliver any and all documents, including but not limited to one or more tax certificates, if
required, appropriate escrow instructions relating to the delivery into escrow of executed
documents prior to the closing of the Notes, and such other documents mentioned in the Sale
Agreement or the Indenture, which any of them may deem necessary or desirable in order to
implement the Sale Agreement and otherwise to carry out, give effect to and comply with the
terms and intent of this Resolution; and all such actions heretofore taken by such officers are
hereby ratified, confirmed and approved.
Section 5. All consents, approvals, notices, orders, requests and other actions
permitted or required by any of the documents authorized by this Resolution, whether before or
after the sale of the VLF Receivable or the issuance of the Notes, including without limitation
any of the foregoing that may be necessary or desirable in connection with any default under or
amendment of such documents, may be given or taken by an Authorized Officer without further
authorization by this City Council, and each Authorized Officer is hereby authorized and
directed to give any such consent, approval, notice, order or request, to execute any necessary or
appropriate documents or amendments, and to take any such action that such Authorized Officer
may deem necessary or desirable to further the purposes of this Resolution.
Section 6. The City Council acknowledges that, upon execution and delivery of
the Sale Agreement, the Seller is contractually obligated to sell the VLF Receivable to the
Authority pursuant to the Sale Agreement and the Seller shall not have any option to revoke its
approval of the Sale Agreement or to determine not to perform its obligations thereunder.
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DQCSSF1 c795390.1 2
Section 7. This Resolution shall take effect from and after its adoption and
approval.
PASSED AND ADOPTED by the City Council of the City of Lodi, State of
California, this 2nd day of February ,2005, by the followingvote:
AYES: COUNCIL MEMBERS — Hansen, Hitchcock. Johnson. Mounce, and Mayor Beckman
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS — None
Attest:
City Clerk, . Susan T. Blackston
Approved as to form :
SELLER'S COUNSEL
By rney
Dated:,,
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DCXCSSF]:M3903 3
Minimum Purchase
Price:
Authorized Officers:
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MCM-795390.1
APPENDIX A
QTY OF LODI
An amount equal to or greater than $925,942.00 (the "Minimum
Purchase Price").
City Manager
Finance Director/Treasurer
City Clerk
any designee of any of them, as appointed in a written certificate of
such Authorized Officer delivered to the Trustee.
Minimum Purchase
Price:
Authorized Officers:
Taxable
DOCSSF1:795390.3
BLUE SHEET for Item K-4
Appendix A to Resolution
APPENDIX A
CITY OF LODI
An amount equal to or greater t.ha the. "Minimum
Purchase Price").
City Manager
Finance Director/Treasurer
City Clerk
any designee of any of them, as appointed in a written certificate of
such Authorized Officer delivered to the Trustee.
BLUE SHEET for Item K-4
Page 2 of Purchase and Sale Agreement
case of agreements or instruments) references to all attachments and exhibits thereto and
instruments incorporated therein; and any references to a Person are also to its permitted
successors and assigns.
2. Agreement to Sell and Purchase; Conditions Precedent.
(a) The Seller agrees to sell, and the Purchaser agrees to purchase, on the Closing
Date, for cash paid by the Purchaser in an amount equal to the amount determined t to
Section 3(a) (the "Final Purchase Price"), which shall be not less than (the
"Minimum Purchase Price"), all future right, title and interest of the Seller in and to the "VLF
Receivable" as defined in Section 6585(1) of the California Government Code (the "VLF
Receivable"), namely, the right to payment of moneys due or to become due to the Seller out of
funds payable in connection with vehicle license fees to a local agency pursuant to Section
10754.11 of the California Revenue and Taxation Code. The Purchaser shall pay the Final
Purchase Price by transferring such Final Purchase Price directly to the Seller.
(b) The performance by the Purchaser of its obligations hereunder shall be
conditioned upon:
(i) Transaction Counsel receiving on or before the date the Notes are sold (the
"Pricing Date"), to be held in escrow until the Closing Date and then
delivered to the Purchaser on the Closing Date, the following documents
duly executed by the Seller or its counsel, as applicable: (1) an opinion of
counsel to the Seller dated the Pricing Date in substantially the form
attached hereto as Exhibit B1, (2) certificates dated the Pricing Date in
substantially the forms attached hereto as Exhibit C 1 and Exhibit C2,
(3) irrevocable instructions to the Controller dated as of the Closing Date
in substantially the form attached hereto as Exhi it D, (4) this Agreement,
(5) a certified copy of the resolution of the Seller's City Council approving
this Agreement, the transactions contemplated hereby and the documents
attached hereto as exhibits, and (6) an escrow instruction letter in
substantially the form attached hereto as Exhibit F;
Transaction Counsel receiving on or before the Closing Date, (1) a
bringdown opinion of counsel to the Seller dated as of the Closing Date in
substantially the form attached hereto as Exhibit B2, and (2) a bill of sale
and bringdown certificate of the Seller (the `Bill of Sale") in substantially
the form attached hereto as Exhibit C3; provided that the Purchaser may
waive in its sole discretion the requirements of Section2(b)(ii)(1); and
the Purchaser issuing notes in an amount which will be sufficient to pay
the Final Purchase Price.
(c) The performance by the Seller of its obligations hereunder shall be
conditioned solely upon the Purchaser's payment of the Final Purchase Price as set forth in this
Agreement and no other act or omission on the part of the Purchaser or any other parry shall
excuse the Seller from performing its obligations hereunder.
Taxable
DOCSSF1:795397.1