Westpark CFD No. 1 Assessment Bonds 2025 - Purchase Contract(708776032.2).docx
City of Buckeye — Joint Community Facilities Districts (2025-07-01)
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DRAFT 6/23/2025
$______,000
WESTPARK COMMUNITY FACILITIES DISTRICT
(CITY OF BUCKEYE, ARIZONA)
SPECIAL ASSESSMENT DISTRICT NO. 2
SPECIAL ASSESSMENT REVENUE BONDS, SERIES 2025
PURCHASE CONTRACT
_________, 2025
Westpark Community Facilities District
c/o City of Buckeye, Arizona
530 East Monroe Avenue
Buckeye, Arizona 85326
Attention: District Manager
Ladies and Gentlemen:
The undersigned, Raymond James & Associates, Inc. (the “Underwriter”), acting
on its own behalf, offers to enter into the following agreement (this “Purchase Contract”) with
Westpark Community Facilities District (City of Buckeye, Arizona) (the “Issuer”) which, upon
the Issuer’s written acceptance of this offer, will be binding upon the Issuer and upon the
Underwriter. This offer is made subject to the Issuer’s written acceptance hereof on or before
11:59 p.m., local time, Phoenix, Arizona, on the date hereof, and, if not so accepted, will be subject
to withdrawal by the Underwriter upon notice delivered to the Issuer at any time prior to the
acceptance hereof by the Issuer. Terms not otherwise defined in this Purchase Contract shall have
the same meanings set forth in the Official Statement and the Bond Resolution (each as defined
herein).
In addition to acceptance of this Purchase Contract by the Issuer as provided above,
the obligations of the Underwriter and the Issuer under this Purchase Contract shall be conditioned
on the execution and delivery of the Indemnity Letter, dated the date hereof (the “Indemnity
Letter”), by KEMF WP 2.2, LLC, an Arizona limited liability company (the “Owner”), attached
as the Attachment hereto. Delivery includes, in both cases, sending in the form of a facsimile or
telecopy or via the internet as a portable document format (PDF) file or other replicating image
attached to an electronic message.
1.
Purchase and Sale of the Bonds. Subject to the terms and conditions and in reliance
upon the representations, warranties and agreements set forth herein, the Underwriter hereby
agrees to purchase from the Issuer, and the Issuer hereby agrees to sell and deliver to the
Underwriter, all, but not less than all, of the Issuer’s Westpark Community Facilities District (City
of Buckeye, Arizona) Special Assessment District No. 2 Special Assessment Revenue Bonds,
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Series 2025 in the aggregate principal amount of $____,000 (the “Bonds”). Inasmuch as this
purchase and sale represents a negotiated transaction, the Issuer and the Underwriter acknowledge
and agree that: (i) the purchase and sale of the Bonds pursuant to this Purchase Contract is an
arm’s-length commercial transaction between the Issuer and the Underwriter; (ii) in connection
with such transaction, the Underwriter is acting solely as a principal and is not acting as a municipal
advisor, a financial advisor or a fiduciary of the Issuer; (iii) the Underwriter has not assumed a
fiduciary responsibility in favor of the Issuer with respect to the offering of the Bonds or the
process leading thereto (whether or not the Underwriter, or any affiliate of the Underwriter, has
advised or is currently advising the Issuer on other matters) nor has it assumed any other obligation
to the Issuer except the obligations expressly set forth in this Purchase Contract, (iv) the
Underwriter has financial and other interests that differ from those of the Issuer; and (v) the Issuer
has consulted with its own legal and financial advisors to the extent it deemed appropriate in
connection with the offering of the Bonds.
The principal amount of the Bonds to be issued, the dated date therefor, the
maturities and redemption provisions and interest rates per annum and related yields are set forth
in the Schedule attached hereto. The Bonds shall be as described in, and shall be issued and
secured under and pursuant to the provisions of the resolution adopted by the Board of Directors
of the Issuer (the “District Board”) on [July 1], 2025 (the “Bond Resolution”).
The purchase price for the Bonds shall be $__________ (the “Purchase Price”),
representing the aggregate of the par amount of the Bonds, less an underwriting discount on the
Bonds of $__________.
2.
Public Offering. The Underwriter intends to make an initial bona fide public
offering of all of the Bonds at not in excess of the public offering prices (or not less than the yields)
set forth on the Schedule attached hereto and on the inside front cover page of the Official
Statement and may subsequently change such offering prices (or yields) (but in all cases subject
to the requirements of Section 3 hereof). The Underwriter may offer and sell the Bonds to certain
dealers (including dealers depositing Bonds into investment trusts) and others at prices lower than
the public offering prices (or higher than the yields) set forth on the Schedule attached hereto and
on the inside front cover page of the Official Statement (but in all cases subject to the requirements
of Section 3 hereof).
3.
Establishment of Issue Price.
(a)
The Underwriter agrees to assist the Issuer in establishing the issue price of
the Bonds and shall execute and deliver to the Issuer on the Closing Date (as defined herein)
an “issue price” or similar certificate, substantially in the form attached hereto as Exhibit A,
together with the supporting pricing wires or equivalent communications, with such
modifications as may be appropriate or necessary, in the reasonable judgment of the
Underwriter, the Issuer and Gust Rosenfeld P.L.C. (“Bond Counsel”), 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 Issuer under this section to establish the issue
price of the Bonds may be taken on behalf of the Issuer by the Issuer’s municipal advisor
identified herein and any notice or report to be provided to the Issuer may be provided to
the Issuer’s municipal advisor.
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(b)
[Except as otherwise set forth in the Schedule attached hereto, the] [The]
Issuer will treat the first price at which 10% of each maturity of the Bonds (the “10% test”)
is sold to the public as the issue price of that maturity. At or promptly after the execution
of this Purchase Contract, the Underwriter shall report to the Issuer 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 Issuer 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 has occurred,
until either (i) the Underwriter has sold all 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
request of the Issuer 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.
(c)
[The Underwriter confirms that it has offered the Bonds to the public on or
before the date of this Purchase Contract at the offering price or prices (the “initial offering
price”), or at the corresponding yield or yields, set forth in the Schedule attached hereto[,
except as otherwise set forth therein. The Schedule attached hereto also sets forth, as of
the date of this Purchase Contract, the maturities, if any, of the Bonds for which the 10%
test has not been satisfied and for which the Issuer and the Underwriter agree that the
restrictions set forth in the next sentence shall apply, which will allow the Issuer 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:
(i)
The close of the fifth (5th) business date 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 Issuer 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.
[(c)][(d)]
The Underwriter confirms that:
(i)
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:
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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.
(ii)
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.]
[(d)][(e)]
The Issuer 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 Issuer
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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.
[(e)][(f)]
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:
(i)
“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 Issuer (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)[,
and]
(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 Purchase Contract by
all parties.]
4.
The Official Statement.
(a)
A copy of the Preliminary Official Statement, dated _______, 2025 (the
“Preliminary Official Statement”), including the cover page, the inside front cover page
and the Appendices thereto, as amended and supplemented, of the Issuer relating to the
Bonds has been provided to the Underwriter. The Preliminary Official Statement, as
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amended to reflect the changes required in connection with the pricing and sale of the
Bonds, as amended and supplemented, is hereinafter called the “Official Statement.”
(b)
The Preliminary Official Statement has been prepared for use by the
Underwriter in connection with the public offering, sale and distribution of the Bonds. The
Issuer hereby deems the Preliminary Official Statement final as of its date, except for the
omission of such information which is dependent upon the final pricing of the Bonds for
completion, all as permitted to be excluded by Section (b)(1) of Rule 15c2-12 under the
Securities Exchange Act of 1934, as amended and supplemented (the “Rule”).
(c)
The Issuer represents that the District Board has reviewed and approved the
information in the Preliminary Official Statement and hereby authorizes the Official
Statement and the information therein contained to be used by the Underwriter in
connection with the public offering and the sale of the Bonds. WHILE THE
UNDERWRITER HAS PARTICIPATED AND WILL PARTICIPATE WITH THE
ISSUER IN THE PREPARATION AND ASSEMBLAGE OF THE PRELIMINARY
OFFICIAL STATEMENT AND THE OFFICIAL STATEMENT, RESPECTIVELY,
THE ISSUER IS PRIMARILY RESPONSIBLE FOR THE CONTENT OF THE
PRELIMINARY OFFICIAL STATEMENT AND THE OFFICIAL STATEMENT. The
Issuer ratifies the use by the Underwriter prior to the date hereof of the Preliminary Official
Statement in connection with the public offering of the Bonds. The Issuer shall provide,
or cause to be provided, to the Underwriter as soon as practicable after the date of the
Issuer’s acceptance of this Purchase Contract (but, in any event, not later than within seven
business days after the Issuer’s acceptance of this Purchase Contract and in sufficient time
to accompany any confirmation that requests payment from any customer) copies of the
Official Statement which is complete as of the date of its delivery to the Underwriter in
such quantity as the Underwriter shall request in order for the Underwriter to comply with
Section (b)(4) of the Rule and the rules of the Municipal Securities Rulemaking Board (the
“MSRB”). The Issuer hereby confirms that it does not object to the distribution of the
Official Statement in electronic form.
(d)
If, after the date of this Purchase Contract to and including the date the
Underwriter is no longer required to provide the Official Statement to potential customers
who request the same pursuant to the Rule (the earlier of (i) 90 days from the “end of the
underwriting period” (as defined in the Rule) and (ii) the time when the Official Statement
is available to any person from the MSRB, but in no case less than 25 days after the “end
of the underwriting period” for the Bonds), the Issuer becomes aware of any fact or
circumstance which might or would cause the Official Statement, as then supplemented or
amended, to contain any untrue statement of a material fact or to omit to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading, or if it is necessary to amend or supplement the Official Statement to comply
with law, the Issuer will notify the Underwriter (and for the purposes of this clause provide
the Underwriter with such information as it may from time to time request), and if, in the
opinion of the Underwriter or the Issuer, such fact or circumstance requires preparation
and publication of a supplement or amendment to the Official Statement, the Issuer will
forthwith prepare and furnish, at the Issuer’s own expense (in a form and manner approved
by the Underwriter), a reasonable number of copies of either amendments or supplements
7
to the Official Statement so that the statements in the Official Statement as so amended and
supplemented will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading or so that the Official Statement will comply with law. If such notification shall
be subsequent to the Closing Date, the Issuer shall furnish such legal opinions, certificates,
instruments and other documents as the Underwriter may deem necessary to evidence the
truth and accuracy of such supplement or amendment to the Official Statement.
(e)
The Underwriter hereby agrees to file the Official Statement with the
Electronic Municipal Market Access system of the MSRB. Unless otherwise notified in
writing by the Underwriter, the Issuer can assume that the “end of the underwriting period”
for purposes of the Rule is the Closing Date.
5.
Representations, Warranties, and Covenants of the Issuer. The Issuer hereby
represents and warrants to, and covenants with, the Underwriter that:
(a)
The Issuer is a community facilities district of the State of Arizona (the
“State”) duly organized and validly existing pursuant to Title 48, Chapter 4, Article 6,
Arizona Revised Statutes (the “Enabling Act”), and has full legal right, power and authority
under the Enabling Act and the Bond Resolution to: (i) authorize, execute, deliver and
issue, as applicable, (A) this Purchase Contract, (B) the Bonds, (C) a Bond Registrar,
Transfer Agent and Paying Agent Contract, dated as of [August] 1, 2025 (the “Paying
Agent/Registrar Agreement”), between the Issuer and U.S. Bank Trust Company, National
Association, as paying agent and registrar (the “Paying Agent/Registrar”), (D) a
Development, Financing Participation and Intergovernmental Agreement No. 1 for
Westpark Community Facilities District (Buckeye, Arizona), dated as of August 5, 2003,
by and among the Town of Buckeye, Arizona (as predecessor to the City of Buckeye,
Arizona, referred to herein as the “City” ), the Issuer and the Owner (which acquired rights
under such agreement as a result of its purchase of property from the prior owners of all
land within the boundaries of the Issuer) (the “CFD Development Agreement”), (E) a
Westpark Community Facilities District (City of Buckeye, Arizona) Waiver and
Development Agreement Pertaining to the To Be Formed Special Assessment District No.
2 dated as of June 10, 2025 (the “Waiver Agreement”), by and among the Issuer, the Owner
and certain landowners within the boundaries of Westpark Community Facilities District
(City of Buckeye, Arizona), (F) the Blanket Issuer Letter of Representations (the “DTC
Letter”), by the Issuer to The Depository Trust Company (“DTC”), and (G) a Continuing
Disclosure Undertaking, dated the Closing Date, executed by the Issuer, which satisfies the
requirements of Section (b)(5)(i) of the Rule (the “Undertaking” and, collectively with this
Purchase Contract, the Paying Agent/Registrar Agreement, the CFD Development
Agreement, the Waiver Agreement and the DTC Letter, the “Issuer Documents”); (ii) sell,
issue and deliver the Bonds to the Underwriter as provided herein; and (iii) carry out and
consummate the transactions contemplated by the Bond Resolution, the Issuer Documents
and the Official Statement, and the Issuer has complied, and will at the Closing be in
compliance in all material respects, with the terms of the Enabling Act, the Bond
Resolution and the Issuer Documents as they pertain to such transactions.
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(b)
By all necessary official action of the Issuer prior to or concurrently with
the acceptance hereof, the Issuer has duly authorized all necessary action to be taken by it
for (i) the adoption of the Bond Resolution and the issuance and sale of the Bonds, (ii) the
approval, execution and delivery of, and the performance by the Issuer of the obligations
on its part, contained in the Bonds and the Issuer Documents, and (iii) the consummation
by it of all other transactions contemplated by the Official Statement, and the Issuer
Documents and any and all such other agreements and documents as may be required to be
executed, delivered and/or received by the Issuer in order to carry out, give effect to, and
consummate the transactions contemplated herein and in the Official Statement.
(c)
The Bond Resolution (i) authorizes the authorization, execution, delivery
and issuance, as applicable, of the Issuer Documents and the Bonds as well as the approval,
execution and authorization of the use and distribution of the Official Statement (including,
as applicable, the Preliminary Official Statement) and the selling of the Bonds to the
Underwriter, (ii) has been duly and validly adopted by the Issuer, and (iii) is in full force
and effect.
(d)
The Issuer Documents constitute legal, valid and binding obligations of the
Issuer, enforceable in accordance with their respective terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other similar laws and principles of equity
relating to or affecting the enforcement of creditors’ rights and, in the case of the
Undertaking, annual appropriation of amounts to pay for compliance therewith, and the
Bonds, when issued, delivered and paid for, in accordance with the Bond Resolution and
this Purchase Contract, will constitute legal, valid and binding obligations of the Issuer,
entitled to the benefits of the Bond Resolution, and enforceable in accordance with their
terms, subject to bankruptcy, insolvency, reorganization, moratorium, and other similar
laws and principles of equity relating to or affecting the enforcement of creditors’ rights,
and all actions necessary shall have been or shall be taken to the extent such action may be
taken at or prior to the Closing to create the legally valid and binding pledge of and lien
the Bond Resolution purports to create as set forth herein.
(e)
The Issuer is not in breach of or default in any material respect under any
applicable constitutional provision, law or administrative regulation of the State or the
United States or any applicable judgment or decree or any loan agreement, indenture, bond,
note, resolution, agreement or other instrument to which the Issuer is a party or to which
the Issuer is otherwise subject, no event has occurred and is continuing which constitutes
or with the passage of time or the giving of notice, or both, would constitute a material
default or event of default by the Issuer under any of the foregoing and the execution and
delivery of the Bonds and the Issuer Documents and the adoption of the Bond Resolution
and compliance with the provisions on the Issuer’s part contained therein, will not conflict
with or constitute a material breach of or default under any constitutional provision,
administrative regulation, judgment, decree, loan agreement, indenture, bond, note,
resolution, agreement or other instrument to which the Issuer is a party or to which the
Issuer is otherwise subject or under the terms of any such law, regulation or instrument.
(f)
All authorizations, approvals, licenses, permits, consents and orders of any
governmental authority, legislative body, board, agency or commission having jurisdiction
9
of the matter which are required for the due authorization of, which would constitute a
condition precedent to, or the absence of which would materially adversely affect the due
performance by the Issuer of its obligations under the Bond Resolution, the Issuer
Documents, and the Bonds have been duly obtained, except for such approvals, consents
and orders as may be required under the “blue sky” or securities laws of any jurisdiction in
connection with the offering and sale of the Bonds.
(g)
The Bonds and the Issuer Documents conform to the descriptions thereof
contained in the Official Statement, and the proceeds of the sale of the Bonds will be
applied generally as described in the Official Statement.
(h)
There is no litigation, action, suit, proceeding, inquiry or investigation, at
law or in equity, before or by any court, government agency, public board or body, pending
or overtly threatened against the Issuer, affecting the existence of the Issuer or the titles of
its officers to their respective offices, or affecting or seeking to prohibit, restrain or enjoin
the sale, issuance or delivery of the Bonds, or the levy or collection of the Special
Assessments (as defined in the Official Statement) from which principal of and interest on
the Bonds are to be paid pursuant to the Bond Resolution, or in any way contesting or
affecting the adoption of the Bond Resolution or the validity or enforceability of the Bonds
or the Issuer Documents, or contesting the exclusion from gross income of interest on the
Bonds for federal income tax purposes or State income tax purposes, or contesting in any
way the completeness or accuracy of the Preliminary Official Statement or the Official
Statement or any supplement or amendment thereto, or contesting the powers of the Issuer
or any authority for the issuance of the Bonds, the adoption of the Bond Resolution or the
execution and delivery of the Issuer Documents, nor, to the best knowledge of the Issuer,
is there any basis therefor, wherein an unfavorable decision, ruling or finding would
materially adversely affect the validity or enforceability of the Bond Resolution, the Bonds
or the Issuer Documents.
(i)
The Preliminary Official Statement did not, and as of the date hereof does
not, contain any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(j)
At the time of the Issuer’s acceptance hereof and (unless the Official
Statement is amended or supplemented pursuant to Section 4(d) of this Purchase Contract),
at all times subsequent to the acceptance hereof during the period up to and including the
Closing Date, the Official Statement will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not
misleading.
(k)
If the Official Statement is supplemented or amended pursuant to
Section 4(d) of this Purchase Contract, at the time of each supplement or amendment
thereto and (unless subsequently again supplemented or amended pursuant to such
paragraph) at all times subsequent thereto during the period up to and including the Closing
Date, the Official Statement as so supplemented or amended will not contain any untrue
10
statement of a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under which
made, not misleading.
(l)
The Issuer will apply, or cause to be applied, the proceeds from the sale of
the Bonds as provided in and subject to all of the terms and provisions of the Bond
Resolution and will not take or omit to take any action which action or omission will
adversely affect the exclusion from gross income for federal income tax purposes or State
income tax purposes of the interest on the Bonds.
(m)
The Issuer will furnish, at the expense of the Underwriter, such information
and execute such instruments and take such action in cooperation with the Underwriter as
the Underwriter may reasonably request (i) to (A) qualify the Bonds for offer and sale
under the “blue sky” or other securities laws and regulations of such states and other
jurisdictions in the United States as the Underwriter may designate, and (B) determine the
eligibility of the Bonds for investment under the laws of such states and other jurisdictions,
and (ii) to continue such qualifications in effect so long as required for the distribution of
the Bonds (provided, however, that the Issuer will not be required to qualify as a foreign
corporation or to file any general or special consents to service of process under the laws
of any jurisdiction) and will advise the Underwriter immediately of receipt by the Issuer of
any notification with respect to the suspension of the qualification of the Bonds for sale in
any jurisdiction or the initiation or threat of any proceeding for that purpose.
(n)
The financial information regarding the Issuer in the Preliminary Official
Statement fairly presents, and in the Official Statement shall fairly present, the financial
position and results of the Issuer as of the dates and for the periods therein set forth; prior
to the Closing, there will be no adverse change of a material nature in such financial
position, results of operations or condition, financial or otherwise, of the Issuer; and the
Issuer is not a party to any litigation or other proceeding pending or overtly threatened
which, if decided adversely to the Issuer, would have a materially adverse effect on the
financial condition of the Issuer.
(o)
To the extent the Issuer may agree to do so pursuant to applicable law, prior
to the Closing the Issuer will not offer or issue any bonds, notes or other obligations for
borrowed money or incur any material liabilities, direct or contingent, payable from or
secured by any of the revenues or assets which will secure the Bonds without the prior
approval of the Underwriter which approval will not be unreasonably withheld.
(p)
The Issuer has executed and delivered or shall execute and deliver prior to
the Closing, and in time for the Closing to occur at its specified time, the documents
required to cause the Bonds to be eligible for deposit with DTC including the DTC Letter.
(q)
The officers and officials of the Issuer executing the Official Statement, the
Issuer Documents and the Bonds and the officers and officials of the Issuer listed on the
certificate of the Issuer to be delivered on the Closing Date have been or will have been
duly appointed and are or will be qualified to serve as such officers and officials of the
Issuer, and any certificate signed by any officer or official of the Issuer authorized to do so
11
in connection with the transactions contemplated by this Purchase Contract shall be
deemed a representation and warranty by the Issuer to the Underwriter as to the statements
made therein.
(r)
The Issuer is the only “obligated person” (as defined in the Rule) with
respect to the Bonds, and there have not been and, as of the Closing, there will not have
been, any instances during the preceding five years in which the Issuer failed to comply, in
all material respects, with any continuing disclosure agreement previously made by the
Issuer for purposes of the Rule, except as disclosed under “CONTINUING
DISCLOSURE” in the Official Statement.
(s)
The Issuer has submitted the information required with respect to previous
issuances of bonds and securities pursuant to Section 35-501(B), Arizona Revised Statutes,
and will file the information relating to the Bonds required to be submitted pursuant thereto
within 60 days of the Closing Date.
6.
Closing.
(a)
At 8:00 a.m., local time, Phoenix, Arizona, on _________, 2025, or at such
other time and date as shall have been mutually agreed upon by the Issuer and the
Underwriter (the “Closing Date”), the Issuer will, subject to the terms and conditions
hereof, deliver the Bonds to the Underwriter duly executed and authenticated, together with
the other documents hereinafter mentioned, and the Underwriter will, subject to the terms
and conditions hereof, accept such delivery and pay the Purchase Price of the Bonds as set
forth in Section 1 of this Purchase Contract by wire transfer payable in immediately
available funds to the order of the Issuer (the “Closing”). Payment for the Bonds as
aforesaid shall be made at the offices of Bond Counsel, or such other place as shall have
been mutually agreed upon by the Issuer and the Underwriter.
(b)
Delivery of the Bonds shall be made through the facilities of DTC or, if by
the means of a “Fast Automated Securities Transfer,” with the Paying Agent/Registrar.
The Bonds shall be delivered in definitive fully registered form, bearing CUSIP numbers
without coupons, with one Bond for each maturity of the Bonds, registered in the name of
Cede & Co., all as provided in the Bond Resolution, and shall be made available to the
Underwriter at least one business day before the Closing Date for purposes of inspection.
7.
Closing Conditions. The Underwriter has entered into this Purchase Contract in
reliance upon the representations, warranties, covenants and agreements of the Issuer contained
herein and of the Owner contained in the Indemnity Letter, and in reliance upon the
representations, warranties, covenants and agreements to be contained in the documents and
instruments to be delivered at the Closing and upon the performance by the Issuer of its obligations
hereunder and by the Owner of its obligations pursuant to the Indemnity Letter, both as of the date
hereof and as of the Closing Date. Accordingly, the Underwriter’s obligations under this Purchase
Contract to purchase, to accept delivery of and to pay for the Bonds shall be conditioned upon the
performance by the Issuer of its obligations to be performed hereunder and by the Owner of its
obligations pursuant to the Indemnity Letter and under such documents and instruments on or prior
to the Closing, and shall also be subject to the following additional conditions, including the
12
delivery by the Issuer of such documents as are enumerated herein, in form and substance
reasonably satisfactory to the Underwriter:
(a)
The representations and warranties of the Issuer contained herein and of the
Owner contained in the Indemnity Letter shall be true, complete and correct on the date
hereof and on and as of the Closing Date, as if made on the Closing Date;
(b)
The Issuer shall have performed and complied with all covenants,
agreements and conditions required by this Purchase Contract to be performed or complied
with by it prior to or at the Closing;
(c)
At the time of the Closing, (i) the Bond Resolution, the Issuer Documents
and the Bonds shall be in full force and effect in the form heretofore approved by the
Underwriter and shall not have been amended, modified or supplemented, and the Official
Statement shall not have been supplemented or amended, except in any such case as may
have been agreed to by the Underwriter; and (ii) all actions of the Issuer required to be
taken by the Issuer shall be performed in order for Bond Counsel and counsel to the
Underwriter to deliver their respective opinions referred to hereinafter;
(d)
At the time of the Closing, all official action of the Issuer relating to the
Bonds, the Bond Resolution and the Issuer Documents shall be in full force and effect and
shall not have been amended, modified or supplemented;
(e)
At or prior to the Closing, the Bond Resolution shall have been duly
executed and delivered by the Issuer and the Issuer shall have duly executed and delivered
and the Paying Agent/Registrar shall have duly authenticated the Bonds;
(f)
Prior to or on the Closing Date, no “event of default” shall have occurred or
be existing under this Purchase Contract, nor shall any event have occurred which, with
the passage of time or the giving of notice, or both, shall constitute an event of default
under this Purchase Contract;
(g)
At or prior to the Closing, there shall not have occurred any change or any
development involving a prospective change in the condition, financial or otherwise, or in
the revenues or operations of the Issuer or the Owner from that set forth in the Preliminary
Official Statement and the Official Statement that in the judgment of the Underwriter, is
material and adverse and that makes it, in the judgment of the Underwriter, impracticable
to market the Bonds on the terms and in the manner contemplated in the Preliminary
Official Statement and the Official Statement;
(h)
Prior to or on the Closing Date, the Issuer shall not have failed to pay
principal or interest when due on any of its outstanding obligations for borrowed money;
(i)
Prior to or on the Closing Date, all steps to be taken and all instruments and
other documents to be executed, and all other legal matters in connection with the
transactions contemplated by this Purchase Contract shall be reasonably satisfactory in
legal form and effect to the Underwriter;
13
(j)
At or prior to the Closing, the Underwriter shall have received copies of
each of the following documents:
(i)
The Official Statement, and each supplement or amendment thereto,
if any, executed on behalf of the Issuer by the Chairman of the District Board, or
such other official as may have been agreed to by the Underwriter, and the reports
and audits referred to or appearing in the Official Statement;
(ii)
A certified copy of the Bond Resolution with such supplements or
amendments as may have been agreed to by the Underwriter;
(iii)
The Issuer Documents;
(iv)
The unqualified approving opinion of Bond Counsel with respect to
the Bonds, dated the Closing Date and addressed to the Issuer, substantially in the
form attached to the Official Statement;
(v)
A supplemental opinion of Bond Counsel, as Bond Counsel and
counsel to the Issuer, dated the Closing Date, addressed to the Underwriter and
substantially in the form attached hereto as Exhibit B;
(vi)
An opinion of Greenberg Traurig, LLP, counsel to the Underwriter,
dated the Closing Date, addressed to the Underwriter and substantially in the form
attached hereto as Exhibit C;
(vii)
An opinion of Berens Blonstein PLC, counsel to the Owner, dated
the Closing Date, addressed to the Underwriter and the Issuer and substantially in
the form attached hereto as Exhibit D;
(viii) A consent of Schnepf Ellsworth Appraisal Group LLC, dated the
Closing Date, addressed to the Underwriter and substantially in the form attached
hereto as Exhibit E;
(ix)
A certificate from the Owner, dated the Closing Date, signed by an
authorized official of the Owner and in form and substance satisfactory to the Issuer
and the Underwriter, to the effect that the representations and warranties contained
in the Indemnity Letter, the CFD Development Agreement, the Waiver Agreement
and in the documents executed by the Owner in connection with the issuance of the
Bonds are true and correct in all material respects as of the Closing Date;
(x)
A certificate or certificates of the Issuer, dated the Closing Date,
signed by an authorized official or authorized officials of the Issuer and in form and
substance satisfactory to the Underwriter, in which such official or officials state:
(A)
the representations and warranties of the Issuer contained
herein are true and correct in all material respects on and as of the Closing
Date with the same effect as if made on the Closing Date;
14
(B)
except as described in the Official Statement, no litigation or
proceeding or tax challenge against the Issuer is pending or, to the best of
such representatives’ knowledge, threatened, before any judicial, quasi-
judicial or administrative forum which would (i) contest the right of the
members or officials of the Issuer to hold and exercise their respective
positions, (ii) contest the due organization and valid existence or powers of
the Issuer, (iii) contest the validity, due authorization and execution of the
Bonds or the Issuer Documents, or (iv) attempt to limit, enjoin or otherwise
restrict or prevent the Issuer from functioning and levying, assessing and
collecting the Special Assessments from which the Bonds are payable
pursuant to the Bond Resolution, nor to the best of such representatives’
knowledge, is there any basis therefor, wherein an unfavorable decision,
ruling or finding would materially, adversely affect the validity or
enforceability of the Bond Resolution, the Bonds or the Issuer Documents
or have a material, adverse effect on the financial condition of the Issuer;
(C)
the Bond Resolution has been duly adopted by the Issuer, is
in full force and effect and has not been modified, amended or repealed, and
no authority or proceedings for the issuance of the Bonds has been repealed,
revoked or rescinded and no petition or petitions to revoke or alter the
authorization to issue the Bonds has been filed with or received by the
Issuer;
(D)
the Issuer has complied with all the agreements and
covenants and satisfied all the conditions on its part to be performed or
satisfied prior to or on the Closing Date; and
(E)
the Preliminary Official Statement, as of its date and as of
the date hereof, and the Official Statement, as of its date and as of the
Closing Date, are true, correct and complete in all material respects and do
not include any untrue statement of a material fact or omit to state any
material fact necessary to make such statements, in light of the
circumstances under which such statements were made, not misleading, and
no event has occurred since the respective dates of the Preliminary Official
Statement and the Official Statement which should be disclosed therein in
order to make the statements and information therein not misleading,
provided that, as to information related to DTC and its book-entry-only
system, the Issuer relies solely on the information provided by DTC;
(xi)
A specimen of the Bonds;
(xii)
A certificate, dated the Closing Date, of appropriate representatives
of the Issuer in form and substance satisfactory to Bond Counsel and counsel to the
Underwriter (A) setting forth the facts, estimates and circumstances in existence on
the Closing Date which establish that it is not expected that the proceeds of the
Bonds will be used in a manner that would cause the Bonds to be “arbitrage bonds”
within the meaning of Section 148 of the Internal Revenue Code of 1986, as
15
amended (the “Code”), and any applicable regulations (whether final, temporary or
proposed), issued pursuant to the Code, and (B) certifying that to the best of their
knowledge and belief, there are no other facts, estimates or circumstances that
would materially change the conclusions, representations and expectations
contained in such certificate;
(xiii) Any other certificates and opinions required by the Bond Resolution
for the issuance thereunder of the Bonds;
(xiv)
A counterpart original of the Official Statement manually executed
on behalf of the Issuer by the Chairman of the Board of Directors of the Issuer;
(xv)
The filing copy of the Information Return Form 8038-G (IRS) for
the Bonds;
(xvi)
The filing copy of the Report of Bond and Security Issuance for the
Arizona Department of Administration pursuant to Section 35-501(B), Arizona
Revised Statutes;
(xvii) The opinions of counsel to certain other landowners within the
boundaries of the Issuer who are a party to the Waiver Agreement (not including
the Owner), addressed to the Issuer, Bond Counsel and the Underwriter, dated the
Closing Date, covering such matters as the Issuer, Bond Counsel and the
Underwriter may reasonably request; and
(xviii) Such additional legal opinions, certificates, instruments and other
documents as the Underwriter or counsel to the Underwriter may reasonably deem
necessary to satisfy the conditions to the issuance of the Bonds required by the
Bond Resolution, to evidence the truth and accuracy, as of the date hereof and as
of the Closing Date, or prior to such date, of the representations and warranties of
the Issuer and the Owner contained herein and of the statements and information
contained in the Official Statement and the due performance or satisfaction by the
Issuer and the Owner on or prior to the Closing Date of all the respective
agreements and covenants then to be performed and all conditions then to be
satisfied by the Issuer and the Owner.
All of the opinions, letters, certificates, instruments and other documents mentioned
above or elsewhere in this Purchase Contract shall be deemed to be in compliance with the
provisions hereof if, but only if, they are in form and substance satisfactory to the Underwriter.
If the Issuer and the Owner shall be unable to satisfy the conditions to the
obligations of the Underwriter to purchase, to accept delivery of and to pay for the Bonds contained
in this Purchase Contract, or if the obligations of the Underwriter to purchase, to accept delivery
of and to pay for the Bonds shall be terminated for any reason permitted by this Purchase Contract,
this Purchase Contract shall terminate and neither the Underwriter nor the Issuer shall be under
any further obligation hereunder, except that the respective obligations of the Issuer and the
Underwriter set forth in Section 9(c) hereof shall continue in full force and effect.
16
8.
Termination. The Underwriter shall have the right to cancel its obligation to
purchase the Bonds and to terminate this Purchase Contract by written notice to the Issuer if, at
any time after the execution of this Purchase Contract to and including the Closing Date, in the
Underwriter’s sole and reasonable judgment, 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 the occurrence of any of the following:
(a)
an amendment to the Constitution of the United States or the State shall
have been passed or legislation shall be enacted by or introduced in the Congress of the
United States or the legislature of any state having jurisdiction of the subject matter or
legislation pending in the Congress of the United States shall have been amended or
legislation (whether or not then introduced) shall have been recommended to the Congress
of the United States or to any state having jurisdiction of the subject matter or otherwise
endorsed for passage (by press release, or other form of notice or otherwise) by the
President of the United States, the Treasury Department of the United States, the Internal
Revenue Service or any member of the Congress of the United States or the State
legislature or favorably reported for passage to either House of the Congress of the United
States by any committee of such House to which such legislation has been referred for
consideration, a decision by a court of the United States or of the State or the United States
Tax Court shall be rendered, or an order, ruling, regulation (final, temporary or proposed),
press release, statement or other form of notice by or on behalf of the Treasury Department
of the United States, the Internal Revenue Service or other governmental agency shall be
made or proposed, the effect of any or all of which would be to impose, directly or
indirectly, federal income taxation or State income taxation upon income of the general
character to be derived by the Issuer pursuant to the Bond Resolution, or upon interest
received on obligations of the general character of the Bonds, or, with respect to State
taxation, of the interest on the Bonds as described in the Official Statement, or other action
or events shall have transpired which may have the purpose or effect, directly or indirectly,
of changing the federal income tax consequences or State income tax consequences of any
of the transactions contemplated herein or affecting the tax status of the Issuer, its property
or income, its securities (including the Bonds) or the interest thereon, or any tax exemption
granted or authorized by State legislation;
(b)
legislation introduced in or enacted (or resolution passed) by the Congress
of the United States or recommended for passage (whether or not then introduced) by the
President of the United States, or an order, decree, or injunction issued by any court of
competent jurisdiction, or an order, ruling, regulation (final, temporary, or proposed),
official statement, press release or other form of notice issued or made by or on behalf of
the Securities and Exchange Commission (the “SEC”), or any other governmental agency
having jurisdiction of the subject matter, to the effect that obligations of the general
character of the Bonds, including any or all underlying arrangements, are not exempt from
registration under or other requirements of the Securities Act of 1933, as amended, or that
the Bond Resolution is not exempt from qualification under or other requirements of the
Trust Indenture Act of 1939, as amended, or that the issuance, offering, or sale of
obligations of the general character of the Bonds, including any or all underlying
arrangements, as contemplated hereby or by the Official Statement or otherwise, is or
would be in violation of the federal securities law as amended and then in effect;
17
(c)
any state blue sky or securities commission or other governmental agency
or body shall have withheld registration, exemption or clearance of the offering of the
Bonds as described herein, or issued a stop order or similar ruling relating thereto;
(d)
a general suspension of trading in securities on the New York Stock
Exchange, the American Stock Exchange or any other national securities exchange shall
be in force or other disruptive events, occurrences or conditions in the securities or debt
markets shall have occurred, or the establishment of minimum prices on any such
exchange, the establishment of material restrictions (not in force as of the date hereof) upon
trading securities generally by any governmental authority or any national securities
exchange, a general banking moratorium declared by federal, State of New York, or State
officials authorized to do so, or a material disruption or deterioration in the fixed income
or municipal securities market;
(e)
the New York Stock Exchange or other national securities exchange or any
governmental authority, shall impose, as to the Bonds or as to obligations of the general
character of the Bonds, any material restrictions not now in force, or increase materially
those now in force, with respect to the extension of credit by, or the charge to the net capital
requirements of, the Underwriter;
(f)
any amendment to the federal or state Constitution or action by any federal
or state court, legislative body, regulatory body, or other authority materially adversely
affecting the tax status of the Issuer, its property, income securities (or interest thereon), or
the validity or enforceability of the assessments or the levy of taxes to pay principal of and
interest on the Bonds;
(g)
any event occurring, or information becoming known which, in the
judgment of the Underwriter, makes untrue in any material respect any statement or
information contained in the Official Statement, or has the effect that the Official Statement
contains any untrue statement of material fact or omits to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(h)
there shall have occurred since the date of this Purchase Contract any
materially adverse change in (i) the affairs or financial condition of the Issuer or the Owner,
(ii) the Bond Resolution, (iii) the Issuer Documents or (iv) the source of payment of the
Bonds as the foregoing matters are described in the Preliminary Official Statement or the
Official Statement, which in the professional judgment of the Underwriter materially
impairs the investment quality of the Bonds;
(i)
(i) the United States shall have become engaged in hostilities which have
resulted in a declaration of war or a national emergency, (ii) there shall have occurred any
other outbreak or escalation of hostilities or a national or international calamity or crisis,
financial or otherwise, or escalation thereof, (iii) a downgrade of the sovereign debt rating
of the United States by any major credit rating agency or payment default on United States
Treasury obligations shall have occurred, or (iv) a default with respect to the debt
obligations of, or the institution of proceedings under any federal bankruptcy laws by or
18
against any state of the United States or any city, county or other political subdivision
located in the United States having a population of over 1,000,000 shall have occurred;
(j)
any fact or event shall exist or have existed that, in the Underwriter’s
judgment, requires or has required an amendment of or supplement to the Official
Statement;
(k)
there shall have occurred or any notice shall have been given of any
intended review, downgrading, suspension, withdrawal, or negative change in credit watch
status by any national rating service to any of the Issuer’s obligations;
(l)
the purchase of and payment for the Bonds by the Underwriter, or the resale
of the Bonds by the Underwriter, on the terms and conditions herein provided shall be
prohibited by any applicable law, governmental authority, board, agency or commission;
or
(m)
any litigation shall be instituted or be pending at the time of the Closing to
restrain or enjoin the sale of the Bonds, or in any way contesting or affecting any authority
for or the validity of the proceedings authorizing and approving the Bond Resolution, the
Issuer Documents or the existence or powers of the Issuer with respect to its obligations
under the Issuer Documents.
9.
Expenses.
(a)
The Underwriter shall be under no obligation to pay, and the Issuer shall
pay, but only from proceeds of the sale of the Bonds, amounts contributed by the Owner
or other legally available funds of the Issuer should the Issuer determine to apply funds for
such purposes, any expenses incident to the performance of the Issuer’s obligations
hereunder, including, but not limited to (i) the cost of preparation and printing of the Bonds
and preparation and printing or posting of the Preliminary Official Statement and the
Official Statement; (ii) the fees and disbursements of Bond Counsel and counsel to the
Underwriter; (iii) the fees and disbursements of the Paying Agent/Registrar; (iv) the fees
and disbursements of Hilltop Securities Inc., as municipal advisor to the Issuer; (v) the fees
and disbursements of any other engineers, accountants, and other experts, consultants or
advisers retained by the Issuer; and (vi) reimbursement of normally occurring “out of
pocket” expenses incurred by the Underwriter on the Issuer’s behalf.
(b)
The Underwriter shall pay (i) the cost of any Blue Sky Survey and Legal
Investment Memorandum; (ii) all advertising expenses in connection with the public
offering of the Bonds; and (iii) all other expenses incurred by it in connection with the
public offering of the Bonds.
(c)
If this Purchase Contract shall be terminated by the Underwriter because of
any failure or refusal on the part of the Issuer to comply with the terms or to fulfill any of
the conditions of this Purchase Contract, or if for any reason the Issuer shall be unable to
perform its obligations under this Purchase Contract, the Issuer will reimburse the
Underwriter for all “out-of-pocket” expenses (including the fees and disbursements of
19
counsel to the Underwriter) reasonably incurred by the Underwriter in connection with this
Purchase Contract or the offering contemplated hereunder.
(d)
The Issuer acknowledges that it has had an opportunity, in consultation with
such advisors as it may deem appropriate, if any, to evaluate and consider the fees and
expenses being incurred as part of the issuance of the Bonds.
10.
Notices. Any notice or other communication to be given to the Issuer under this
Purchase Contract may be given by delivering the same in writing to the address set forth on the
first page of this Purchase Contract, and any notice or other communication to be given to the
Underwriter under this Purchase Contract may be given by delivering the same in writing to
Raymond James & Associates, Inc., 8501 N. Scottsdale Road, Suite 250, Scottsdale, Arizona
85253, Attention: Nicholas J. Dodd, Managing Director.
11.
Parties in Interest. This Purchase Contract as heretofore specified shall constitute
the entire agreement between us and is made solely for the benefit of the Issuer and the Underwriter
(including successors or assigns of the Underwriter), and no other person shall acquire or have any
right hereunder or by virtue hereof. This Purchase Contract may not be assigned by the Issuer.
All of the Issuer’s representations, warranties and agreements contained in this Purchase Contract
shall remain operative and in full force and effect, regardless of (a) any investigations made by or
on behalf of the Underwriter, (b) delivery of and payment for the Bonds pursuant to this Purchase
Contract, and (c) any termination of this Purchase Contract.
12.
Effectiveness. This Purchase Contract shall become effective upon the acceptance
hereof by the Issuer and shall be valid and enforceable at the time of such acceptance.
13.
Choice of Law. This Purchase Contract shall be governed by and construed in
accordance with the law of the State.
14.
Severability. If any provision of this Purchase Contract shall be held or deemed to
be or shall, in fact, be invalid, inoperative or unenforceable as applied in any particular case in any
jurisdiction or jurisdictions, or in all jurisdictions because it conflicts with any provisions of any
Constitution, statute, rule of public policy, or any other reason, such circumstances shall not have
the effect of rendering the provision in question invalid, inoperative or unenforceable in any other
case or circumstance, or of rendering any other provision or provisions of this Purchase Contract
invalid, inoperative or unenforceable to any extent whatever.
15.
Business Day. For purposes of this Purchase Contract, “business day” means any
day on which the New York Stock Exchange is open for trading.
16.
Section Headings. Section headings have been inserted in this Purchase Contract
as a matter of convenience of reference only, and it is agreed that such section headings are not a
part of this Purchase Contract and will not be used in the interpretation of any provisions of this
Purchase Contract.
17.
Counterparts. This Purchase Contract may be executed in several counterparts each
of which shall be regarded as an original (with the same effect as if the signatures thereto and
hereto were upon the same document) and all of which shall constitute one and the same document.
20
18.
Cancellation of Purchase Contract. As required by the provisions of Section 38-
511, Arizona Revised Statutes, notice is hereby given that the State, its political subdivisions
(including the Issuer) or any department or agency of either may, within three years after its
execution, cancel any contract, without penalty or further obligation, made by the State, its political
subdivisions, or any of the departments or agencies of either if any person significantly involved
in initiating, negotiating, securing, drafting or creating the contract on behalf of the State, its
political subdivisions, or any of the departments or agencies of either is, at any time while the
contract or any extension of the contract is in effect, an employee or agent of any other party to
the contract in any capacity or a consultant to any other party of the contract with respect to the
subject matter of the contract. The cancellation shall be effective when written notice from the
Governor or the chief executive officer or governing body of the political subdivision is received
by all other parties to the contract unless the notice specifies a later time. The State, its political
subdivisions or any department or agency of either may recoup any fee or commission paid or due
to any person significantly involved in initiating, negotiating, securing, drafting or creating the
contract on behalf of the State, its political subdivisions or any department or agency of either from
any other party to the contract arising as the result of the contract. This Section 18 is not intended
to expand or enlarge the rights of the Issuer hereunder except as required by such Section 38-511,
Arizona Revised Statutes. Each of the parties hereto hereby certifies that it is not presently aware
of any violation of Section 38-511, Arizona Revised Statutes which would adversely affect the
enforceability of this Purchase Contract and covenants that it shall take no action which would
result in a violation of such Section 38-511, Arizona Revised Statutes.
19.
Electronic Signature. The electronic signature of a party to this Purchase Contract
shall be as valid as an original signature of such party and shall be effective to bind such party to
this Purchase Contract. For purposes hereof: (a) “electronic signature” means a manually signed
original signature that is then transmitted by electronic means; and (b) “transmitted by electronic
means” means sent in the for of a facsimile or sent via the internet as a portable document format
(“PDF”) or other replicating image attached to an electronic mail or internet message.
[Signature page follows.]
[Signature page to Purchase Contract]
If you agree with the foregoing, please sign the enclosed counterpart of this
Purchase Contract and return it to the Underwriter. This Purchase Contract shall become a binding
agreement between you and the Underwriter when at least the counterpart hereof shall have been
signed by or on behalf of each of the parties hereto and the Indemnity Letter has been delivered as
provided herein.
Very truly yours,
RAYMOND JAMES & ASSOCIATES, INC.
...................................................................................
Nicholas J. Dodd, Managing Director
ACCEPTED THIS ____ DAY OF
__________ 2025 at ______ __.M.
FLOREO AT TERAVALIS COMMUNITY
FACILITIES DISTRICT (CITY OF BUCKEYE,
ARIZONA)
By…………………………………………………...
District Treasurer
APPROVED AS TO FORM:
GUST ROSENFELD P.L.C.,
Attorney for the District
………………………………………..
Schedule-1
SCHEDULE
$_____,000
WESTPARK COMMUNITY FACILITIES DISTRICT
(CITY OF BUCKEYE, ARIZONA)
SPECIAL ASSESSMENT DISTRICT NO. 2
SPECIAL ASSESSMENT REVENUE BONDS, SERIES 2025
Dated Date: _____, 2025
Maturity
(July 1)
Principal
Amount
Interest
Rate
Yield
$
%
%
[*Subject to “hold-the-offering-price rule” described herein.]
Redemption Provisions:
Special Optional Redemption. The Bonds will be redeemed at the option of the
District in whole or in part on any Interest Payment Date, upon not more than 60 nor less than 30
days’ prior notice, upon payment of the applicable redemption price which will consist of the
principal amount of the Bonds so redeemed, plus interest, if any, on the Bonds so redeemed from
the most recent Interest Payment Date to the applicable redemption date without premium (i) if
and to the extent on or after the completion of the Public Infrastructure (as defined in the Official
Statement) amounts are transferred from the Acquisition Fund (as defined in the Bond Resolution)
for such purpose, (ii) from the prepayment of any Special Assessment by the owner of any
Assessed Lot (as defined in the Official Statement), and (iii) from the proceeds from the sale of
any delinquent Special Assessments, to the extent such proceeds are not used to replenish the
Reserve Fund to an amount equal to the Reserve Fund Requirement (each term as defined in the
Official Statement).
Optional Redemption. The Bonds maturing on or after July 1, 20___, will be
redeemable, on or after July 1, 20__, at the option of the District in whole on any date or, from
time to time, in part on any Interest Payment Date, upon not more than 60 nor less than 30 days’
prior notice, upon payment of the applicable redemption price which will consist of the principal
amount of the Bonds so redeemed plus interest, if any, on the Bonds so redeemed from the most
recent Interest Payment Date to the applicable redemption date without premium.
Schedule-2
Mandatory Redemption. The Bonds maturing in the following years will be
redeemed on the following redemption dates and in the following (sinking fund) amounts upon
not more than 60 nor less than 30 days’ prior notice, upon payment of the applicable redemption
price which will consist of the principal amount of the Bonds so redeemed plus interest, if any, on
the Bonds so redeemed from the most recent Interest Payment Date to the applicable redemption
date without premium:
Redemption Date
(July 1)
Principal
Amount
Bonds Maturing in 20___
$
_______________
* Maturity
Whenever Bonds are redeemed (other than pursuant to mandatory redemption) or
delivered to the Paying Agent/Registrar for cancellation, the principal amount of the Bonds of such
maturity so retired shall satisfy and be credited against the mandatory redemption requirements
for such maturity on a pro-rata basis, to the extent practicable; provided, however that each
remaining mandatory payment shall be in an amount which is an authorized denomination.
A-1
EXHIBIT A
FORM OF ISSUE PRICE CERTIFICATE
Raymond James & Associates, Inc. (“Raymond James”), as underwriter for the Westpark
Community Facilities District (City of Buckeye, Arizona) Special Assessment District No. 2
Special Assessment Revenue Bonds, Series 2025 (the “Bonds”), based on its knowledge regarding
the sale of the Bonds, certifies as of this date as follows:
(1)
Issue Price.
[If the issue price is determined using only the general rule (actual sales of at least
10%) in Regulations § 1.148-1(f)(2)(i):
(A)
As of the date of this certificate, for each Maturity listed on Schedule A as
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 attached hereto (the “Sale Price” as
applicable each Maturity).]
[If the issue price is determined using a combination of actual sales (Regulations
§ 1.148-1(f)(2)(i)) and hold-the-offering-price (Regulations § 1.148-1(f)(2)(ii):
(A)
As of the date of this certificate, for each Maturity listed on Schedule A as
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 attached hereto (the “Sale Price” as
applicable to each Maturity of the General Rule Maturities).
(B)
On or before the Sale Date, Raymond James offered the Maturities listed on
Schedule A as the “Hold-the-Offering-Price Maturities” to the Public for purchase at the respective
initial offering prices listed in Schedule A attached hereto (the “Initial Offering Prices” as
applicable to each Maturity of the Hold-the-Offering-Price Maturities). A copy of the pricing wire
or equivalent communication for the Bonds is attached to this certificate as Schedule B.
(C)
As set forth in the Purchase Contract, dated [Pricing Date], between
Raymond James and the Issuer, Raymond James has agreed in writing that, (i) for each Maturity
of the Hold-the-Offering-Price Maturities, it would neither offer nor sell any portion 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, Raymond James has not 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.
(D)
The aggregate of the Sale Prices of the General Rule Maturities and the
Initial Offering Prices of the Hold-the-Offering-Price Maturities is $[______] for the Bonds (the
“Issue Price”).]
A-2
[If the issue price is determined using only the hold-the-offering-price rule in
Regulations § 1.148-1(f)(2)(ii):
(A)
Raymond James offered, on or before the Sale Date, each Maturity of the
Bonds to the Public for purchase at the respective initial offering prices listed in Schedule A
attached hereto (the “Initial Offering Prices”). A copy of the pricing wire or equivalent
communication for the Bonds is attached to this certificate as Schedule A. The aggregate of the
Initial Offering Prices of each Maturity is $[_______] (the “Issue Price”).
(B)
As set forth in the Purchase Contract, dated [Pricing Date], between
Raymond James and the Issuer, Raymond James has agreed in writing that, (i) for each Maturity
of the Bond, it would neither offer nor sell any portion 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, Raymond James has not offered or sold any Maturity of the Bond at a price that is
higher than the respective Initial Offering Price for that Maturity of the Bond during the Holding
Period.]
[(B),(E), or (C)]
Definitions. [NOTE: If issue price is determined using only
the general rule (actual sales of 10%), delete the definitions of “Holding Period” and “Sale Date.”]
[“Holding Period” means, for each Hold-the-Offering-Price Maturity of the Bonds, 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 ([DATE]), or (ii) the date on which Raymond James has sold at least 10% of
such Maturity of the Bonds to the Public at a price that is no higher than the Initial Offering Price
for such Maturity.]
“Issuer” means Westpark Community Facilities District (City of Buckeye, Arizona).
“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.
“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.
[“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 Issue is [DATE].]
“Underwriter” means (i) any person that agrees pursuant to a written contract with the
Issuer (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
A-3
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).
All capitalized terms not defined in this certificate have the meaning set forth in the Issuer’s
Tax Certificate.
The signer is an officer of Raymond James and duly authorized to execute and deliver this
Certificate. The representations set forth in this certificate are limited to factual matters only.
Nothing in this certificate represents Raymond James’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 Issuer with respect to certain of the representations set forth in the Tax
Certificate of the Issuer and with respect to compliance with the federal income tax rules affecting
the Bonds, and by Gust Rosenfeld P.L.C., as bond counsel, 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 Issuer from time to time relating to the Bonds. Except as expressly set forth
above, the certifications set forth herein may not be relied upon or used by any third party or for
any other purpose.]
Dated: [Closing Date]
RAYMOND JAMES & ASSOCIATES, INC.
By:...................................................................
Title:................................................................
A-4
SCHEDULE A
$____,000
WESTPARK COMMUNITY FACILITIES DISTRICT
(CITY OF BUCKEYE, ARIZONA)
SPECIAL ASSESSMENT DISTRICT NO. 2
SPECIAL ASSESSMENT REVENUE BONDS, SERIES 2025
General Rule Maturities
Maturity Date
(July 1)
Principal
Amount
Interest
Rate
Yield
Price
Issue Price
$
%
%
%
$
[Hold-the-Offering-Price Maturities]
Maturity Date
(July 1)
Principal
Amount
Interest
Rate
Yield
Price
Issue Price
$
%
%
%
$
[*Yield and Price assume redemption on July 1, 20__, the earliest optional redemption
date.]
A-5
SCHEDULE B
[Actual Sales for Undersold Maturities as of the Closing Date]
[PRICING WIRE OR EQUIVALENT COMMUNICATION]
(Attached)
B-1
EXHIBIT B
FORM OF SUPPLEMENTAL OPINION OF BOND COUNSEL
[LETTERHEAD OF GUST ROSENFELD P.L.C.]
[Closing Date]
Raymond James & Associates, Inc.
8501 N. Scottsdale Road, Suite 250
Scottsdale, Arizona 85253
Re:
Westpark Community Facilities District (City of Buckeye, Arizona) Special
Assessment District No. 2 Special Assessment Revenue Bonds, Series 2025
We have acted as Bond Counsel to Westpark Community Facilities District (City
of Buckeye, Arizona) (the “Issuer”) in connection with the issuance this date by the Issuer of bonds
designated its Westpark Community Facilities District (City of Buckeye, Arizona) Special
Assessment District No. 2 Special Assessment Revenue Bonds, Series 2025, in the principal
amount of $[1,561,000] (the “Bonds”) and otherwise as special counsel to the Issuer including for
purposes relating to execution and delivery of the “Waiver Agreement” and the “CFD
Development Agreement” as such terms are defined in the hereinafter described Purchase
Contract. The Bonds are issued pursuant to the resolution adopted by the Board of Directors of
the Issuer on [July 1], 2025 (the “Bond Resolution”), are the subject of an Official Statement, dated
________, 2025 (the “Official Statement”), and are the subject of a Purchase Contract, dated
_______, 2025 (the “Purchase Contract”), by and between the Issuer and Raymond James &
Associates, Inc. (the “Underwriter”), a Bond Registrar, Transfer Agent and Paying Agent Contract,
dated as of [August] 1, 2025 (the “Paying Agent/Registrar Agreement”), by and between the Issuer
and U.S. Bank Trust Company, National Association, as Paying Agent/Registrar, the Blanket
Issuer Letter of Representations, by and between the Issuer and The Depository Trust Company
(the “DTC Letter”), and a Continuing Disclosure Undertaking from the Issuer, dated the date
hereof (the “Undertaking” and, collectively with the Paying Agent/Registrar Agreement, the
Waiver Agreement, the CFD Development Agreement, the DTC Letter and the Purchase Contract,
the “Issuer Documents”). You may rely on our opinion as Bond Counsel, dated of even date
herewith, with regard to the Bonds as if addressed to you.
In our capacity as Bond Counsel, and as special counsel as described hereinabove
to the Issuer, we have examined and relied upon:
(i)
A certified copy of the Bond Resolution (which authorized, among other matters,
execution and delivery of the Purchase Contract);
(ii)
An executed copy of the Paying Agent/Registrar Agreement;
(iii)
An executed copy of the Official Statement;
Raymond James & Associates, Inc.
Page 2
B-2
(iv)
An executed copy of the Purchase Contract;
(v)
An executed copy of the Waiver Agreement;
(vi)
An executed copy of the CFD Development Agreement;
(vii) An executed copy of the Undertaking;
(viii) An executed copy of the DTC Letter;
(ix)
Such other agreements, certificates (including particularly, but not by way of
limitation, representations of KEMF WP 2.2, LLC (the “Owner”), provided in the
Waiver Agreement and the CFD Development Agreement), opinions (including
particularly, but not by way of limitation, an opinion of Berens Blonstein PLC,
counsel to the Owner), letters and other documents, including all documents
delivered or distributed at the closing of the sale of the Bonds, as we have deemed
necessary or appropriate in rendering the opinions set forth herein; and
(x)
Such provisions of the Constitution and laws of the State of Arizona and the United
States of America as we believe necessary to enable us to render the opinions set
forth herein.
In our examination, we have assumed the authenticity of all documents submitted
to us as originals, the conformity to original copies of all documents submitted to us as certified
or photostatic copies, the authenticity of the originals of such latter documents and the accuracy of
the statements contained in such certificates. In connection with our representation of the Issuer
in the capacities described above, we have also participated in conferences from time to time with
representatives of the Issuer, the Underwriter, the City of Buckeye, Arizona, the Paying
Agent/Registrar and the Owner relating to the Official Statement and the Issuer Documents.
We are of the opinion, based upon the foregoing and subject to the reliance
hereinabove indicated and the qualifications hereinafter set forth, that under applicable law of the
State of Arizona and federal law of the United States of America in force and effect on the date
hereof:
1.
The Issuer is duly organized and validly existing as a community facilities
district for purposes set forth in Section 48-708(B), Arizona Revised Statutes, as amended,
pursuant to the Constitution and laws of the State of Arizona and has all requisite power and
authority thereunder (a) to adopt the Bond Resolution, (b) to authorize, execute, deliver and issue,
as applicable, the Bond Resolution, the Issuer Documents and the Bonds, (c) to approve, execute
and authorize the use and distribution of the Official Statement (including, as applicable, the
Preliminary Official Statement, dated ___________, 2025 (the “Preliminary Official Statement”),
with respect to the Bonds) and (d) to carry out and consummate the transactions contemplated by
the Official Statement, the Bond Resolution, the Issuer Documents and the Bonds (including
performing the applicable obligations thereunder).
Raymond James & Associates, Inc.
Page 3
B-3
2.
Adoption of the Bond Resolution; authorization, execution, delivery and
issuance, as applicable, of, and the due performance of the obligations of the Issuer under, the
Issuer Documents and the Bonds and the approval, execution and authorization of the use and
distribution of the Official Statement (including, as applicable, the Preliminary Official Statement)
by the Issuer under the circumstances contemplated thereby do not and will not in any material
respect conflict with or constitute on the part of the Issuer a breach of or default under any
agreement or other instrument to which the Issuer is a party or of any existing law, ordinance,
administrative regulation, court order or consent decree to which the Issuer is subject.
3.
No consent of any other party, and no consent, license, approval or
authorization of, exemption by or registration with any governmental body, authority, bureau or
agency (other than those that have been obtained or will be obtained prior to the delivery of the
Bonds), is required in connection with the adoption by the Issuer of the Bond Resolution or the
authorization, execution, delivery, issuance and performance, as applicable, by the Issuer of the
Issuer Documents and the Bonds and the consummation of the transactions contemplated by the
Official Statement.
4.
The Issuer has duly (a) adopted the Bond Resolution, (b) authorized (i) the
authorization, execution, delivery and issuance, as applicable of, and the performance of its
obligations under, the Issuer Documents and the Bonds and (ii) the taking of the actions required
on the part of the Issuer to carry out, give effect to and consummate the transactions contemplated
by the Official Statement, the Bond Resolution, the Issuer Documents and the Bonds and (c) levied
the special assessments from which the Bonds are payable. The liens with respect to such special
assessments have been perfected pursuant to applicable law and as described in the Official
Statement. The Issuer has complied with all applicable provisions of law and has taken all actions
required to be taken by it to the date hereof in connection with the transactions contemplated by
the aforesaid documents.
5.
The Issuer Documents and the Bond Resolution have been duly authorized,
adopted, executed and delivered, as applicable, by the Issuer and, assuming due and valid
authorization, execution and delivery by the other party or parties thereto, the Issuer Documents
constitute legal, valid and binding obligations of the Issuer enforceable in accordance with their
terms.
6.
Based solely upon a search of the available records of the Superior Court in
and for the State of Arizona, County of Maricopa and the United States District Court for the
District of Arizona for the five-year period ending ____________, and upon inquiry of Issuer
officials, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or
by any court, governmental agency, public board or body, pending or overtly threatened against
or affecting the Issuer, and there is no basis therefor, (a) which in any way questions the powers
of the Issuer referred to hereinabove or the validity of the proceedings taken by the Issuer in
connection with the sale and issuance of the Bonds, (b) wherein an unfavorable decision, ruling or
finding would adversely affect the transactions contemplated by the Official Statement, the Bond
Resolution, the Issuer Documents or the Bonds or would in any way adversely affect the validity
or enforceability of the Bond Resolution, the Issuer Documents or the Bonds (or of any other
Raymond James & Associates, Inc.
Page 4
B-4
instrument required or contemplated for use in consummating the transactions contemplated
thereby or by the Purchase Contract or by the Official Statement) or (c) contesting in any way the
completeness or accuracy of the Preliminary Official Statement or the Official Statement. Further,
there are no lawsuits pending or overtly threatened against the Issuer which question the right of
the Issuer to levy, receive and pledge special assessments or taxes, nor lawsuits pending or overtly
threatened against the Issuer which, if decided adversely to the Issuer, would, individually or in
the aggregate, have a material adverse effect on the financial condition of the Issuer or impair the
ability of the Issuer to materially comply with all the requirements set forth in the Official
Statement, the Bond Resolution, the Issuer Documents or the Bonds.
7.
The information contained in the Preliminary Official Statement and the
Official Statement in the tax caption on the cover thereof, under the headings “INTRODUCTION,”
“THE BONDS,” “SECURITY FOR AND SOURCES OF PAYMENT OF THE BONDS,”
“LITIGATION,” “QUALIFIED TAX-EXEMPT OBLIGATIONS,” “TAX EXEMPTION,”
[“ORIGINAL ISSUE DISCOUNT,” “BOND PREMIUM,”] “CONTINUING DISCLOSURE”
(except as it relates to compliance with prior continuing disclosure obligations of the Issuer) and
“RELATIONSHIPS AMONG PARTIES” (solely as it relates to Bond Counsel) therein and in
APPENDIX B - “FORM OF APPROVING LEGAL OPINION OF BOND COUNSEL,”
APPENDIX D - “FORM OF CONTINUING DISCLOSURE UNDERTAKING,” and
APPENDIX F - “CERTAIN STATUTORY PROVISIONS APPLICABLE TO THE
FORECLOSURE PROCESS” insofar as such information purports to summarize certain
provisions of federal or state law or of the Bonds, fairly summarizes the information which it
purports to summarize. The purpose of our professional engagement did not include establishing
or confirming factual matters in the Preliminary Official Statement or in the Official Statement,
and we have not undertaken to independently verify any such factual matters. Furthermore, based
solely on our participation in the transaction as Bond Counsel, nothing has come to our attention
that would lead us to believe that the information and statements in the Preliminary Official
Statement, as of its date and as of the date of sale of the Bonds, and the Official Statement, as of
its date and as of the date hereof, contained or contain any untrue statement of a material fact or
omitted or omit, respectively, to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; provided
that, no view is expressed as to the financial statements of the Issuer, any other financial, forecast,
technical or statistical data, and any information in the Preliminary Official Statement or the
Official Statement respecting The Depository Trust Company.
8.
It is not necessary in connection with the sale and issuance of the Bonds to
the public to register the Bonds under the Securities Act of 1933, as amended, or to qualify the
Bond Resolution under the Trust Indenture Act of 1939, as amended.
Our opinions expressed in paragraph 5 hereof are qualified to the extent that the
enforceability of the Issuer Documents are dependent upon the due authorization, execution and
delivery of (and authority to perform lawfully) the Issuer Documents by the other parties thereto
and to the extent that the enforceability of the Issuer Documents may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights and the
exercise of judicial discretion in accordance with general principles of equity, including possible
Raymond James & Associates, Inc.
Page 5
B-5
refusal by a particular court to grant certain equitable remedies such as specific performance with
respect to the enforcement of any provision of such documents. We express no opinion as to the
enforceability of any provisions of the Issuer Documents (i) restricting access to legal or equitable
remedies, (ii) purporting to establish evidentiary standards or waiving or otherwise affecting any
rights to notice, demand or exhaustion of collateral, (iii) relating to self-help, subrogation,
indemnification, delay or omission to enforce rights or remedies, severability or marshalling of
assets or (iv) purporting to grant to the owners of the Bonds or to any party to the Issuer Documents
(other than the Issuer) any rights or remedies not specifically set forth therein.
This opinion is furnished by us as Bond Counsel. No attorney-client relationship
has existed or exists between our firm and the addressee in connection with the Bonds or by virtue
of this opinion. This opinion is solely for the addressee’s benefit and, except as specifically stated
herein, is not to be used, circulated, quoted or otherwise referred to or relied upon for any other
purpose or by any other person. This opinion speaks only as of its date, and no republication is
intended upon the sale, assignment, conveyance or transfer of the Bonds by the Underwriter.
Respectfully submitted,
C-1
EXHIBIT C
FORM OF OPINION OF COUNSEL TO UNDERWRITER
[LETTERHEAD OF GREENBERG TRAURIG]
________, 2025
Raymond James & Associates, Inc.
8501 N. Scottsdale Road
Suite 250
Scottsdale, Arizona 85253
Re:
Westpark Community Facilities District (City of Buckeye, Arizona) Special
Assessment District No. 2 Special Assessment Revenue Bonds, Series 2025
We have acted as counsel to you in connection with the purchase by you of the
captioned Bonds (collectively, the “Bonds”). This opinion is rendered pursuant to the Purchase
Contract, dated _________, 2025 (the “Purchase Agreement”), between you and Westpark
Community Facilities District (City of Buckeye, Arizona). Capitalized terms not otherwise
defined herein shall have the meanings assigned to them in the Purchase Agreement.
As your counsel, we have examined the Preliminary Official Statement, the Official
Statement, the Bond Resolution, the Undertaking, the Securities Act of 1933, as amended (the
“1933 Act”), the Trust Indenture Act of 1939, as amended (the “1939 Act”), the rules, regulations
and interpretations under the 1933 Act and the 1939 Act, and Rule 15c2-12 (the “Rule”) prescribed
under the Securities Exchange Act of 1934, as amended (the “Act”). In addition, we have
examined originals (or copies certified or otherwise identified to our satisfaction) of such other
instruments, certificates and documents as we have deemed necessary or appropriate for the
purposes of the opinions rendered below. In such examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as originals and the conformity
to the original documents of all documents submitted to us as copies. As to any facts material to
our opinion, we have, when relevant facts were not independently established, relied upon the
aforesaid instruments, certificates and other documents.
In providing the statement of belief set forth in the paragraph immediately below,
reference is made to the Preliminary Official Statement and the Official Statement. As your
counsel, we reviewed the Preliminary Official Statement and the Official Statement and
participated in conferences in which the contents of the Preliminary Official Statement and the
Official Statement and other matters were discussed. The purpose of our professional engagement
was not to establish or to confirm factual matters set forth in the Preliminary Official Statement or
in the Official Statement, and we have not undertaken to verify independently any of such factual
matters.
Subject to the foregoing, and on the basis of the information we gained in the course
of performing the services referred to above, we confirm to you that no facts have come to the
C-2
attention of the attorneys in our firm rendering legal services in connection with this matter that
cause them to believe that the Preliminary Official Statement, as of its date or as of the date of the
Purchase Agreement, or the Official Statement, as of its date or as of the date hereof, contained or
contains any untrue statement of a material fact or omitted or omits to state any material fact
necessary to make the statements made therein, in the light of the circumstances under which they
were made, not misleading; provided, however, we do not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the Preliminary Official Statement or the
Official Statement, nor do we express any belief with respect to any financial and statistical data
and forecasts, projections, numbers, estimates, assumptions, and expressions of opinion,
information concerning The Depository Trust Company and the book-entry system for the Bonds,
and information under the headings “QUALIFIED TAX-EXEMPT OBLIGATIONS,” “TAX
EXEMPTION,” “ORIGINAL ISSUE DISCOUNT,” “BOND PREMIUM” and in APPENDIX B
– “FORM OF APPROVING LEGAL OPINION OF BOND COUNSEL,” APPENDIX C –
“EXECUTIVE SUMMARY OF APPRAISAL,” or APPENDIX F – “CERTAIN STATUTORY
PROVISIONS APPLICABLE TO THE FORECLOSURE PROCESS” contained or incorporated
by reference in the Preliminary Official Statement or the Official Statement and its Appendices,
which we expressly exclude from the scope of this paragraph.
We also have rendered legal advice and assistance to you as to the requirements of
the Rule prescribed under the Act, in connection with your review, for purposes of the Rule, of the
Undertaking. Based upon our examination of the items referenced in this letter, including the
Undertaking and the Rule, and subject to the limitations expressed above, we are of the opinion
that, under existing law, the Undertaking satisfies paragraph (b)(5)(i) of the Rule, which requires
an undertaking for the benefit of the holders, including beneficial owners, of the Bonds to provide
certain annual financial information and event notices at the time and in the manner required by
the Rule.
Based upon our examination of the items referenced in this letter, we are further of
the opinion that it is not necessary in connection with the sale of the Bonds to the public to register
the Bonds under the 1933 Act or to qualify the Bond Resolution under the 1939 Act. For purposes
of rendering such opinion, we have relied on the legal conclusions expressed by Gust Rosenfeld
P.L.C., as Bond Counsel, as to the validity of the Bonds and the exclusion of interest on the Bonds
from the gross income of their owners for federal income tax purposes.
We have not investigated independently the accuracy of any legal conclusions upon
which we have relied that are expressed by other counsel; however, attorneys in our firm rendering
legal services in connection with this matter are not presently aware of any information that leads
us to believe that it would be unreasonable to rely upon those legal conclusions.
References in this letter to “attorneys in our firm rendering legal services in
connection with this matter” refer only to those attorneys now with this firm who rendered legal
services in connection with our representation of you in this matter.
Our engagement with respect to the matters addressed in this letter is concluded
upon the delivery of this letter. The views expressed in this letter are as of, and are based upon the
law in effect on, the date of this letter. Those views may be affected by actions taken or omitted
or events occurring after the date of this letter, and we assume no obligation to revise or supplement
C-3
this letter or to determine or to inform any person if such law changes or if any such actions are
taken or omitted or any such events occur.
This letter is furnished solely for your benefit in connection with your purchase of the
Bonds, and this letter may not, without our prior express consent, be used, circulated, quoted or
otherwise referred to (except in lists or sets of closing documents), or be relied upon by any other
person or for any other purpose.
Respectfully submitted,
D-1
EXHIBIT D
FORM OF OPINION OF COUNSEL TO KEMF WP 2.2, LLC
[LETTERHEAD OF BERENS BLONSTEIN PLC]
_______, 2025
Raymond James & Associates, Inc.
8501 N. Scottsdale Road
Suite 250
Scottsdale, Arizona 85253
Westpark Community Facilities District
(City of Buckeye, Arizona)
c/o City of Buckeye, Arizona
530 E. Monroe Avenue
Buckeye, Arizona 85326
Re:
$______,000 Westpark Community Facilities District (City of Buckeye, Arizona)
Special Assessment District No. 2 Special Assessment Revenue Bonds, Series 2025
(the “Bonds”)
Ladies and Gentlemen:
We have acted as counsel to KEMF WP 2.2, LLC, an Arizona limited liability
company (the “Owner”), particularly in connection with the transactions provided for by the
documents referred to herein (collectively, the “Transaction”), in connection with the
establishment of Special Assessment District No. 2 (“SAD 2”) and the levy of assessments (the
“Assessment”) against the assessed parcels in SAD 2 and the sale and issuance of the Bonds sold
pursuant to a Purchase Contract, dated ________, 2025 (the “Purchase Contract”), by and between
Raymond James & Associates, Inc. (the “Underwriter”), and Westpark Community Facilities
District (City of Buckeye, Arizona) (the “District”). Any capitalized term used herein and not
defined shall have the meaning assigned to it in the Purchase Contract.
As such counsel, we have reviewed the following documents, each of which is dated as
of the date hereof unless otherwise indicated (collectively, the “Documents”):
1.
Westpark Community Facilities District (City of Buckeye, Arizona) Waiver
and Development Agreement Pertaining to the To Be Formed Special Assessment District No. 2,
recorded on June 10, 2025 as Maricopa County Recorder Document 2025-0333678, in the Official
Records of the Maricopa County Recorder, by and among the District, the Owner and certain
landowners within the District (the “Waiver and Development Agreement”).
D-2
2.
Development, Financing Participation and Intergovernmental Agreement
No. 1 for Westpark Community Facilities District (Buckeye, Arizona), dated as of August 5, 2023,
by and among the Town of Buckeye, Arizona (as predecessor to the City of Buckeye, Arizona,
referred to herein as the “City”), the Issuer and the Owner (which acquired rights under such
agreement as a result of its purchase of property from the prior owners of all land within the
boundaries of the Issuer) (the “CFD Development Agreement”).
3.
Preliminary Official Statement, dated ______, 2025 (the “Preliminary
Official Statement”) and the Official Statement, dated _______, 2025 (the “Official Statement”),
executed by the District.
4.
Indemnity Letter, dated _________, 2025 by the Owner to the Underwriter
and the District (the “Indemnity Letter” and, together with the Waiver and Development
Agreement and the CFD Development Agreement, the “Bond Documents”).
5.
[Certified Articles of Organization of the Owner from the Arizona
Corporation Commission, dated _________, (the “Owner Certificate of Formation”).]
6.
[Limited Liability Company Agreement of the Owner dated ___________].
7.
Certificate of Good Standing of the Owner, dated ______________ __,
2025, issued by the Arizona Corporation Commission.
9.
[Certificate of Secretary of Owner, dated ______________ __, 2025].
10.
Closing Certificate of Owner, dated _________, 2025 (the “Owner Closing
Certificate”).
11.
[Other Owner Organizational Documents – Owner Counsel to Complete].
The documents listed in items 5 through 11 are sometimes hereinafter referred to
collectively as the “Organizational Documents”.
We have also examined such certificates of public officials, certificates of representatives of the
Owner and such other documents as we have deemed relevant and necessary as a basis for the
opinions set forth below. We have relied upon certificates of public officials and of the Owner
with respect to the accuracy of material or factual matters contained in such certificates, which
were not independently established.
In rendering this opinion, we have assumed that:
1.
(a) Each of the other parties to the Bond Documents (the “Other Parties”) is duly
formed and validly existing; (b) the execution, delivery and performance of the Bond Documents by
each of the applicable Other Parties has been duly authorized by all corporate or limited liability
company action required of such Other Party; (c) each of the Other Parties has obtained all necessary
governmental consents, authorizations, approvals, permits or certificates that are required as a
condition to the execution and delivery of the Bond Documents by such Other Party and to the
consummation of the Transaction; (d) the Bond Documents constitute legal, valid, binding and
D-3
enforceable obligations of each of the Other Parties under federal law, the laws of the State of Arizona,
and the laws of any other applicable jurisdiction; (e) except for the Bond Documents, there are no
other documents or agreements between any of the Other Parties and others that would expand or
otherwise modify the obligations of the parties under the Bond Documents; (f) each of the Other
Parties has the power and authority under applicable laws and regulations to enter into and perform
the Transaction and has complied in all material respects with all applicable laws and regulations with
respect thereto; and (g) each of the Other Parties will at all times during the term of the Bond
Documents act in good faith and only in a manner that under the circumstances is commercially
reasonable.
2.
The Bond Documents accurately and completely describe and contain the parties’
mutual intent, understanding and business purposes, and there are no oral or written statements,
agreements, understandings or negotiations, nor any usage of trade or counsel of prior dealing among
the Other Parties that directly or indirectly modify, define, amend, supplement, or vary or purport to
modify, define, amend, supplement or vary any of the terms of the Bond Documents or any of the
parties’ rights or obligations thereunder by waiver or otherwise, and there are no facts or events (such
as fraud or duress) that have occurred in connection with the execution, acknowledgment and delivery
of the Bond Documents that would impair their enforceability.
3.
No fraud, misrepresentation, unilateral mistake or concealment has occurred in
connection with the Bond Documents, the Owner Closing Certificate, or any aspect of the
Transaction.
4.
The parties’ representations and warranties contained in the Bond Documents are
truthful and accurate.
5.
The Bond Documents to the extent required to be executed, ratified, notarized, filed,
recorded or indexed by the Other Parties to be effective (and any UCC-1 or other financing statements
required to perfect same) have been or will be timely and properly executed, ratified, notarized, filed,
recorded or indexed in the appropriate governmental offices and the filing party will timely file any
and all necessary continuation statements, and that all fees, charges, and taxes due and owing as of
this date have been paid.
6.
No interest, fees, charges or other benefits or compensation in the nature of interest
will be collected with respect to the Transaction that are not clearly specified in the Bond Documents
and that are not permitted by applicable law.
7.
At the time any of the Other Parties seeks to enforce its rights under the Bond
Documents, such Other Party will not be in breach thereof, the document will still be in force, and no
applicable statute of limitations will have expired.
8.
Each of the Other Parties will diligently and timely pursue its rights and remedies
under the Bond Documents in a commercially reasonable manner and in accordance with the law.
9.
All consents, approvals, licenses or authorizations by, and all notifications of and
filings with, any court, governmental body or other person required to be obtained or made in
connection with the Bond Documents and the Transaction have been so obtained or made; provided,
however, that the foregoing does not limit the opinions expressed herein as they relate to the Owner.
D-4
10.
Without investigation the completeness, genuineness and authenticity of any
document submitted to us as an original, the conformity to the original of any document submitted
to us as a copy, the authenticity of the original of such latter documents, the conformity to the
executed document of any document submitted to us as the form to be executed, the genuineness
of all signatures, and the legal competency and capacity of natural persons. We have assumed
without investigation that any certificate, representation (oral or otherwise), telegram, telex,
telecopy, email or other document on which we have relied, whether or not given or dated earlier
than the date hereof, is authentic and remains accurate insofar as relevant to this opinion from such
earlier date through and including the date hereof, and we are not aware of any facts inconsistent
with this assumption.
11.
The Owner holds the requisite title and rights to any real or personal property
involved in the Transaction or otherwise purported to be owned by it.
12.
All reports and other documents prepared by third party consultants relating to the
Transaction or any of the property within the District are true and accurate.
13.
The result of the application of Arizona law as specified in the Bond Documents
will not be contrary to a fundamental policy of the law of any other state with which the parties
may have material or relevant contact in connection with the Transaction and as to which there is
a materially greater interest in determining an issue of choice of law.
The opinions expressed in this letter are subject to the following qualifications, limitations
and exceptions:
1. Our opinions are limited by the internal laws of the State of Arizona (notwithstanding
Arizona choice-of-law rules). Accordingly, we express no opinion as to the possible impact upon the
matters of the laws, orders or judgments of any jurisdiction other than the local laws of the State of
Arizona (notwithstanding Arizona choice-of-law rules).
2. Whenever we indicate that our opinion is based on “our knowledge,” or words of similar
import, such opinion is based solely on the current actual knowledge, after due inquiry, of the firm’s
attorneys who have devoted substantive attention to matters related to the Transaction and knowledge
obtained as a result of conferences with officers and other representatives of the Owner. We have not
made any independent investigation or review of any matters whatsoever except as specifically set
forth herein, and we are relying solely on such specifically stated investigation or review.
3. We express no opinion concerning the legal validity and sufficiency of the acts of any
of the Other Parties.
4. The opinions herein are based upon and limited to the laws and facts now in effect, and
we assume no obligation to update, revise or supplement the opinion.
5. Our opinion is limited to the matters set forth herein and to the date hereof. No opinion
may be inferred or implied beyond the matters expressly stated herein. Our opinion is applicable only
to the addressee of this opinion and will not be applicable to any other person.
6. The enforceability of the Bond Documents is subject to:
D-5
a. Bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement,
receivership, conservatorship, moratorium and other similar laws now or hereafter enacted
affecting the enforcement of creditors’ and property rights generally.
b. The general principles of equity.
c. The qualification that certain waivers, procedures, remedies, indemnities,
consents to jurisdiction and other provisions of the Bond Documents may be unenforceable under
or limited by the law of the State of Arizona; provided, however, such possible unenforceability
or limitations will not render the Bond Documents invalid as a whole or substantially prevent the
practical realization of the principal benefits intended by the Bond Documents (except for the
economic consequences of procedural or other delay).
7. We express no opinion as to the enforceability of any indemnity provision with respect
to any claims or other matters that result from the negligence or misconduct of any indemnitee or
the failure of any indemnitee to act in a commercially reasonable manner.
8. We express no opinion as to the enforceability of any indemnity or contribution
provision with respect to any claims or other matters relating to or arising under federal or state
securities laws, as they may be held to violate public policy.
9. We express no opinion as to the compliance of the Bond Documents or, other than as
provided in Section 10, the offer and sale of the Bonds with any securities law or regulation.
10. Any opinion as to the enforceability of any document is limited to enforceability as
between the original parties thereto.
Based on the foregoing, and subject to the limitations, qualifications and assumptions set
forth herein, it is our opinion that:
1. The Owner is a limited liability company duly organized and validly existing under the
laws of the State of Arizona.
2. The Owner has the requisite limited liability company power and authority under the
laws of the State of Arizona and the Organizational Documents: (a) to carry out the terms and
conditions applicable to it under the Bond Documents; (b) to own and operate its properties
and assets as described in the Preliminary Official Statement and the Official Statement; and
(c) to carry out its business as such business is currently being conducted as described in the
Preliminary Official Statement and the Official Statement.
3. The execution, delivery and performance of the Bond Documents by the Owner and
the carrying out, giving effect to and consummation of the Transaction contemplated thereby
have been duly authorized by all necessary limited liability company action on the part of the
Owner, and the Bond Documents have been duly executed and delivered by the Owner.
4. The Bond Documents constitute valid and binding obligations of the Owner.
D-6
5. The execution and delivery of the Bond Documents by the Owner, and the performance
of its obligations thereunder, do not and will not violate the Organizational Documents.
6. To our actual knowledge, the execution and delivery of the Bond Documents by the
Owner will not cause a breach or default of (a) any material contract, indenture, instrument or
other agreement to which the Owner is a party or by which it or its properties are bound, or (b)
the laws of the State of Arizona or any court order by which the Owner or its properties are
bound.
7. To our actual knowledge, no consent, approval, authorization, or other action by, or
filing with, any federal, State or local governmental authority is required in connection with
the execution and delivery by the Owner of the Bond Documents, or the consummation of the
Transaction contemplated thereby and, to our actual knowledge, the Owner has obtained all
consents, approvals and authorizations, and has made all filings, required by applicable federal,
state and/or local governmental authorities in order to own and operate its properties and assets
as described in the Preliminary Official Statement and the Official Statement and to carry out
its business as such business is currently being conducted as described in the Preliminary
Official Statement and the Official Statement.
8. We have no actual knowledge that the Owner is in violation of any provision of, or in
default under, the Organizational Documents or any other agreement or instrument, the
violation of which or default under which would materially and adversely affect the execution,
delivery and/or performance of the agreements and obligations of the Owner under the Bond
Documents.
9. We have no actual knowledge of any legal or governmental actions, proceedings,
inquiries or investigations pending or overtly threatened by any governmental authorities or to
which the Owner is a party or of which any property of the Owner is subject, which would
materially and adversely affect (a) the execution, delivery and/or performance of the
agreements and obligations of the Owner under the Bond Documents, or (b) the financial
condition or operations of the Owner as described in the Preliminary Official Statement and
the Official Statement.
10. To our actual knowledge, the information contained in the Preliminary Official
Statement and the Official Statement pertaining to the Owner and the Project (as defined in the
Official Statement) under the headings “INTRODUCTION” ([[as to the Owner and Project]]),
“THE PUBLIC INFRASTRUCTURE”, “THE OTHER INFRASTRUCTURE”, “LAND
DEVELOPMENT” (except the information under the subheading “The District”, as to which
no opinion is expressed) and “RISK FACTORS”, and in Appendix C – “EXECUTIVE
SUMMARY OF APPRAISAL”, taken as a whole and to the extent applicable to Owner, does
not contain any untrue statement of material fact or omit to state any material fact necessary in
order to make the statements made therein, in light of the circumstances under which such
statements were made, not misleading. In connection with our review of the Preliminary
Official Statement and the Official Statement, we have not undertaken to independently
determine the accuracy, completeness or fairness of the statements contained therein, except
as and to the extent provided in this paragraph, and the knowledge available to us is such that
we are unable to assume, and do not assume, any responsibility for the accuracy, completeness
D-7
or fairness of such information. However, on the basis of such review, we have acquired no
actual knowledge that the information contained in the Preliminary Official Statement and the
Official Statement (except for the financial information and notes thereto and the schedules
and other financial or statistical data and opinions of value included therein or in any appendix
thereto, as to which we express no opinion) contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading.
We are furnishing this letter of opinion to you solely for your benefit and may be relied on
by you only for the purpose contemplated in the Transaction. Our opinion is not to be reproduced
or filed publicly, or used or relied on by, or quoted or delivered to any other person or entity, or
used or relied upon for any purpose other than the purpose contemplated in the Transaction
without, in each instance, our prior written consent.
Very truly yours,
BERENS BLONSTEIN PLC
E-1
EXHIBIT E
FORM OF CONSENT OF SCHNEPF ELLSWORTH APPRAISAL GROUP LLC
Schnepf Ellsworth Appraisal Group LLC hereby consents to the inclusion in the
Preliminary Official Statement and the Official Statement related to the sale of Westpark
Community Facilities District (City of Buckeye, Arizona) Special Assessment District No. 2
Special Assessment Revenue Bonds, Series 2025 of the executive summary relating to the
Appraisal prepared by Schnepf Ellsworth Appraisal Group LLC and addressed to City of Buckeye,
Arizona/Westpark Community Facilities District (City of Buckeye, Arizona), dated April 17, 2025
(the “Appraisal”), and further represents and warrants that, as of the date of the Preliminary
Official Statement and as of ________, 2025, and, as of the date of the Official Statement and as
of the date hereof, the executive summary of the Appraisal is true and correct in all respects and
does not include any untrue statement of a material fact or omit to state any material fact necessary
to make such statements, in light of the circumstances under which such statements were made,
not misleading, and, to the best of our knowledge, as of the date of the Preliminary Official
Statement and as of __________, 2025, and as of the date of the Official Statement and as of the
date hereof, no event affecting the Appraisal has occurred which it is necessary to disclose therein
in order to make the statements and information therein not misleading.
SCHNEPF ELLSWORTH APPRAISAL
GROUP LLC
By...........................................................................
Dated: [Closing Date]
Attachment-1
ATTACHMENT
INDEMNITY LETTER
FOR
NOT TO EXCEED $1,561,000
WESTPARK COMMUNITY FACILITIES DISTRICT
(CITY OF BUCKEYE, ARIZONA)
SPECIAL ASSESSMENT DISTRICT NO. 2
SPECIAL ASSESSMENT REVENUE BONDS, SERIES 2025
___________, 2025
Raymond James & Associates, Inc.
8501 N. Scottsdale Road
Suite 250
Scottsdale, Arizona 85253
Westpark Community Facilities District
(City of Buckeye, Arizona)
c/o City of Buckeye, Arizona
530 E. Monroe Avenue
Buckeye, Arizona 85326
Attention: District Treasurer
Re:
Westpark Community Facilities District (City of Buckeye, Arizona) Special
Assessment District No. 2 Special Assessment Revenue Bonds, Series 2025
Ladies and Gentlemen:
This Indemnity Letter is delivered by KEMF WP 2.2, LLC, a limited liability
company organized and existing pursuant to the laws of the State of Arizona (the “Owner”), in
order to induce Raymond James & Associates, Inc. (the “Underwriter”) and Westpark Community
Facilities District (City of Buckeye, Arizona) (the “District”), to enter into the Purchase Contract,
dated even date herewith (the “Purchase Contract”), related to the sale by the District and purchase
by the Underwriter of the captioned Bonds (the “Bonds”). Capitalized terms used but not defined
herein have the meanings assigned to them in the Purchase Contract.
1.
In consideration of the execution and delivery of the Purchase Contract, the
Owner represents and warrants to the Underwriter and the District that:
(a)
The Owner is a limited liability company organized and existing under the
laws of the State of Arizona and qualified to do business in the State of Arizona.
Raymond James & Associates, Inc.
Westpark Community Facilities District (City of Buckeye, Arizona)
Page 2
Attachment-2
(b)
As of the date of the Preliminary Official Statement, the information in the
Preliminary Official Statement under the headings “INTRODUCTION” (but only as to those
portions that discuss the Owner, the Project, the Public Infrastructure, and the Assessed Lots, each
as defined therein, and as to those portions cross-referenced to “LAND DEVELOPMENT” and
“THE PUBLIC INFRASTRUCTURE”), “THE PUBLIC INFRASTRUCTURE”, “THE OTHER
INFRASTRUCTURE”, “LAND DEVELOPMENT” (except the information under the sub-
heading “The District”, as to which no view is expressed) and “RISK FACTORS”, and in
Appendix C – “EXECUTIVE SUMMARY OF APPRAISAL” taken as a whole, is true and
correct in all material respects for the purposes for which its use is or was authorized, and such
information does not include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements made therein in light of the circumstances under which they
are or were made, not misleading.
(c)
None of (i) the execution or delivery of this Indemnity Letter, the Waiver
Agreement or the CFD Development Agreement (collectively, the “Owner Documents”), (ii) the
consummation of any of the transactions therein contemplated, or (iii) the fulfillment of, or
compliance with, the terms thereof, contravenes the organizational documents of the Owner or
conflicts with or results in a breach by the Owner of any of the terms, conditions or provisions of,
or constitute a default by the Owner under, any bond, debenture, note, mortgage, indenture,
agreement or other instrument to which the Owner is a party or by which it is bound or to which
any of the property or assets of the Owner is subject, or any law or any order, rule or regulation
applicable to the Owner of any court, federal or state regulatory body, administrative agency or
other governmental body having jurisdiction over the Owner or any of its properties or operations,
or (except as contemplated by the Owner Documents) will result in the creation or imposition of
any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of
the property or assets of the Owner under the terms of any such restriction, bond, debenture, note,
mortgage, indenture, agreement, instrument, law, order, rule or regulation, in each case which
would materially affect the business, properties, assets, liabilities or conditions (financial or
otherwise) of the Owner taken as a whole.
(d)
There is no action, suit, proceeding or investigation at law or in equity
before or by any court or governmental agency or body pending and served or, to the best
knowledge of the Owner, threatened against the Owner wherein an adverse decision, ruling or
finding would (i) result in any material adverse change in the condition (financial or otherwise),
results of operations, business or prospects of the Owner, or that would materially and adversely
affect the properties of the Owner, taken as a whole, and that has not been disclosed in the
Preliminary Official Statement as of its date, (ii) materially adversely affect the transactions
contemplated by the Purchase Contract or the Owner Documents or (iii) adversely affect the
validity or enforceability of the Owner Documents against the Owner.
(e)
The Owner has the full power and authority to execute and deliver the
Owner Documents and perform its obligations thereunder and engage in the transactions
contemplated by the Purchase Contract and the Owner Documents, and the Owner Documents
have been duly authorized by the Owner and when executed by all the applicable parties thereto
will constitute valid, binding and enforceable obligations of the Owner except as enforcement
Raymond James & Associates, Inc.
Westpark Community Facilities District (City of Buckeye, Arizona)
Page 3
Attachment-3
thereof may be limited by bankruptcy, insolvency or other laws affecting enforcement of
creditors’ rights and general principles of equity and except as the indemnification provisions
hereof may be limited by applicable securities laws or public policy.
(f)
No consent, approval, authorization or other action by any governmental or
regulatory authority that has not been obtained is or will be required for the consummation by the
Owner of the transactions contemplated by the Purchase Contract and the Owner Documents;
provided that no representation is made as to the compliance of the offer and sale of the Bonds
with any federal, extraterritorial, or state securities law or regulation or any consents, approvals,
authorizations or other action required by the City of Buckeye, Arizona, the State of Arizona, or
the District.
2.
To the extent permitted by law, the Owner shall indemnify and hold
harmless the Underwriter and each director, trustee, partner, member, officer, or employee thereof
and each person, if any, who controls the Underwriter within the meaning of the Securities Act of
1933, as amended (the Underwriter and any such person being herein called an “Underwriter
Indemnified Party”) and the District and each director, officer, official or employee thereof and
each person, if any, who controls the District within the meaning of the Securities Act of 1933, as
amended (the District and any such person being herein called a “District Indemnified Party” and,
together with each Underwriter Indemnified Party, the “Indemnified Parties”), for, from and
against any and all losses, claims, damages or liabilities (i) to which any such Indemnified Party
may become subject, under any statute or regulation at law or in equity or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact set forth in the information
identified in Section 1(b) above in the Official Statement or any amendment or supplement thereto,
taken as a whole, or arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated in such section(s) or that is necessary to make the statements
made therein, in light of the circumstances in which they were made, not misleading in any material
respect, except such indemnification shall not extend to any other statements in the Official
Statement and (ii) to the extent of the aggregate amount paid in any settlement of any litigation
commenced or threatened to the extent arising from a claim based upon any such untrue statement
or alleged untrue statement or omission or alleged omission if such settlement is effected with the
written consent of the Owner (which consent shall not be unreasonably withheld).
An Indemnified Party shall, promptly after the receipt of notice of a written threat
of the commencement of any action against such Indemnified Party in respect of which
indemnification may be sought against the Owner, notify the Owner in writing of the
commencement thereof and provide a copy of the written threat received by such Indemnified
Party. Failure of the Indemnified Party to give such notice will reduce the liability of the Owner
by the amount of damages attributable to the failure of the Indemnified Party to give such notice
to the Owner, but the omission to notify the Owner of any such action shall not relieve the Owner
from any liability that it may have to such Indemnified Party otherwise than under this Section. In
case any such action shall be brought against an Indemnified Party and such Indemnified Party
shall notify the Owner of the commencement thereof, the Owner may, or if so requested by such
Indemnified Party shall, participate therein or defend the Indemnified Party therein, with counsel
Raymond James & Associates, Inc.
Westpark Community Facilities District (City of Buckeye, Arizona)
Page 4
Attachment-4
reasonably satisfactory to such Indemnified Party and the Owner (it being understood that, except
as hereinafter provided, the Owner shall not be liable for the expenses of more than one counsel
representing the Indemnified Parties in such action), and after notice from the Owner to such
Indemnified Party of an election so to assume the defense thereof, the Owner will not be liable to
such Indemnified Party under this Section for any legal or other expenses subsequently incurred
by such Indemnified Party in connection with the defense thereof; provided, however, that unless
and until the Owner assumes the defense of any such action at the request of such Indemnified
Party, the Owner shall have the right to participate at its own expense in the defense of any such
action. If the Owner shall not have employed counsel to defend any such action within a
reasonable period of time after receipt of written notice of such action or if an Indemnified Party
shall have reasonably concluded (and shall have notified the Owner) that there may be defenses
available to it and/or other Indemnified Parties that are different from or additional to those
available to the Owner (in which case the Owner shall not have the right to direct the defense of
such action on behalf of such Indemnified Party, which right may be exercised by an Indemnified
Party) or to other Indemnified Parties, the reasonable legal and other necessary expenses, including
the expense of separate counsel, incurred by such Indemnified Party shall be borne by the Owner.
3.
All of the representations, warranties, and agreements of the Owner
contained in the Owner Documents shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of the Underwriter, any controlling person referred
to in Section 2 hereof or the Owner or (ii) delivery of and payment for the Bonds.
4.
This Indemnity Letter is solely for the benefit of the Underwriter and the
District and their successors or assigns, and, to the extent provided in Section 2 hereof, each
Indemnified Party, and no other person shall acquire or have any right under or by virtue hereof.
The terms “successors” and “assigns” as used in this Indemnity Letter shall not include any
purchaser, as such purchaser, from the Underwriter of the Bonds.
5.
This Indemnity Letter shall be governed by the laws of the State of Arizona.
6.
The Owner hereby consents to the references made to the Owner in the
Official Statement.
7.
The electronic signature of this Indemnity Letter shall be as valid as an
original signature and shall be effective to bind this Indemnity Letter. For purposes hereof:
(i) electronic signature” means a manually signed original signature or a replicated signature
furnished by signature procurement software (i.e., “DocuSign”) that is then transmitted by
electronic means; and (ii) “transmitted by electronic means” means sent in the form of a facsimile
or sent via the internet as a portable document format (“pdf”) or other replicating image attached
to an electronic mail or internet message.
[Signature Page for Indemnity Letter Follows]
[Signature page for Indemnity Letter]
Attachment-5
Respectfully submitted,
KEMF WP 2.2, LLC, an Arizona limited liability
company
By:
Name: ____________
Title: _____________