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HomeMy WebLinkAboutBroadband Underwritting Firm TRUCKEE A DONNER Public i Staff Report To: Board of Directors From: Alan Harry, Director of Telecommunications Services Date: March 5, 2003 Subject: Broadband Business Planning—Selection of Underwriting Firm Summary The District has been actively moving forward to provide competitive data, video and voice services to the homes and businesses within its service territory. As part of the process to secure the funds necessary to construct the District's Fiber to the User Broadband System, District and Aggregate Networks staff has interviewed two underwriting firms, and have prepared a recommendation for Board approval. History At your regular meeting of February 5th, Rick Kaufman of Aggregate Networks reported that two underwriting firms had been in contact with him regarding their interest in working with the District to secure the funding required to construct the Fiber to the User Broadband system. In addition, you were advised that District and Aggregate Networks staff would be interviewing these firms in hopes of returning to the Board in March to request the authorization to hire the firm selected by the interview committee. New Information During the week of February 24th Peter Holzmeister, Mary Chapman, Alan Harry and Rick Kaufman interviewed the two underwriting firms, Municipal Capital Markets Group and Friedman, Luzzatto & Co. Through this process the interview team found that both firms held the experience necessary to secure the financing required to construct the District's FTTU project, that both viewed Certificates of Participation (COP) as the means to raise funds, and that Friedman, Luzzatto & Co. were willing to assume the underwriting liability, whereas MCM was not. 0 Page 1 In addition the interview committee found that Friedman, Luzzatto & Co.'s presentation was sound, informative, and displayed the level of involvement & interest that the District's project deserves. Thus the committee's recommendation was to engage Friedman, Luzzatto & Co. as the District's exclusive underwriter for the FTTU project. Attached for your review is the Agreement For Exclusive Underwriting Services, reviewed and approved by District General Counsel, between the District and Friedman, Luzzatto & Co. Recommendation In accordance with the recommendation of the interview committee, it is recommended that the Board authorize the District Manager to enter into an Engagement Agreement with Friedman, Luzzatto & Co. for Underwriting Services as detailed in the attached "Agreement for Exclusive Underwriting Services". 0 Page 2 AGREEMENT FOR EXCLUSIVE UNDERWRITING SERVICES This Agreement for Exclusive Underwriting Services is effective this _th day of March, 2003 between Friedman, Luzzatto & Company ("Friedman Luzzatto"), located at 14755 Preston Road, Suite 424, Dallas, Texas 75254 and Truckee Donner Public Utility District ("TDPUD"), located in Truckee, California (individually a"Party"and collectively the"Parties"). RECITALS A. Friedman Luzzatto is a municipal broker/dealer specializing in public finance and the provision of underwriting and financial advisory services to municipal and"not-for-profit" issuers. B. Truckee Donner PUD is a a public utility district, duly organized and operating pursuant to the laws of the State of California, providing electric and water service within its service territory in eastern California north of Lake Tahoe in and around the Town of Truckee, California within Nevada and Placerr Counties. C. The TDPUD wishes to finance the construction of a broadband/communications network infrastructure and start-up costs of broadband services within its service territory (the"Project"). 1.0 Financine Structure 1.1 Friedman Luzzatto agrees to develop the financing structure to obtain the lowest cost of financing through the sale of publicly offered or privately-placed Revenue Certificates of Participation, Lease Revenue Bonds, or other appropriate securities (any such securities being herein defined as the "Bonds"), and to form a syndicate to underwrite the Bonds. 1.2 Friedman Luzzatto will be active in the review of the Project for the purpose of making certain the contracts and agreements meet requirements for financing. Friedman Luzzatto will assist in developing the most secure transaction possible to receive a rating and/or credit enhancement. 1.3 Friedman Luzzatto will facilitate this process by carefully reviewing project construction contracts, payment and performance bonds, and construction draw schedules. The financing will be dependent upon the feasibility study prepared by a firm experienced in the telecommunications market. The issue will also require favorable debt service coverage ratios on the Bonds. A third-party accounting firm will prepare pro-forma projections that will be stressed under low revenue scenarios. 1.4 Friedman Luzzatto will act as senior manager and will form a syndicate of underwriters to underwrite the Bonds. The syndicate may be comprised of national and/or local firms to optimize the distribution of the Bonds. L5 It is contemplated that the Project will be financed through an"on behalf of issuer, such as a non-profit corporation existing or created by TDPUD. The repayment of the Bonds will be supported by the revenues of the Projects and will have no recourse to the other TDPUD divisions. Friedman Luzzatto will also assist in the preparation and distribution of the preliminary and final offering documents used to market and sell the Bonds, and will assist in the drafting and preparation of the financing documents, as requested and coordinated by bond counsel selected and engaged by TDPUD. 1.6 Other structural elements to the Bonds may include a Debt Service Reserve Fund established from proceeds of the issue for the benefit of the bondholders. Capitalized interest during the construction period may also be financed so that debt service payments begin only after commencement of commercial operation of the Project. To mitigate the effects of potential construction delays, adequate payment and performance bonds should be required from construction contractors, with provisions for liquidated damages sufficient to pay the debt service on the Bonds. Additionally, insurance in an amount equal to the full value of the Project should be secured to protect against physical loss or damage. Subject to market conditions and cost benefits, the payment of principal on and interest of the Bonds could be secured by qualified bond insurance. Discussions will be held with qualified insurers to insure that any credit enhancement obtained will maximize the lowest rates available. Friedman Luzzatto will analyze the cost effectiveness of securing a rating in lieu of insurance before recommending a final course of action. 1.7 Friedman Luzzatto will endeavor to obtain credit enhancement for the Bonds in order to receive the lowest cost of interest. If credit enhancement is obtained, Friedman Luzzatto will make a recommendation to sell the Bonds in a public offering to lower the overall effective cost of financing. If the Bonds receive an investment-grade rating, Friedman Luzzatto will negotiate the terms of a Bond Purchase Agreement with the TDPUD for the purchase and underwriting of the Bonds. 1.8 If, due to the nature of the Project, credit enhancement is not available, the firm will use its best efforts to privately-place non-rated, non-insured Bonds. Whether the Bonds are rated or non-rated, insured or non-insured, Friedman Luzzatto will make every effort to develop the most cost effective financing structure based on this unproven revenue stream. 2.0 Compensation and Expenses 2.1 Friedman Luzzatto shall be paid an underwriting spread of 2.25 points based on the principal amount of the Bonds that it underwrites or places for the TDPUD. The underwriting spread is subject to increase or decrease, as mutually agreed by the TDPUD and Friedman Luzzatto, by no more than 50 basis points, based on the complexity of the final structure of the transaction. Friedman Luzzatto will be paid the underwriting spread as its sole and only compensation for the services provided hereunder from the proceeds from the sale of the Bonds, if, and only if the Bonds are sold. 2.2 In addition to the underwriting spread, the following costs and expenses will, upon approval of TDPUD, be reimbursed by the proceeds of the sale of the Bonds: • Fees of the underwriter's counsel • Fees of bond counsel • Insurance premiums, if insurance is obtained • Rating fees, if ratings are obtained • Set-up fees and first year fees for the trustee • Fees for trustee's counsel • Clearing expenses • Direct out-of-pocket fees, including the cost of printing and/or electronically distributing offering materials, courier service, overnight delivery service, travel as approved by the TDPUD At the time that this Agreement is executed, the amount of the costs and expenses listed above cannot be ascertained with any degree of certainty. Friedman Luzzatto will endeavor to minimize all costs incurred in connection with the underwriting of the Project. 2.3 If, after 30 days from the date of this Agreement, the TDPUD elects to pursue the financing of the Project without utilizing the services of Friedman Luzzatto, or elects not to go forward with the project, the TDPUD shall pay the following to Friedman Luzzatto: • An underwriting breakup fee of 20 basis points,based on the principal amount of the Bonds issued, or in the event there is no bond issue, the TDPUD shall pay a flat fee of$25,000 to Friedman Luzzatto as consideration for their underwriting efforts; and • Direct, out-of-pocket expenses incurred by Friedman Luzzatto, including reasonable legal fees incurred for outside counsel. 3.0 Terms of Expiration This Agreement shall remain in effect until the first to occur of: 3.1 A definitive Bond Purchase Agreement is executed for the Project. 3.2 The Project is cancelled. 3.3 It is mutually agreed that financing cannot be structured. 3.4 The TDPUD sends Friedman Luzzatto written notice that this Agreement is terminated. 4.0 Entire Agreement This Agreement contains the entire agreement of the Parties as to the subject matter contained herein and, supersedes any prior understandings or agreements between the Parties. No amendment, change or modification of this Agreement shall be valid except if in writing signed by all Parties. 5.0 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflict of laws. 6.0 Venue Any action to enforce or interpret this Agreement shall be commenced and maintained only in a state or federal court of competent jurisdiction in Nevada County, State of California, if in state court, or in the Eastern District of California, if in federal court. Both Parties waive any right to trial by jury in such action and any claims of forum non-conveniens and/or improper or lack of jurisdiction of either such court. 7.0 No Aueney In performing their respective obligations hereunder, neither Party is acting, or is authorized to act, as agent of the other Party. 8.0 No Third Party Beneficiaries This Agreement and any Transaction pursuant hereto confer no rights whatsoever upon any person other than the Parties (and their successors and permitted assigns) and shall not create, or be interpreted as creating, any standard of care, duty or liability to any person not a Party hereto. 9.0 Assignment Neither Party shall transfer or assign all or any part of this Agreement or its rights or obligations hereunder without the prior written consent of the other Parry, which may be withheld in its sole discretion. IN WITNESS WHEREOF the Parties have executed this Agreement for Exclusive Underwriting Services. TRUCKEE DONNER Y.U.D. By: Name: Witness Title: FRIEDMAN, LUZZATTO & CO. By: Barry L. Friedman Witness Senior Vice President