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HomeMy WebLinkAboutCONTINUING DISCLO AG 11-20-95CONTINUING DISCLOSURE AGREEMENT by and between CITY OF TUSTIN and STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., as Trustee Dated as of ,1995 TUSTIN PUBLIC FINANCING AUTHORITY REVENUE BONDS (TUSTIN RANCH) SERIES A CONTINUING DISCLOSURE AGREEMENT THIS CONTINUING DISCLOSURE AGREEMENT (the "Disclosure Agreement") is made and entered into as of .. , 1995, by and between STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., a national banking association organized and existing under the laws of the United States, as Trustee (the "Trustee"), and the CITY OF TUSTIN, a general law' city and municipal corporation organized and existing under and by virtue of the laws of the State of California (the "City"); WlTNESSETH: WHEREAS, pursuant to the Fiscal Agent Agreement, dated as of ,1995 (the "Fiscal Agent Agreement"), by and between the City and State Street Bank and Trust Company of California, N.A., as Fiscal Agent (the "Fiscal Agent"), the City has issued its Limited Obligation Improvement Bonds, Reassessment District No. 95-1 (Tustin Ranch) (the "Assessment Bonds") in the aggregate principal amount of $ ; WHEREAS, pursuant to the Indenture of Trust, dated as of , 1995 (the "Indenture"), by and between the Tustin Public Financing Authority (the "Authority") and the Trustee, the Authority has issued its Revenue Bonds (Tustin Ranch), Series A (the "Bonds") in the aggregate principal amount of $ ; WHEREAS, a portion of the proceeds of the Bonds have been used to purchase the Assessment Bonds; WHEREAS, the Bonds are payable solely from the payments of the principal of, premium, ff any, and interest on the Assessment Bonds; and WHEREAS, this Disclosure Agreement is being executed and delivered by the City and the Trustee for the benefit of the holders and beneficial owners of the Bonds and in order to assist the underwriters of the Bonds in complying with Securities and Exchange Commission Rule 15c2-12Co)(5); NOW, THEREFORE, for and in consideration of the mutual premises and covenants herein contained, the parties hereto agree as follows: Section 1. P_.tf~tJ.0..O~. Capitalized undefined terms used herein shall have the meanings ascribed thereto in the Indenture or, if not deemed therein, in the Fiscal Agent Agreement. In addition, the following capitalized terms shall have the following meanings: "Annual Report" means any Annual Report provided by the City pursuant to, and as described in, Sections 2 and 3 of this Disclosure Agreement. "Disclosure Representative" means the [Finance Director] of the City or his or her designee, or such other officer or employee as the City shall designate in writing to the Trustee from time to time. "Dissemination Agent" means the Trustee, acting in its capacity as Dissemination Agent hereunder, or any successor Dissemination Agent designated in writing by the City and which has fried with the Trustee a written acceptance of such designation. "Listed Events" means any of the events listed in Section 4(a) of this Disclosure Agreement. "National RepositOry'' means any Nationally Recognized Municipal Securities Information Repository for purposes of the Rule. "Official Statement" means the Official Statement, dated ,1995, relating to the Bonds.. "Participating Underwriter" means any of the original underwriters of the Bonds required to comply with the Rule in connection with offering of the Bonds. "Repository" means each. National Repository and each State Repository. "RUle'' means Rule 15c2-12(b)(5) adopted by the Securities and Exchange CommisSion under the Securities Exchange Act of 1934, as the same may be amended from time to time. "State Repository" means any public or private repository or entity designated by the' State of California as a state repository for the purpose of the Rule and recognized as such by the Securities and Exchange Commission. As of the date of this Disclosure Agreement, there is no State Repository. Section 2. Provision of Annual Ret~orts. (a) The City shall, or shall cause the Dissemination Agent to, provide to each RepoSitory an Annual Report which is consistent with the requirements of Section 3 of this Disclosure Agreement, not later than eight (8) months after the end of the City's fiscal year (which currently would be March 1), commencing with.the report for the 1995/96 fiscal year. The Annual Report may be submitted as a single document or as separate documents comprising a package, and may include by reference other information as 'provided in Section 3 of this Disclosure Agreement; provided, however, that the audited financial statements of the City maY be submitted separately from-the balance of the Annual Report, and later than the date required above for the fding of the Annual Report if not available by that date. If the City's fiscal year changes, it shall give notice of such change in the same manner as for a Listed Event under Section 4(0. (b) Not later than fifteen (15) business days prior to the date specified in subsection · (a) for providing the Annual Report to Repositories, the City shall provide the Annual Report to the Dissemination Agent and the Trustee (if the Trustee is not the Dissemination Agent). ff by such date, the Trustee has not received a copy of the Annual Report, the Trustee shall contact the City and the Dissemination Agent to determine ff the City is in compliance with the first' sentence of this subsection (b). (c) If the Trustee is unable to verify that an Annual Report has been provided to Repositories by the date required in subsection (a), the Trustee shall send a notice to the Municipal Securities Rulemaking Board and the appropriate State Repository, if any, in substantially' the form attached as Exhibit A. (d) The Dissemination Agent shall: (i) determine each year prior to the date for providing the Annual Report the name and address of each National Repository and each State Repository,' ff any; and (ii) file a report with the City and (if the Dissemination Agent is not the Trustee) the Trustee certifying that the Annual Report has been provided pursuant to this Disclosure Agreement, stating the date it was provided and listing all the Repositories to which it was provided. -2- Section 3. Content of Annual Reports. ~ncorporate by reference the following: The City's Annual Report shall contain or (a) The City's audited financial statements prepared in accordance with generally accepted accounting principles as promulgated to apply to governmental entities from time to time by the Governmental Accounting Standards Board. If the City's audited financial statements are not available by the time the Annual Report .is required to be filed pursuant to Section 2(a), the Annual Report shall contain unaudited financial ~tatements in a format similar to that used for the City's audited financial statements, and the audited financial statements shall be filed in the same manner as the Annual. Report when they become available. (b) The following information: (i) The principal amount of Bonds Outstanding as of September 30 of the prior calendar year. (ii) The balance in the Reserve Account, and a statement of the Reserve Requirement (as such term is defined in the Indenture) as of September 30 of the prior calendar year. (iii) The principal amount of Assessment Bonds outstanding as of September 30 of the pr/or calendar year. (iv) The balance in the Improvement Fund established under the Fiscal Agent Agreement as of September 30 of the prior calendar year, and a statement as to whether or not such amount will be sufficient to pay the costs of the improvements intended to be paid therefrom. (v) The balance in the Reserve Fund established under the Fiscal Agent Agreement, and a statement of the Reserve Requirement (as such term is defined in the Fiscal Agent Agreement) as of September 30 of the prior calendar year.. (vi) The total assessed value of all parcels within the Assessment District on which the Reassessments are levied, as shown on the assessment roll of the Orange County Assessor last equalized prior to September 30 of the prior calendar year, and a statement of assessed value-to-lien ratios therefor, either .by individual parcel or by categories (e.g. "below 3:1", "3'1 to 4:1" etc.). (vii) The Reassessment delinquency rate for the Assessment District, as shown On the assessment roll of the Orange County Assessor last equalized prior to September 30 of the prior Calendar year, the number of parcels within the Assessment District delinquent in payment of Reassessments,. as shown on the assessment roll of the Orange County Assessor last equalized prior to September 30 of the prior calendar year, the amount of each delinquency, the length of time delinquent and the date on which foreclosure was commenced, or similar information pertaining to delinquencies deemed appropriate by the City; provided, however, that parcels with delinquencies of [$2,000] or less may be grouped together and such information may be provided by category. (vii/) The status of foreclosure proceedings and a summary of the results of any foreclosure sales as of September 30 of the prior calendar year. (ix) The identity of any property owner representing more than 5% of the Reassessment levy delinquent in payment of Reassessments, as shOwn on the assessment -3- roll of the Orange County Assessor last equalized prior to September 30 of the' prior calendar year.. (x) A land ownership summary Iisting property owners responsible for more than 5% of the Reassessment levy, as shown on the assessment roll of the Orange County AsseSsor last equalized prior to September 30 of the prior calendar year. (xi) The number of building permits issued by the City for new construction within the AsseSsment District during the one year period ending onSeptember 30 of the prior calendar year. (c) In addition to any of the information expressly required to be provided under paragraphs (a) and (b) of this Section, the City shall provide such further information, if any, as may be necessary to make the specifically required statements, in the light of the circumstances under which they are made, not misleading. Any or all of the items listed above may be included by specific reference to other documents, including official statements of debt issues of the City or related public entities, which have been 'submitted to each of the Repositories or the Securities and Exchange CommisSion. If the document included by reference is a final, official statement, it must be available from the Municipal SecuritieS Rulemaking Board. The City shall clearly identify each such other document so included by reference. Section 4. Reoortine of Sienificant Events. (a) Pursuant to the provisions of this Section 4, the City sl~all give, or c~use to be given, notice of the occurrence of any of the following events with respect to the Bonds, ff material: · (i) Principal and interest payment delinquencies. Non-payment related defaults. Unscheduled draws on debt service reserves reflecting financial difficulties. (iv) Unscheduled draws on credit enhancements reflecting financial difficulties. (v) (vi) Substitution of credit or liquidity providers, or their failure to perform. Adverse tax opinions or events affecting the tax-exempt status of the security. (vii) Modifications to rights of security holders. (viii) Contingent or unscheduled bond calls. (ix) (x) Defeasances. Release, substitution, or sale of property securing repayment of the securities. (xi) Rating changes. -4- (b) The Trustee shall, within one (1) business day of obtaining actual knowledge of the occurrence of any of the Listed Events, contact the Disclosure Representative, inform such person of the event, and request that the City promptly notify the Trustee in writing whether or not to report the event pursuant to subsection (f). (c) Whenever the City obtains knowledge of the occurrence of a Listed Event, whether because of a notice from the Trustee pursuant to subsection (b) or otherwise, the City shall as soon as possible determine if such event would be material under applicable Federal securities law. (d) If the City determines that knowledge of the occurrence of a Listed Event would be material under applicable Federal securities law, the City shall promptly notify the Trustee in writing. Such notice shall instruct the Trustee to report the occurrence pursuant to subsection (f). (e) 'If in response to a request under subsection (b), the City determines that the Listed Event would not be material under applicable Federal securities law, the City shall so notify the Trustee in writing and instruct the Trustee not to report the occurrence pursuant to subsection (f). (f) If the Trustee has been instructed by' the City to report the occurrence of a Listed Event, the Trustee shall file a notice of such occurrence with the Municipal Securities Rulemaking Board and each State Repository. Notwithstanding the foregoing, notice of Listed Events described in subsections (a)(viii) and (ix) need not be given under this subsection any earlier than the notice (if any) of the underlying event is given to holders of affected Bonds pursuant to the Indenture. Section 5. Termination of Reporting Obligation. The City's obligations under this Disclosure Agreement shall terminate upon the legal defeasance, prior redemption or payment in full of all of the Bonds. If such termination occurs prior to the final maturity of the Bonds, the citY shall give notice of such termination in the same manner as for a Listed Event under Section 4(f). Section 6. Dissemination Aeent. The City may, from time to time, appoint or engage a Dissemination Agent to assist it in c~rrying out its obligations under this Disclosure Agreement, and may discharge any such Dissemination Agent, with or without appointing a successor Dissemination Agent. If at any time there is not any other designated Dissemination Agent, the Trustee shall be the Dissemination Agent. Section 7. Amen0ment:'Waiv~r. Notwithstanding any other provision of this Disclosure Agreement, the City and the Trustee may amend this Disclosure Agreement (and the Trustee shall agree to any amendment so requested by the City), and any provision of this Disclosure Agreement may be waived, provided that the following conditions are satisfied: (a) ff the amendment or waiver relates to Sections 2(a), 3 or 4(a) it may only be made in connection with a change in circumstances that arises from a change in legal requirements, change in law, or change in the identitY, nature, or status of an obligated person with respect to the Bonds, or type of business conducted; (b) the undertakings herein, as proposed to be amended or waived, would, in the opinion of nationally recognized bond counsel, have complied with the requirements of the Rule at the time of the primary offering of the Bonds, after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances; and (c) the proposed amendment or waiver (i) is approved by holders of the Bonds in the manner provided in the Indenture for amendments to the Indenture with the consent of holders, -5- or (ii) does not, in the opinion of the Trustee or nationally recognized bond coun~l, materially impair the interests of holders. · If the annual financial information or Operating data to be provided in the Annual Report is amended pursuant to the provisions hereof, the first annual financial information containing the amended operating data or financial information shall explain, in narrative form, the reasons for the amendment and the impact of the change in the type of operating data or financial information being provided. If an amendment is made to the undertaking specifying the accounting principles to be followed in preparing £mancial statements, the annual financial information for the year in which the change is made shall present a comparison between the financial statements or informatiOn prepared on the basis of the new accounting principles and those prepared on the basis of the former accounting principles. The comparison shall include a qualitative discussion of the differences in the accounting principles and. the impact of the change in the accounting principles on the presentation of the financial statements or information, in order to provide information to investors to enable them to evaluate the ability of the City to meet its obligations. To the extent reasonably feasible, the comparison shall be quantitative. A notice of the change in the accounting principles shall be sent to the Repositories in the same manner as for a Listed Event under Section 4(f). Section 8. Additional InformatiOla. Nothing in this Disclosure Agreement shall be deemed to prevent the City from disseminating any other information, using the means of dissemination set forth in this Disclosure Agreement or any other means of communication, or including any other information in any Annual Report or notice of occurrence of a Listed Event, in addition to that which is required by this Disclosure Agreement. If the City chooses to include any information in any Annual Report or notice of occurrence of a Listed Event in addition to that which is specifically required by this Disclosure Agreement, the City shall have no obligation under this Disclosure Agreement to update such information or include it in any future Annual Report or notice of occurrence of a Listed Event. Section 9. Default. In the event of a failure of the City or the Trustee to comply with any provision of this Disclosure Agreement, the Trustee may (and, at the written direction of any Participating Underwriter or the holders of at least 25% aggregate principal amount of Outstanding Bonds, shall), or any holder or beneficial owner of the Bonds may, take such actions as may be necessary and appropriate, including seeking mandate or specific performance by court order, to cause the City or Trustee, as the case may be, to comply with its obligations under this Disclosure Agreement. A default under this Disclosure Agreement shall not be deemed an Event of Default under the Indenture, and the sole remedy under this Disclosure Agreement in the event of any failure of the City or the Trustee to comply with this Disclosure Agreement shall be an action to compel performance. Section 10. Duties, Immunities and Liabilities of Trustee and Dissemination A~ent. Article VIII of the Indenture is hereby made applicable to this Disclosure Agreement as i~ this Disclosure Agreement were (solely for this purpose) contained in the Indenture. The Dissemination Agent (ff other than the Trustee or the Trustee in its capacity as Dissemination Agent) shall have only such duties as are specifically set forth in this Disclosure Agreement. Section 11. Beneficiaries. This Disclosure Agreement shall inure-solely to the benefit of the City, the Trustee, the Dissemination Agent, the Participating Underwriters and holders and beneficial owners from time to t/me of the Bonds, and shall create no rights in any other person or entity. -6- Section 12. Counterparts. This Disclosure Agreement may be executed in several counterparts, each of which shall be an original and all .of which shall constitute but one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Disclosure Agreement as of the date first above written. CITY OF TUSTIN By:, ATTEST: City Cler~ STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., as Trustee By: Authorized Officer -7- EXHIBIT A NOTICE TO MUNICIPAL SECURITIES RULEMAKING BOARD OF FAILURE TO FILE ANNUAL REPORT Name of Issuer: Name of Bond Issue: Date of Issuance: NOTICE IS HEREBY GIVEN that the City of Tustin (the "City") has not provided an Annual Rep.on with respect to the above-named Bonds as required by Section of the Indenture of Trust, dated as of 1, 1'995, by and between State Street Bank and Trust Company of California, N.A. (the "Trustee") and the City. [The City anticipates that the Annual Report will be filed by .] Dated: STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., on behalf of the City of Tustin cc: City of Tustin A-1