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EXHIBIT 10.17
PROPERTY BOND PURCHASER, INC.
CITY OF RIO RANCHO, NEW MEXICO
AND
FULCRUM PROPERTIES, L.P.
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BOND PURCHASE AGREEMENT
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DATED: DECEMBER 23, 1996
$2,100,000
CITY OF RIO RANCHO, NEW MEXICO
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BOND
(FULCRUM PROPERTIES, L.P. PROJECT)
SERIES 1996
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BOND PURCHASE AGREEMENT
PROPERTY BOND PURCHASER, INC. (together with its successors, assigns and
transferees, the "Purchaser"), CITY OF RIO RANCHO, NEW MEXICO the "Issuer") and
FULCRUM PROPERTIES, L.P. (the "Company") agree:
Section 1. Recitals. The City, the Purchaser and Sunwest Bank of
Albuquerque, N.A., as Depositary (the "Depositary"), have entered into an
Indenture dated as of December 1, 1996 (the "Indenture"). Pursuant to the
Indenture, the Issuer will issue its Taxable Industrial Development Revenue Bond
(Fulcrum Properties, L.P. Project) Series 1996 in the maximum principal amount
of $2,100,000 (the "Bond"). Proceeds of the Bond will be used to acquire,
construct, equip and improve a project consisting of land, buildings,
improvements and equipment to be used as an administrative office and warehouse
facility (the "Project").
Section 2. Purchase and Delivery. On the basis of the representations and
covenants contained in this Bond Purchase Agreement (this "Agreement") and
subject to the terms and conditions contained in this Agreement, the Purchaser
agrees to purchase the Bond from the Issuer and the Issuer agrees to sell the
Bond to the Purchaser. As consideration for the sale of the Bond, the Purchaser
agrees to make advances on the Bond at the times and under the conditions
specified in Section 404 of the Indenture. The Issuer will deliver the Bond to
the Purchaser, at or prior to 10:00 a.m., Mountain Time, on December 23, 1996,
or at such other time not later than five business days thereafter as the
Purchaser may determine and advise the Issuer (the "Closing Date").
Section 3. Issuer Representations. The Issuer represents that, as of the
date of this Agreement:
(a) Each of the representations of the Issuer in the Lease and
Purchase Agreement dated as of December 1, 1996 (the "Lease" and, together with
the Indenture and this Bond Purchase Agreement, the "Bond Documents") and the
Indenture is true and correct as if made on and as of the date of this
Agreement.
(b) Pursuant to an ordinance duly adopted by the City Council of the
Issuer on November 13, 1996 (the "Bond Ordinance"), the Issuer duly authorized
and approved (i) the execution and delivery by the Issuer of the Bond Documents
and the performance by the Issuer of its obligations under the Bond Documents,
and (ii) the issuance, execution and delivery of the Bond. The Bond Ordinance
has not been amended, modified or repealed.
(c) The Bond Documents and the Bond Ordinance constitute, and the
Bond, when executed by the Issuer and delivered to the Purchaser will
constitute, legal, valid and binding obligations off the Issuer, enforceable
against the Issuer in accordance with their respective terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally and general
principles of equity.
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(d) The statements contained in any certificate provided under this
Agreement and signed and delivered to the Purchaser by any authorized official
of the Issuer will be deemed a representation and warranty by the Issuer to the
Purchaser.
Section 4. Company Representations. The Company represents that, as of the
date of this Agreement:
(a) The Company is a limited partnership duly organized and validly
existing and in good standing under the laws of the State of Delaware and has or
will obtain at the necessary time, all necessary licenses and permits to lease
and operate the Project and other property financed with the proceeds of the
Bond. The Company has not received any notice of an alleged violation and is not
in violation of any zoning, land use, environmental or other similar law or
regulation applicable to the property subject to the Lease. The Company has full
right, power and authority to approve the Bond Documents and to perform the
other acts and things as provided for in this Agreement. The Company has full
right, power and authority to approve, enter into, deliver and/or perform its
obligations under the Bond Documents.
(b) The approval by the Company of the Bond Documents and the
execution, delivery and performance of its obligations under the Bond Documents,
compliance by the Company with the provisions hereof and of any and all of the
foregoing documents, the application by the Company of the proceeds of the sale
of the Bond for the purposes described in the Indenture, and the consummation of
the transactions contemplated herein do not and will not conflict with or result
in the breach of any of the terms, conditions or provisions of, or constitute a
default under, the limited partnership agreement, as amended, of the Company or
any agreement, indenture, mortgage, lease or instrument to which the Company is
a party or by which the Company or any of its property is or may be bound or any
existing law or court or administrative regulation, decree or order which is
applicable to the Company or any of its property, and do not and will not result
in the creation or imposition of any lien of any nature upon any of the property
of the Company, except for Permitted Liens (as defined in the Lease).
(c) No "Default," "Event of Default" or event which, with notice or
lapse of time or both, would constitute a "Default" or an "Event of Default"
under the Bond Documents has occurred and is continuing.
(d) The Company has duly authorized all necessary action to be taken
by it for (i) the issuance and delivery of the Bond by the Issuer upon the terms
and conditions and for the uses set forth or described herein and in the
Indenture; (ii) the approval of the Bond and the Indenture; and (iii) the
execution, delivery or receipt of and the performance as applicable, of its
obligations under the Bond Documents and any and all such other agreements and
documents as may be required to be executed, delivered or received by the
Company in order to carry out, effectuate and consummate the transactions
contemplated herein and therein.
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(e) The Company will not take or omit to take any action which will in
any way cause or result in the proceeds of the sale of the Bond being applied in
a manner other than as provided in the Indenture and the Lease.
(f) To the best knowledge of the Company, there is no action, suit,
proceeding, inquiry or investigation at law or in equity before or by any public
board or body pending or, to the knowledge of the Company, threatened against or
affecting the Company or its property wherein an unfavorable decision, ruling or
finding would have a material adverse effect on (i) the transactions
contemplated in this Agreement or (ii) the validity or enforceability in
accordance with their respective terms of the Bond Documents.
(g) On or before the date of the sale of the Bond, the Company will
approve or execute and deliver, as applicable, the Bond Documents. This
Agreement is, and when executed and delivered, as applicable, the Bond Documents
will be the legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their respective terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally and general
principles of equity.
(h) To the best knowledge of the Company, all approvals, consents,
authorizations, certifications, and other orders of any government authority,
board, agency or commission having jurisdiction, and all filings with such
entities, failure to obtain or make which would materially adversely affect the
performance by the Company of its obligations hereunder or under the Bond
Documents, have been duly obtained. All permits and approvals required to date
for the construction and operation of the Project have been obtained or will be
obtained in due course.
(i) Any certificate signed by an authorized officer of the Company
delivered to the Issuer or to the Purchaser in connection with the issuance of
the Bond will be deemed a representation and warranty by the Company to the
Issuer and the Purchaser as to the statements made therein.
Section 5. Purchaser Representations. The Purchaser represents and
acknowledges that, as of the date of this Agreement:
(a) The Purchaser is purchasing the Bond for its own account for
investment and with no present intention of distributing or reselling the Bond
or any interest in the Bond but without prejudice, however, to its right at all
times to sell or otherwise dispose of all or any part of the Bond in compliance
with the Securities Act of 1933, as amended, the regulations promulgated
thereunder and applicable state securities laws and regulations.
(b) The Purchaser understands that the Bond is a special, limited, and
not general, obligation of the Issuer, is payable solely from the revenues
received by the Purchaser on behalf of the Issuer under the Lease and from the
security therefor as described in the Indenture but from no other sources. It
understands that the Bond is not secured by any obligation or pledge of any
monies
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received or to be received from taxation or from the State of New Mexico (the
"State") or any political subdivision or taxing district thereof (including,
without implied limitation, the Issuer), and that the Bond will never represent
or constitute a general obligation, debt or bonded indebtedness of the Issuer,
the State, or any political subdivision thereof, and that no right will exist to
have taxes levied by the Issuer, the State, or any political subdivision
thereof, for the payment of principal of, premium, if any, and interest on the
Bond. The Purchaser understands that the payment of the Bond depends upon the
general credit of the Company, and upon the security granted in the Indenture
for the Company's obligations under the Lease.
(c) The Purchaser has received copies of financial statements of the
Company, has been afforded the opportunity to discuss the business, assets and
financial position of the Company with the officers, employees and auditors of
the Company, and has received such information concerning the Company and its
business, assets and financial position, and the Project (as defined in the
Indenture) as it deems necessary in making its decision to purchase the Bond.
(d) The Purchaser is duly and legally authorized to purchase the Bond,
has knowledge and experience in financial and business matters, is capable of
evaluating the merits and risks of its purchase of the Bond, is aware of the
intended use of proceeds of the Bond, and understands that interest on the Bond
is not excludable from gross income for federal income tax purposes.
(e) The Purchaser understands that the Issuer has not undertaken to
furnish any information with respect to the Company or to ascertain the accuracy
of any information furnished to the Purchaser with respect to the Company and
the Purchaser has not requested or received any representations from the Issuer
with respect to any such information, its accuracy or completeness. The
Purchaser, for itself and for any subsequent holder of the Bond, waives any
requirement of due diligence in investigation or inquiry on the part of the
Issuer, its officials, counsel, agents and consultants and all claims, actions
or causes of action which the Purchaser may have from and after the date hereof
against the Issuer, its officials, counsel, agents and consultants growing out
of any such action which any of the foregoing took, or could have taken, in
connection with the authorization, execution, delivery, sale or resale of the
Bond to or by the Purchaser or in connection with any statement or
representation which induced the Purchaser to purchase the Bond.
(f) The Purchaser has received and reviewed copies in draft and final
form of the Bond Documents and the Bond Ordinance.
(g) This Agreement constitutes the legal, valid and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and general principles of equity.
(h) The Purchaser has been informed by the Company and agrees that the
Indenture has not been qualified under the Trust Indenture Act of 1939, and that
the Bond (i) is not
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being registered or otherwise qualified for sale under (1) the Securities Act of
1933, as amended, or (2) the "Blue Sky" laws and regulations of any state, (ii)
will not be listed on any stock or other securities exchange, (iii) will not
carry a rating from any rating service and (iv) will not be readily marketable.
The Purchaser has been informed by the Company and agrees that a legend will be
placed on the Bond certificate or any other documents evidencing ownership of
the Bond to the effect that it has not been registered under the Securities Act
of 1933, as amended, or the applicable state "Blue Sky" laws and that it may
only be transferred in compliance with the Indenture.
(i) The Purchaser acknowledges that its purchase of the Bond
constitutes a transaction in a bond secured by the Indenture which is, among
other things, a personal property security agreement, pursuant to which the Bond
is offered and sold as a unit.
(j) The execution, delivery and performance of this Agreement by the
Purchaser will not constitute a default under any other agreement by which the
Purchaser is bound.
Section 6. Indemnification.
(a) The Company agrees to indemnify, defend and hold harmless all
officials, directors, councilors, officers and employees of the Issuer and each
person, if any, who has the power to direct or cause the direction of the
management and policies of the Issuer (the "Indemnified Parties") against any
and all losses, claims, damages, liabilities, joint or several, or any expenses
related thereto whatsoever arising out of or in connection with or caused by any
pledge, offering, sale or resale of the Bond or any underlying security in
violation of any federal or state securities laws or by an untrue statement or
misleading statement or alleged untrue statement or alleged misleading statement
of a material fact made to any person or caused by an omission or alleged
omission of any material fact in connection with the Bond or the pledge, sale,
resale or delivery thereof.
In case a claim shall be made or any action shall be brought against
one or more of the Indemnified Parties based upon the matters described in the
preceding paragraph and in respect of which indemnity is sought against the
Company pursuant to the preceding paragraph, the Indemnified Party or Parties
seeking indemnity shall promptly notify the Company, in writing, and the Company
shall promptly assume or cause the assumption of the defense thereof, including
the employment of counsel chosen by the Company and approved in writing by the
Issuer (provided that such approval by the Issuer shall not be unreasonably
withheld), the payment of all expenses and the right to participate in
negotiations and to consent to settlement. If any Indemnified Party is advised
in a written opinion of counsel that there may be legal defenses available to
such Indemnified Party which are adverse to or in conflict with those available
to the Company, or that the defenses of such Indemnified Party should be handled
by separate counsel, the Company shall not have the right to assume or cause the
assumption of the defense of such Indemnified Party, however, the Company shall
be responsible for the fees and expenses of counsel retained by such Indemnified
Party in assuming its own defense. If the Company shall have failed to assume or
cause the assumption of the defense of such action or to retain counsel
reasonably satisfactory to the Issuer
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or in the event it is determined the defense of such Indemnified Party should be
handled by separate counsel within a reasonable time after notice of the
commencement of such action, the fees and expenses of counsel retained by the
Indemnified Party shall be paid by the Company. Notwithstanding, and in addition
to, any of the foregoing, any one or more of the Indemnified Parties shall have
the right to employ separate counsel with respect to any such claim or in any
such action and to participate in the defense thereof, but the fees and expenses
of such counsel shall be paid by such Indemnified Party or Parties unless the
employment of such counsel has been specifically authorized in writing by the
Company. The Company shall not be liable for any settlement of any such action
effected without the written consent of the Company, but if settled with the
written consent of the Company or if there is a final judgment for the plaintiff
in any such action with or without consent, the Company agrees to indemnify and
hold harmless the Indemnified Parties from and against any loss or liability by
reason of such settlement or judgment. The covenants and agreements of the
Company herein contained shall survive the delivery of the Bond.
(b) In order to provide for just and equitable contribution in
circumstances in which the indemnity provided for in this Section is for any
reason held to be unavailable to the Indemnified Parties other than in
accordance with its terms, the Company shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement incurred by the Issuer in such proportions as determined by
a court having jurisdiction of the matter; provided, however, that no person
guilty of fraudulent misrepresentation shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section, each person, if any, who controls an Indemnified Party shall
have the same rights to contribution as such Indemnified Party.
Section 7. Conditions. The obligation of the Purchaser to purchase the Bond
and the obligation of the Issuer to sell the Bond are subject to satisfaction of
the following conditions precedent:
(a) The representations of the Issuer and the Company in this
Agreement will be true and correct on and as of the Closing Date as if made on
and as of the Closing Date.
(b) As of the Closing Date, no Default (as defined in the Indenture)
or Event of Default (as defined in the Lease) will have occurred and be
continuing, and no event will have occurred and be continuing which, with the
lapse of time or the giving of notice or both, would constitute a Default or
Event of Default.
(c) On or before the Closing Date, all actions required to be taken as
of the Closing Date in connection with the Bond, the Bond Ordinance and the Bond
Documents by the Issuer and the Company will have been taken, and the Issuer and
the Company will each have performed and complied with all agreements, covenants
and conditions required to be performed or complied with by the Bond Ordinance
and the Bond Documents.
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(d) The Indenture will have been duly executed and delivered by the
Issuer, the Purchaser and the Depositary. The Lease will have been duly executed
by the Issuer and the Company. Each of the Bond Documents, the Bond Ordinance
and all other official action of the Issuer relating to the Bond, the Project
and the Bond Documents will be in full force and effect on the Closing Date and
will not have been amended, modified or supplemented on or before the Closing
Date.
(e) The Issuer, the Company and the Purchaser will have received the
following, each dated the Closing Date:
(i) the approving opinion of Sutin, Thayer & ▇▇▇▇▇▇ A
Professional Corporation, Bond Counsel, substantially in the form of
Exhibit A;
(ii) the opinion of counsel to the Company (which opinion, as to
matters of New Mexico law may be given by Sutin, Thayer & ▇▇▇▇▇▇ A
Professional Corporation as New Mexico counsel to the Company),
substantially in the form of Exhibit B;
(iii) the opinion of counsel to the Issuer, substantially in the
form set forth in Exhibit C;
(iv) an opinion of counsel to the Purchaser, substantially in the
form set forth in Exhibit D;
(v) a certificate of and with reference to the Issuer signed by a
duly authorized officer of the Issuer to the effect set forth in
subsections (a), (b) and (c) of this Section 7;
(vi) a certificate of and with reference to the Company signed by
a duly authorized officer of the Company to the effect set forth in
subsections (a), (b) and (c) of this Section 7; and
(vii) a certificate of the Depositary signed by a duly authorized
officer of the Depositary, to the effect that (A) he or she is an
authorized officer of the Depositary; (B) the Indenture has been duly
executed and delivered by the Depositary; (C) the Depositary has all
necessary corporate powers required to execute and deliver, and to perform
its obligations under, the Indenture; and (D) to the best of his or her
knowledge, the execution and delivery by the Depositary of the Indenture
and the performance by the Depositary of its obligations under the
Indenture will not conflict with or constitute a breach of or default under
any law, administrative regulation, consent decree or any agreement or
other instrument to which the Depositary is subject or by which the
Depositary is bound.
If any conditions to the obligations of the Purchaser or the Issuer under this
Agreement are not satisfied and if the satisfaction of such conditions is not
waived by the Purchaser and the Issuer,
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then, at the option of the Purchaser and the Issuer, (x) the Closing Date will
be postponed for such period, not to exceed seven days, as may be necessary for
such conditions to be satisfied or (y) the obligations of the Purchaser and the
Issuer under this Agreement will terminate, and neither the Purchaser nor the
Issuer will have any further obligations or liabilities under this Agreement,
however, the Company will continue to be obligated to reimburse the Issuer for
the expenses of the Issuer.
Section 8. Survival. All agreements, covenants and representations and all
other statements of the Issuer, the Company and the Purchaser and their
respective officers set forth in or made pursuant to this Agreement will survive
the Closing Date and the delivery of and payment for the Bond.
Section 9. Incorporation of Indenture Provisions. Each of the provisions of
Sections 203 and 701 and Article XI of the Indenture and Section 10.3 of the
Lease is incorporated in this Agreement.
Section 10. Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New Mexico applicable to agreements
made and to be performed in the State of New Mexico, without regard or effect
given to conflict of laws or rules which would require the application of any
other jurisdiction.
Section 11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed and delivered will constitute an
original and all together will constitute but one and the same instrument.
Section 12. Severability. If any section, paragraph, clause or provision of
this Agreement shall for any reason be held to be invalid or unenforceable, the
invalidity or unenforceability of such section, paragraph, clause or provision
shall not affect any of the remaining provisions of this Agreement.
DATED: December 23, 1996.
CITY OF RIO RANCHO, NEW MEXICO
By ___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Mayor
PROPERTY BOND PURCHASER, INC.
By ___________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
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FULCRUM PROPERTIES, L.P.
By FULCRUM CAPITAL L.P., its general partner
By _______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Principal
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[Letterhead of Bond Counsel]
December 23, 1996
City of Rio Rancho, New Mexico
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Fulcrum Properties, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Property Bond Purchaser, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
$2,100,000
City of Rio Rancho, New Mexico
Taxable Industrial Development Revenue Bond
(Fulcrum Properties, L.P. Project)
Series 1996
Ladies and Gentlemen:
We have acted as Bond Counsel in connection with the issuance and sale by the
City of Rio Rancho, New Mexico (the "Issuer") of its Taxable Industrial
Development Revenue Bond (Fulcrum Properties, L.P. Project) Series 1996 in the
maximum principal amount of $2,100,000 (the "Bond").
The Bond will bear interest on its unpaid principal amount at 8% per annum and
mature on December 1, 2020. Interest on the Bond is payable each June 1 and
December 1, beginning June 1, 1997.
The Bond is subject to redemption prior to maturity as described in the
Indenture dated as of December 1, 1996 (the "Indenture") among the Issuer,
Property Bond Purchaser, Inc. (the "Purchaser") and Sunwest Bank of Albuquerque,
N.A., as Depositary (the "Depositary").
The principal of, interest on and redemption price of the Bond are not general
obligations of the Issuer but special obligations payable solely from the
revenues pledged under the Indenture.
EXHIBIT A
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City of Rio Rancho, et al.
December 23, 1996
Page 2
Neither the faith and credit nor the taxing power of the State of New Mexico or
of any of its political subdivisions, including the Issuer, is pledged to the
payment of the principal of, interest on or redemption price of the Bond. The
principal of, interest on and redemption price of the Bond will never constitute
a debt or indebtedness of the Issuer within the meaning of any provision or
limitation of the constitution or laws of the State of New Mexico or the home
rule charter of the Issuer. The Bond will never constitute nor give rise to a
pecuniary liability of the State of New Mexico, any of its political
subdivisions or of the Issuer or a charge against their general credit or taxing
powers.
In connection with the issuance of the Bond we have examined (a) a certified
copy of an Ordinance passed by the City Council of the Issuer on November 13,
1996, authorizing the issuance of the Bond, pursuant to and under the provisions
of Sections 3-32-1 through 3-32-16, New Mexico Statutes Annotated, 1978
Compilation, as amended (the "Act"); (b) the executed Bond; (c) executed
counterparts of the Indenture, the Lease and Purchase Agreement dated as of
December 1, 1996 (the "Agreement") between the Issuer and Fulcrum Properties,
L.P. (the "Company") and the Bond Purchase Agreement dated December 23, 1996
(the "Bond Purchase Agreement" and, together with the Indenture and the
Agreement, the "Bond Documents") among the Purchaser, the Issuer and the
Company; and (d) such other opinions, documents, certificates and letters as we
deem relevant in rendering this opinion.
Based on such examination, in our opinion:
1. The Issuer is a municipal corporation and political subdivision of the
State of New Mexico and has the power and authority, under the constitution
and laws of the State of New Mexico, including the Act, and its home rule
charter to execute and deliver the Bond Documents, and to authorize,
execute, issue and deliver the Bond.
2. The terms and provisions of the Bond and the Bond Documents comply in all
respects with the requirements of the Act.
3. The Bond has been validly authorized, executed and issued in accordance
with the law of New Mexico and represents the valid and binding special
obligation of the Issuer.
4. The Bond Documents have been duly authorized, executed and delivered by the
Issuer and, assuming due authorization, execution and delivery by the other
parties to the Bond Documents constitute legal, valid and binding
obligations of the Issuer enforceable against the Issuer in accordance with
their respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and general principles of equity.
EXHIBIT A
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City of Rio Rancho, et al.
December 23, 1996
Page 3
Very truly yours,
EXHIBIT A
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[Letterhead of Sutin, Thayer & ▇▇▇▇▇▇]
December 23, 1996
City of Rio Rancho, New Mexico
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Fulcrum Properties, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Property Bond Purchaser, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
$2,100,000
City of Rio Rancho, New Mexico
Taxable Industrial Development Revenue Bond
(Fulcrum Properties, L.P. Project)
Series 1996
Ladies and Gentlemen:
We have acted as New Mexico counsel to Fulcrum Properties, L.P. (the "Company")
and Property Bond Purchaser, Inc. (the "Purchaser"). We have been asked to
render this opinion in connection with the issuance by the City of Rio Rancho,
New Mexico, of its Taxable Industrial Revenue Bond (Fulcrum Properties, L.P.
Project) Series 1996 in the amount of $2,100,000.
In that regard we have reviewed executed copies of:
1. the Lease and Purchase Agreement dated as of December 1, 1996 (the
"Agreement") between the City of Rio Rancho, New Mexico (the "Issuer") and
the Company;
2. the Bond Purchase Agreement dated December 23, 1996 among the Purchaser,
the Issuer and the Company (the "Bond Purchase Agreement") pursuant to
which the Purchaser has agreed to purchase the Bond to be issued under the
Indenture dated as of December 1, 1996 among the Issuer, the Purchaser and
Sunwest Bank of Albuquerque, N.A., as Depositary (the "Indenture"). The
Agreement, the Bond Purchase Agreement and the Indenture are collectively
referred to herein as the "Documents";
EXHIBIT B
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City of Rio Rancho, et al.
December 23, 1996
Page 2
3. certificates of officers and/or general partners of the Company and the
Purchaser, certificates of public officials and such other documents as we
have deemed necessary.
We have also made such other investigations of law and fact as we have deemed
necessary.
For purposes of this opinion we have assumed:
1. the authenticity and genuineness of all signatures other than the Company
and the Purchaser on original and certified Documents; the authenticity and
genuineness of all signatures other than the Company and the Purchaser on
all copies, conformed copies and facsimiles of Documents; and the
conformity of copies, conformed copies and facsimiles to original and
certified Documents; and
2. the due authorization, execution and delivery of the Documents by all
parties other than the Issuer, the Company and the Purchaser.
Despite any other express or implied statement in this letter, each of the
opinions expressed in this letter is subject to the following further
qualifications, whether or not such opinions refer to such qualifications:
1. Where the phrase "to our knowledge" appears, we have examined the files of
the Company and the Purchaser in our office but have not inquired of the
Company or the Purchaser or made any independent investigation.
2. We express no opinion and we do not purport to opine as to the accuracy of
the representations and warranties made by the Company or the Purchaser or
any of their general partners or officers in any of the Documents.
3. Enforceability of the Documents may be limited by bankruptcy, insolvency,
reorganization, or similar federal or state laws of general application
relating to the rights of creditors, including without limitation such
similar laws granting rights and powers which have substantially the same
effect as rights which the Company or any actual creditor of the Company
was entitled to assert absent such laws; by general principles of equity,
including the defenses of unconscionability, ambiguity, and economic
duress, whether asserted in equitable or in legal proceedings; by rules of
commercial reasonableness; by the provisions of law concerning transfers in
contemplation of insolvency to preferred creditors; by provisions of law
governing appointment of receivers, injunctive relief and other equitable
remedies; and by certain other limitations which may be imposed upon the
availability of certain equitable remedies or the exercise of certain
equitable rights, including without
EXHIBIT B
16
City of Rio Rancho, et al.
December 23, 1996
Page 3
limitation, specific performance or enforcement, waivers or eliminations of
rights such as statutory rights of redemption, of jury trial and service of
process, separation or aggregation of property at foreclosure or enforced
sale.
4. As to the due authorization by the Company and its partners of the
execution, delivery and performance by the Company of its obligations under
the Agreement and the Bond Purchase Agreement, we have relied exclusively
on the opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., general counsel to the Company
addressed to you and attached hereto.
This opinion is limited to matters which may be governed by federal law and the
laws of New Mexico. We express no opinion with respect to any matter which may
be governed by the laws of any other state or jurisdiction. To the extent the
laws of any other state or jurisdiction are relevant to our opinion, we assume
that such laws are identical to the laws of New Mexico in all respects.
Based upon and subject to the foregoing, in our opinion:
1. Based solely on certificates of the Delaware Secretary of State, the
Company is a limited partnership duly organized and validly existing under
the laws of Delaware and is in good standing under the laws of Delaware.
2. The Company has duly authorized the execution, delivery and performance of
the Agreement and the Bond Purchase Agreement.
3. The Company is authorized to do business as a foreign limited partnership
in the State of New Mexico, and is in good standing under the laws of New
Mexico.
4. The execution, delivery and performance by the Company of the Agreement and
the Bond Purchase Agreement will not conflict with, contravene or violate
any applicable law, rule, regulation or ordinance.
5. All necessary authorizations, approvals, consents and other orders of any
governmental authority or agency for the execution and delivery by the
Company of the Agreement and the Bond Purchase Agreement have been obtained
and are in full force and effect.
6. To our knowledge there is no action, suit, proceeding, inquiry or
investigation by or before any court, public board or body pending or
threatened against the Company or the Purchaser which (I) seeks to or does
restrain or enjoin the issuance or delivery of the Bond or the execution
and delivery of the Agreement, the Bond Purchase Agreement or (ii) in any
EXHIBIT B
17
City of Rio Rancho, et al.
December 23, 1996
Page 4
manner questions the validity or enforceability of the Bond, the Agreement,
the Bond Purchase Agreement or the Indenture.
7. The Agreement and the Bond Purchase Agreement constitute legal, valid and
binding obligations of the Company, enforceable against it in accordance
with their respective terms.
8. Neither the Bond nor the Agreement is required to be registered under any
New Mexico or federal securities law. The Indenture is not required to be
qualified under the Trust Indenture Act of 1939.
Very truly yours,
SUTIN, THAYER & ▇▇▇▇▇▇ A Professional
Corporation
EXHIBIT B
18
[Letterhead of Counsel to Issuer]
December 23, 1996
Fulcrum Properties, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Property Bond Purchaser, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Sutin, Thayer & ▇▇▇▇▇▇ A Professional
Corporation
P. ▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I am City Attorney to the City of Rio Rancho, New Mexico (the "Issuer"). This
opinion is being rendered to you in connection with the issuance by the Issuer
of its Taxable Industrial Development Revenue Bond (Fulcrum Properties, L.P.
Project) Series 1996 in the maximum principal amount of $2,100,000 (the "Bond").
In my opinion:
1. The City is a duly organized and validly existing municipal corporation and
political subdivision of the State of New Mexico (the "State") under the
Constitution and laws of the State.
2. Ordinance ▇▇. ▇-▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇-▇▇▇ (the "Ordinance") was duly adopted
by the City Council of the Issuer on November 13, 1996, in accordance with
all applicable laws and has not been repealed or rescinded.
3. To my knowledge, no litigation is now pending or threatened against the
Issuer which seeks to or does restrain or enjoin the issuance or delivery
of the Bond, or in any manner questions the authority or proceedings for
the issuance of the Bond.
Very truly yours,
EXHIBIT C
19
[Letterhead of Counsel to the Purchaser]
December 23, 1996
City of Rio Rancho, New Mexico
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel to Property Bond Purchaser, Inc. (the "Purchaser") in
connection with the Indenture dated as of December 1, 1996 (the "Indenture")
among the City of Rio Rancho, New Mexico (the "Issuer"), the Purchaser and
Sunwest Bank of Albuquerque, N.A., as Depositary, and the Bond Purchase
Agreement dated December 23, 1996 (the "Bond Purchase Agreement") among the
Purchaser, the Issuer and Fulcrum Properties, L.P. (the "Company"), pursuant to
which the Purchaser has agreed to purchase the Issuer's Taxable Industrial
Development Revenue Bond (Fulcrum Properties, L.P. Project) Series 1996 in the
maximum principal amount of $2,100,000 to be issued under the Indenture. Terms
are used in this letter as defined in the Indenture and the Agreement (as
defined in the Indenture). In that connection we have reviewed executed copies
of the Bond Documents, certificates of officers of the Purchaser and
certificates of public officials and have made such other investigations of law
and fact as we have deemed necessary.
For purposes of this opinion we have assumed:
1. the authenticity and genuineness of all signatures other than the Company
and the Purchaser on original and certified Documents; the authenticity and
genuineness of all signatures other than the Company and the Purchaser on
all copies, conformed copies and facsimiles of Documents; and the
conformity of copies, conformed copies and facsimiles to original and
certified Documents; and
2. the due authorization, execution and delivery of the Documents by all
parties other than the Issuer, the Company and the Purchaser.
Despite any other express or implied statement in this letter, each of the
opinions expressed in this letter is subject to the following further
qualifications, whether or not such opinions refer to such qualifications:
1. Where the phrase "to our knowledge" appears, we have examined the files of
the Company and the Purchaser in our office but have not inquired of the
Company or the Purchaser or made any independent investigation.
EXHIBIT D
20
City of Rio Rancho, et al.
December 23, 1996
Page 2
2. We express no opinion and we do not purport to opine as to the accuracy of
the representations and warranties made by the Company or the Purchaser or
any of their general partners or officers in any of the Documents.
3. Enforceability of the Documents may be limited by bankruptcy, insolvency,
reorganization, or similar federal or state laws of general application
relating to the rights of creditors, including without limitation such
similar laws granting rights and powers which have substantially the same
effect as rights which the Company or any actual creditor of the Company
was entitled to assert absent such laws; by general principles of equity,
including the defenses of unconscionability, ambiguity, and economic
duress, whether asserted in equitable or in legal proceedings; by rules of
commercial reasonableness; by the provisions of law concerning transfers in
contemplation of insolvency to preferred creditors; by provisions of law
governing appointment of receivers, injunctive relief and other equitable
remedies; and by certain other limitations which may be imposed upon the
availability of certain equitable remedies or the exercise of certain
equitable rights, including without limitation, specific performance or
enforcement, waivers or eliminations of rights such as statutory rights of
redemption, of jury trial and service of process, separation or aggregation
of property at foreclosure or enforced sale.
This opinion is limited to matters which may be governed by federal law and the
laws of New Mexico. We express no opinion with respect to any matter which may
be governed by the laws of any other state or jurisdiction.
Based upon the foregoing, in our opinion:
1. The Purchaser is a corporation duly organized and validly existing under
the laws of New Mexico, and is in good standing under the laws of New
Mexico.
2. The Indenture and the Bond Purchase Agreement constitute legal, valid and
binding obligations of the Purchaser, enforceable against the Purchaser in
accordance with their respective terms.
3. The execution, delivery and performance by the Purchaser of the Indenture
and the Bond Purchase Agreement will not conflict with, contravene, violate
or constitute a breach of or default under the certificate of incorporation
or the bylaws of the Purchaser or any law, rule, regulation, ordinance,
order, consent, decree, agreement or instrument to which the Purchaser is a
party or by which it or its properties is bound.
EXHIBIT D
21
City of Rio Rancho, et al.
December 23, 1996
Page 3
4. All necessary authorizations, approvals, consents and other orders of any
governmental authority or agency for the execution and delivery by the
Purchaser of the Indenture and the Bond Purchase Agreement have been
obtained and are in full force and effect.
5. To the best of our knowledge, there is no action, suit, proceeding, inquiry
or investigation by or before any court, public board or body pending or
threatened against the Purchaser, which (i) seeks to or does restrain or
enjoin the issuance or delivery of the Bond or the execution and delivery
of any of the Bond Documents, or (ii) in any manner questions the validity
or enforceability of the Bond or any of the Bond Documents.
Very truly yours,
EXHIBIT D