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NEW ISSUE-BOOK-ENTRY ONLY .
PRELIMINARY PRIVATE PLACEMENT MEMORANDUM DATED SEPTEMBER_,2004 .;
In the opinion of Stradling Yocca Carlson &Routh, a Professional Corporation, Newport Beach, California, Special Counsel, under existing
statutes,regulations,p rulings and judicial lingai decisions and assuming certain representations and compliance with certain covenants and requirements described
terest is excluded from gross income for federal income tax purposes and is not an item of tax
herein, the portion of each Installment Payment constituting in g
preference for purposes of calculating the federal alternative minimum tax imposed on individuals and corporations. In the further opinion o(Special Counsel, v
the portion of each Installment Payment constituting interest is exempt,(rom State of California personal income tax In addition, the difference between the
issue price of a Certificate(the first price at which a substantial amount of the Certificates of a maturity is to be sold to the public)and the stated redemption
issue r maturity with respect m a Certificate constitutes original issue discount, and the amount of original issue discount that accrues to the owner of the
Certificate is excluded from the grass income of such owner for federal income tax purposes, is not an item of fax preference for purposes of the federal
alternative minimum tax imposed on individuals and corporations, and is exempt from State of California personal income fax. See the caption "TAX
EXEMPTION"herein with respect to tax consequences with respect to the Certificates.
$24,000,000'
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
REVENUE CERTIFICATES OF PARTICIPATION, SERIES 2004
Due:November 1,2016
Dated: Date of Delivery
The Truckee Donner Public Utility District(the"District")intends to issue its Revenue Certificates of Participation,Series 2004(the"Certificates")
in the original aggregate principal amount of$24,000,000*,as described herein. The Certificates are being executed and delivered in fully registered form and,
when executed and delivered will be registered in the name of Cede&Co,as nominee of The Depository Trust Company,New York,New York. Individual
purchases will be made in denominations of SlW000 plus integral multiple of$5,000 in excess thereof and will be in book-entry form only. Purchasers of the
Certificates will not receive certificates representing their beneficial ownership in the Certificates but will receive credit balances on the books of their
respective nominees. interest evidenced by the Certificates is payable semiannually on May 1 and November I of each year,commencing May 1,2005. The
Certificates will mature on November 1,2016,subject to mandatory sinking fund prepayment as described herein. Payment of the principal and interest with
respect to the Certificates is to be made to Cede&Co.,which is to disburse said payments to the beneficial owners of the Certificates through their nominees.
The Certificates are subject to optional prepayment,mandatory sinking fund prepayment and extraordinary prepayment,all as more fully
described herein. See"THE CERTIFICATES—Prepayment of Certificates"herein.
The Certificates are being delivered to provide funds(i)to pay the cost of developing,acquiring,installing,and constructing a"Fiber-to-the-Home"
broadband telecommunications network(the"Broadband System")within the territory of the District to be used for government and community connectivity
for education and other government services,along with the prevision1ttoo of her interstonand the Certificates communication
during the construction of ths and e Broadband Systemidential customers such(iii)to
cable television service,Internet access and telephone services,O Pay
and(iv)o pay costs of issuance
fund the Reserve Requirement(herein defined)for the Certificates, ance e the Certificates.
The Certificates are being delivered pursuant to the Trust Agreement(the"Trust Agreement"1 dated as of November 1, n by and among the
Tmekee Donner Public Utility District, the Truckee Donner Public Utility District Financing Corporation (the "Corporation") and d BNY Western Trost
Company, as trustee (the "Trustee"). The Certificates are payable solely from Installment Payments (defined herein) to be made by the District to the
Corporation pursuant to the Installment Purchase Agreement,dated as of November 1,2004,by and between the District and the Corporation(the"Installment LELY FROM REVENUES OF THE BROADBAND SYSTEM,
Contact"). INSTALLMENT PAYMENTS WILL BE PAYABLE BY THE DISTRICT SO
NANCE COSTS. REVENUES OF THE DISTRICT'S ELECTRIC AND WATER UTILITIES ARE
AFTER PAYMENT OF OPERATIONS AND MAINTE
NOT AVAILABLE TO MAKE INSTALLMENT PAYMENTS_ PURSUANT TO SECTION 16467 OF THE PUBLIC UTILITIES CODE OF THE STATE
OF CALIFORNIA,THE DISTRICT IS NOT AUTHORIZED TO USE REVENUES DERIVED FROM ELECTRIC OR WATER OPERATIONS OF THE
Payments subject of the terms anconditions of he Installment Purci may incur hase Agreement,onal as more lrgations payable on afully described herein,parity with or subordinate to he Installment
PURCHASE OF THE CERTIFICATES INVOLVES A SIGNIFICANT DEGREE OF RISK. SEE"CERTIFICATE HOLDERS'RISKS"
HEREIN.
THE OBLIGATION OF THE DISTRICT TO MAKE INSTALLMENT PAYMENTS PURSUANT TO THE INSTALLMENT PURCHASE
AGREEMENT DOES NOT CONSTITUTE AN OBLIGATION FOR WHICH THE DISTRICT IS OBLIGATED TO LEVY OR PLEDGE ANY
FORM OF TAXATION OR FOR WHICH THE DISTRICT HAS LEVIED OR PLEDGED ANY FORM OF TAXATION. THE OBLIGATION OF
THE DISTRICT TO MAKE THE INSTALLMENT PAYMENTS IS A SPECIAL OBLIGATION OF THE DISTRICT PAYABLE SOLELY FROM
REVENUES DERIVED BY THE DISTRICT FROM THE OPERATION OF THE BROADBAND SYSTEM AFTER PAYING OPERATION AND
MAINTENANCE COSTS(AS DEFINED HEREIN)AND DOES NOT CONSTITUTE A DEBT OF THE DISTRICT,THE CORPORATION,THE
STATE OF CALIFORNIA OR OF ANY POLITICAL SUBDIVISION 'THEREOF IN CONTRAVENTION OF ANY CONSTITUTIONAL OR
STATUTORY DEBT LIMITATION OR RESTRICTION.
THIS COVER PAGE CONTAINS CERTAIN INFORMATION FOR REFERENCE ONLY. IT IS NOT A SUMMARY OF THIS ISSUE.
INVESTORS MUST READ THE ENTIRE OFFICIAL STATEMENT TO OBTAIN INFORMATION ESSENTIAL TO THE MAKING OF AN
INFORMED INVESTMENT DECISION.
The Certificates are offered when,as and if issued by the District and accepted by the Placement Agent,subject to prior sale,withdrawal or
modification of the offer without notice,subject to the approval as to the valid and binding nature of the Installment Purchase Agreement by Stradling
Yocca Carlson&Routh,a Professional Corporation,Special Counsel,and certain other conditions. Certain legal matters will be passed upon for the
Placement Agent by Greenberg Traarig,LLP,for Cite District by Porter Simon,Professional Corporation, Truckee, California,for the Corporation by
Stradling Yocca Carlson&Routh,a Professional Corporation,and for the Trustee by its counsel. The Certificates are being offered on behalf of the
District by the Placement Agent on a best efforts, all or none basis, to eligible purchasers. It is anticipated that the Certificates will be available for
delivery to The Depository Trust Company or its agent on or about November_,_,2004.
RiviereJenison Securities, Ltd.
Placement Agent
Dated:September_,2004
No dealer, broker, salesperson or other person has been authorized by the District, the
Corporation or the Placement Agent to give any information or to make any representations,
other than those contained in this Private Placement Memorandum, and if given or made, such
information or representation must not be relied upon as having been authorized by any of the
foregoing. This Private Placement Memorandum does not constitute an offer to sell or the
solicitation of an offer to buy, nor shall there be any sale of the Certificates by any person in any
jurisdiction in which it is unlawful for such person to make such offer, solicitation or sale. The
information and expressions of opinion herein are subject to change without notice, and neither
the delivery of this Private Placement Memorandum nor any sale of the Certificates shall under
any circumstances create any implication that there has been no change in the affairs of the
District, the Corporation or other matters described herein since the date hereof.
The Placement Agent has provided the following sentence for inclusion in this Private
Placement Memorandum:
The Placement Agent has reviewed the information in this Private Placement
Memorandum in accordance with, and as part of, its responsibilities to investors under the
federal securities laws as applied to the facts and circumstances of this transaction, but the
Placement Agent does not guarantee the accuracy or completeness of such information.
This Private Placement Memorandum and the information contained herein are subject to
completion or amendment without notice. These securities may not be sold nor may an offer to
buy be accepted prior to the time the Private Placement Memorandum is delivered in final form.
Under no circumstances shall this Private Placement Memorandum constitute an offer to sell or
the solicitation of an offer to buy, nor shall there be any sale of these securities in any
jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such jurisdiction.
THE CERTIFICATES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE TRUST
AGREEMENT HAS NOT BEEN QUALIFIED UNDER THE TRUST INDENTURE ACT OF
1939, AS AMENDED, IN RELIANCE UPON THE EXEMPTIONS CONTAINED IN SUCH
ACTS. THE SECURITIES AND EXCHANGE COMMISSION HAS NOT PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PRIVATE PLACEMENT MEMORANDUM.
WITH RESPECT TO THE VARIOUS STATES IN WHICH THE CERTIFICATES MAY BE
OFFERED, NO ATTORNEY GENERAL, STATE OFFICIAL, STATE AGENCY OR
BUREAU, OR OTHER STATE OR LOCAL GOVERNMENTAL AUTHORITY OR ENTITY
HAS PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PRIVATE
PLACEMENT MEMORANDUM OR PASSED UPON OR ENDORSED THE MERITS OF
THIS OFFERING OF THE CERTIFICATES. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THIS MEMORANDUM IS SUBMITTED ON A CONFIDENTIAL BASIS FOR USE
BY SOPHISTICATED INVESTORS THAT MEET THE DEFINITION OF "QUALIFIED €
INSTITUTIONAL BUYER" UNDER RULE 144A PROMULGATED UNDER THE
SECURITIES ACT.
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THE SECURITIES ARE BEING OFFERED PRIVATELY. TRANSFERS OF THE
SECURITIES OFFERED HEREBY MAY BE MADE PURSUANT TO RULE I44A UNDER
THE SECURITIES ACT. ANY SUCH SALE MUST ALSO COMPLY WITH ANY
APPLICABLE STATE SECURITIES REQUIREMENTS.
THIS PRIVATE PLACEMENT MEMORANDUM HAS BEEN PREPARED ONLY
FOR THE BENEFIT OF PERSONS INTERESTED IN THE PROPOSED PRIVATE
PLACEMENT OF THE CERTIFICATES OFFERED HEREBY, AND ANY REPRODUCTION
OR DISTRIBUTION, INCLUDING, WITHOUT LIMITATION, ELECTRONIC MAILING,
OF THIS PRIVATE PLACEMENT MEMORANDUM, IN WHOLE OR PART, OR THE
DIVULGENCE OF ANY OF ITS CONTENTS, WITHOUT THE PRIOR WRITTEN
CONSENT OF THE PLACEMENT AGENT AND THE DISTRICT IS PROHIBITED
NOTWITHSTANDING THE FOREGOING, BY ACCEPTING DELIVERY OF THIS s
PRIVATE PLACEMENT MEMORANDUM, EACH PROSPE WITHOUT RLIMITATION
AUTHORIZED TO DISCLOSE TO ANY AND ALL PERSONS,
OF ANY KIND, THE TAX TREATMENT AND TAX STRUCTURE OF THE
CERTIFICATES AND THE TRANSACTIONS DESCRIBED HEREIN AND ALL
MATERIALS OF ANY KIND (INCLUDING OPINIONS OR OTHER TAX ANALYSES)
THAT ARE PROVIDED TO ANY OFFEREE RELATING TO SUCH TAX TREATMENT
AND TAX STRUCTURE. NONE OF THE PLACEMENT AGENT, THE DISTRICT OR ANY
OF THEIR AFFILIATES ASSERTS ANY CLAIM OF PROPRIETARY OWNERSHIP OR
EXCLUSIVE IIHSPECT TO THE TAX THE PAYMENT FACILITY TY OR TREATMENT OR HE T
AX STRUCTURE
OF THE CERTIFICATES OR PAYMENTI TRANSACTIONS
DESCRIBED HEREIN.
THE OFFERING CONTEMPLATED BY THIS PRIVATE PLACEMENT
MEMORANDUM WILL BE MADE IN RELIANCE UPON AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT FOR MUNICIPAL
SECURITIES.
IN CONNECTION WITH THE OFFERING OF THE CERTIFICATES, THE
PLACEMENT AGENT MAY OVER-ALLOT OR EFFECT TRANSACTIONS THAT
STABILIZE OR MAINTAIN THE MARKET PRICE OF THE CERTIFICATES AT A LEVEL
ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, F COMMENCED, MAY BE DISCONTINUED AT ANY TIME. THE
PLACEMENT AGENT MAY OFFER AND SELL THE CERTIFICATES TO CERTAIN
DEALERS AND DEALER BANKS AND BANKS ACTING AS AGENT AT PRICES
LOWER THAN THE PUBLIC OFFERING PRICE STATED ON THE COVER PAGE
HEREOF AND SAID PUBLIC OFFERING PRICE MAY BE CHANGED FROM TIME TO
TIME BY THE PLACEMENT AGENT.
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TRUCKEE DONNER PUBLIC UTILITY DISTRICT
DISTRICT BOARD OF DIRECTORS
James Maass,President
Nelson Van Gundy, Vice President
Joseph Aguera, Director
Ron Hemig, Director
Patricia Sutton, Director
DISTRICT STAFF
Peter L. Holzmeister, General Manager
GENERAL COUNSEL
Porter Simon, Professional Corporation
Truckee, California
SPECIAL SERVICES
Special Counsel
Stradling Yocca Carlson&Rauth, a Professional Corporation
Newport Beach, California
Trustee
BNY Western Trust Company
Los Angeles, California
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TABLE OF CONTENT
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IINTRODUCTION ...................................................................................................................
..................... I
General....................................................................................................................
Purpose of Issue..................................................................................................................................................... 1
Planof Finance......................................................................................................................................................2
3
Eligible Investors..................................................................................................... ....2
Restrictionon Transfers....................................................................................................................... #
Forward Looking Statements.................................................................................................................................2
........2 f
THE CERTIFICATES......................................................................................................................................... s
GeneralProvisions....................................................................................................................
Book-Entry Only System.............. Only System ....................................I......................3
Transfers and Exchanges Upon Termination of Book-Entry Y Y 3 ;
Prepayment of Certificates,............................I.................. ........
Noticeof Prepayment ............................................................................................................................................5
Effect of Prepayment.............................................................................................................................................6
DEBT SERVICE SCHEDULE-I........................_-.1.........
.......... 6
.... ..................................
SECURITY FOR THE CERTIFICATES..................s an...
........................ ...............
Limited Obligations Payable From Net Revenues and Reserve Fund Amounts.................................................
.....................7
RateCovenant......................................................................... . ................................7
Reserve Fund................................................................................. . .
Additional Contracts and Bonds...................................................................................................................
ESTIMATEDUSES OF PROCEEDS..................................................................................................... ....................8
.
.......................... 9
THEDISTRICT. ................................................................................... .
General................. .. . .....................................................................................................................
........California....................................................... 9
.......................................................................
The Town of Truckee,
Land and Land Use............................................................................................................... 9
.. 10
Governance and Management--.-......................................................_............................_.......................... 10
District Powers..........................................
BudgetProcess..................................................................................................................................................... 10
THECORPORATION ..............................................................................................................................4................ 10
THE BROADBAND SYSTEM.............................................................................................................I.................... 10
GeneralDescription................................................................................................................
Broadband System Rates and Charges................Broadband System Connections and Sales Revenues..................._.................................................. 12
Discussion of Projected Broadband System Connections from Potential Customers.......................................... 12
Projected Operating Results and Debt Service Coverage..__.............
THE CONSTRUCTION CONTRACT AND GENERAL CONTRACTOIL.... 16
General.............................................................. l6
.....
CompletionDate.................................................................................................................................................. 16
Liquidated Damages............................................................................................................................................ 16
Contract Price....................
16
APPROVAL FROM THE NEVADA COUNTY LOCAL AGENCY FORMATION COMMISSION_ . I7
' CERTIFICATE HOLDERS' RISKS....................................................................................................................... 17
Prepayment of Certificates Prior to Maturity....................................................................................................... 17
LimitedObligation-............................................................................................................................................. 17
ConstructionRisks............................................................................................................................................... 18
FinanceRisks........................................................................................
iv
1 Technological Advances and Obsolescence........................................................................................................ 18
Competition from other Service Providers........................................................................................................... 18
Federal Regulation and Oversight............................ .. . ..' . . ....................................................................................20
State Prohibition of Local Government Providing Telecommunication Services......_...............
Litigation Risks..................... 21
Certain Matters Relating to the Enforceability of the Trust Agreement, Installment Purchase Agreement; 21
Enforceability of Remedies.........................
CreditRating., .........................................................................................................21
g.rket...............erti.icat s ................................................._..............................................................21
Secondary Market for the Certificates.................................................................................................................21
Limited Transferability...............................
e Impact of Inflation...-
InforInformation ........................................................._..........................................................................22
mation Not Verified............. ......... .............................................................................................
CONSTITUTIONAL LIMITATIONS ON APPROPRIATIONS AND CHARGES 22
..................
Article XIIIB......
..._,,,............................. 22
....................................................................................................................22
Future Initiatives......................... ...... .................................................................................................................22
APPROVAL OF LEGAL PROCEEDINGS...............................................................................................................22
LITIGATION.,... ........................................................................................................................................................23
TAXEXEMPTION....................................................................................................................................................23
CONTINUINGDISCLOSURE......................................................................................................I...........................24
FORWARDLOOKING STATEMENTS...................................................................................................................24
NORATING...... ................................................. . ... . ............................................................................................24
PLACEMENT AND RESTRICTION ON TRANSFER.... .
MISCELLANEOUS............................. . .
24
. . . . . . . . . . . . . ....... . . . ............................... . . . . . . . . .
APPENDIX A DEFINITIONS AND SUMMARY OF CERTAIN PROVISIONS OF THE INSTALLMENT
PURCHASE AGREEMENT.................... . . . 25
.. .. . ..................................................... .
APPENDIX B DEFINITIONS AND SUMMARY OF CERTAIN PROVISIONS OF THE A 1
TRUST AGREEMENT...............
APPENDIX C FORM OF OPINION OF SPECIAL COUNSEL..........
C-1 APPENDIX D INFORMATION CONCERNING DTC.........................................................................................D-I
APPENDIX E FORM OF CONTINUING DISCLOSURE CERTIFICATE.........................................
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PRIVATE PLACEMENT MEMORANDUM
FOR #.
$24,000,000*
TRUCKEE DONNER PUBLIC UTILITY DISTRICT ,
REVENUE CERTIFICATES OF PARTICIPATION,SERIES 2004
INTRODUCTION
Y
General
and all appendices hereto,provides certain
This private Placement Memorandum,including the cover page
information concerning the sale and delivery of Truckee Donner Public Utility District Revenue Certificates of
Participation, Series 2004 in the original aggregate principal amount of $24,000,000" (the "Certificates").
hereinafter set forth do
definitive, and reference summaries
of various
documents document for complete details of all t not purport
d cond be
All statements
qualified in their entirety by reference to each document. Capitalized terms use
herein are d and not otherwise
defined herein shall have the meanings ascribed thereto in Appendix A attached hereto.
The Certificates represent the interests of the registered owners a ahere Truckee Donner Public Utility
of (the "Certificate owners" or
"Owners") in installment Payments (the "Installment Payments') p yble by
District (the "District") b der and between thePDistrrict and ase Tethe eTrunt dckee Donner as of oPublc Utility ty District Financing
Purchase Agreement'), y
eing executed and
Corporation, a nonprofit public
lic benefit Public Utility District Act of the State ion (the a of California, being sDivi areson 77 of the Public
delivered pursuant to (i) tat a Trust Agreement dated as of November 1, 2004 (the "Trust
Utilities Code of California (the "Act'), (�) Los Angeles,
Agreement"), by and among the District, the Corporation and BNY Western Trust Company, g
California, as trustee (the
to an lrustee"), and (iii) a resolution of the ed on September 1, 2004 (the
Assignmentt Agreement dated as November It 2004a(he "Assignment Agreement"),
"Resolution"). to the
oration
n the Trustee Corporation
has
assigned u for e t
t of the
by and
between
oa a Agreement including the
owners the Certificates, substantially all is rights uderthens
Corporation's right to receive Installment Payments payable under the Installment Purchase Agreement and
Corporation's rights to enforce payment by the District of such Installment Payments when due.
Purpose of Issue
The sue Certificates are being delivered to provide funds(i)to pay the costs of acquiring,installing, developing
and constructing(including the reimbursement of certain costs previoofst incurred y
the
rict) a
he o
District be used for b
for government and
Home" broadband telecommunications network within the territory and
community connectiviment
communication servictry to bfor usiness iness and residential cucation and other ustomers omers such as cable television service'
Internet ac the provision of other cess and
telephone services (the "Broadband System"), (ii) to pay capitalized interest on the Certificates during the
construction of the Broadband System, (in) to fund the Reserve Requirement for the Certificates, and (iv) to pay
costs of issuing the Certificates.
Plan of Finance
Pursuant to the Installment Purchase Agreement, the District will purchase the Broadband System from the
Corporation. In consideration for such purchase,the District will make the Installment Payments to he Corporation,
ent, the
st
t is expected that the
inlivered to the
vestors. The be The Certnfeate represent en the t individe. ual intereser the t in he Installment Payments;thus each s will be payment on the
on the
portionent Payment.
aof represent
Installment Payment con interest and stitutingncipalint Brest (and originall issueng ldiscount) will belexcluded from gross
portion
Preliminary,subject to change.
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income for federal income tax purposes and will not be an item of tax preference for purposes of calculating the
federal alternative minimum tax imposed on individuals and corporations.
The proceeds of the Certificates, after funding the amounts for capitalized interest during the construction
period,the funding of a reserve fund for the Certificates and the payment of the costs of issuance for the Certificates,
will be deposited in the Acquisition Fund. Amounts in the Acquisition Fund will be drawn down over a two-year
construction period (i) to pay costs of the construction and initial operation of the Broadband System and (it) to
reimburse the District for preliminary development costs of the Broadband System.
Eligible Investors
The Certificates are being offered only to "qualified institutional buyers"("QIBS") as defined by the Rule
144A promulgated under the Securities Act. The Certificates will be sold in minimum denominations of$100,000
to investors that will be required to represent that they are a QIB. See"PLACEMENT AND RESTRICTIONS ON
TRANSFER"herein.
Restriction on Transfers
This Certificates may not be transferred or resold except to a QIB and as permitted under the Securities Act
1933, as amended, pursuant to registration or exemption therefrom and may not be sold or transferred in principal
amounts of less than$10 000. Each transferee must represent that such purchaser or transferee is a QIB at the time
of acquisition of the Certificates. See"PLACEMENT AND RESTRICTIONS ON TRANSFER"herein.
Forward Looking Statements
Certain statements included or incorporated by reference in this Private Placement Memorandum constitute
"forward-looking statements" within the meaning of the United States Private Securities Litigation Reform Act of
1995, Section 21E of the United States Securities Exchange Act of 1934, as amended, and Section 27A of the
United States Securities Act of 1933, as amended. Such statements are generally identifiable by the terminology
used such as "plan," "expect," "estimate," "project," "budget' or other similar words. Such forward-looking
statements include, but are not limited to, certain statements contained in the information under the caption "THE
BROADBAND SYSTEM"and"THE DISTRICT." See also"FORWARD LOOKING STATEMENTS HEREIN."
THE ACHIEVEMENT OF CERTAIN RESULTS OR OTHER EXPECTATIONS CONTAINED IN
SUCH FORWARD-LOOKING STATEMENTS INVOLVE KNOWN AND UNKNOWN RISKS,
UNCERTAINTIES AND OTHER FACTORS WHICH MAY CAUSE ACTUAL RESULTS, PERFORMANCE
OR ACHIEVEMENTS DESCRIBED TO BE MATERIALLY DIFFERENT FROM ANY FUTURE RESULTS,
PERFORMANCE OR ACHIEVEMENTS EXPRESSED OR IMPLIED BY SUCH FORWARD-LOOKING
STATEMENTS.
THE CERTIFICATES
General Provisions
The Certificates will be executed and delivered in the aggregate principal amount of$24,000,000'. The
Certificates will bear interest from and be dated the date of delivery. Interest evidenced by the Certificates will be
payable semiannually on May I and November 1 of each year, commencing May I,2005 (each, a"Payment Date")'
Interest will be calculated at the rates set forth on the inside front cover page hereof and on the basis of a year of
360 days comprised of twelve 30 day months. The Certificates will mature on November 1, 2016, subject to
mandatory sinking fund prepayment as described under "THE CERTIFICATES — Prepayment of Certificates -
Mandatory Sinking Fund Prepayment'herein.
Preliminary, subject to change.
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The Certificates will be delivered only in fully registered form and, when executed and delivered, will be
registered in the name of Cede& Co., as nominee of The Depository Trust Company, New York, New York
("DTC"). DTC will act as securities depository for the Certificates. Ownership interests in the Certificates may be
purchased in book-entry form only in denominations of$100,000 and integral multiples of$5,000 in excess thereof.
See the caption"Book-Entry Only System'below and Appendix D attached hereto.
In the event the book-entry only system described below is discontinued, the principal evidenced by any
Certificate will be payable by check or draft of the Trustee upon presentation and surrender thereof at maturity or
upon prior prepayment at the office of the Trustee in Los Angeles, California (the "Office of the Trustee"). Such
principal and interest shall be payable in lawful money of the United States of America.
Book-Entry Only System
One fully-registered Certificate will be executed and delivered for each maturity of the Certificates in the
principal amount of the Certificates of such maturity. It will be registered in the name of Cede&Co, and will be
deposited with DTC. As long as the ownership of the Certificates is registered in the name of Cede&Co.,the term
"Owner" as used in this Private Placement Memorandum shall refer to Cede& Co. and not to the actual purchasers
of the Certificates(the`Beneficial Owners").
The District may decide to discontinue use of the system of book-entry transfers through DTC (or a
successor securities depository). In that event,the Certificates will be printed and delivered and will be governed by
the provisions of the Trust Agreement with respect to payment of principal and interest and rights of exchange and
transfer.
The District cannot and does not give any assurances that DTC participants or others will distribute
payments with respect to the Certificates received by DTC or its nominee as the registered Owner, or any
prepayment or other notices, to the Beneficial Owners, or that they will do so on a timely basis, or that DTC will
service and act in the manner described in this Private Placement Memorandum. See Appendix D hereto for
additional information concerning DTC.
Transfers and Exchanges Upon Termination of Book-Entry Only System
In the event the book-entry system described above is discontinued, the Certificates will be printed and
delivered as provided in the Trust Agreement. Thereafter, any Certificate may, in accordance with its terms, be
transferred on the Registration Books by the person in whose name it is registered, in person or by such person's
duly authorized attorney,upon surrender of such Certificate at the Office of the Trustee accompanied by delivery of
a duly executed instrument of transfer in a form approved by the Trustee. Upon the surrender of a Certificate for
transfer, the Trustee is to execute and deliver a new Certificate or Certificates of the same maturity in the same
principal amount. The Trustee may require the Certificate Owner requesting any such transfer to pay any tax or
other governmental charge required to be paid in connection therewith.
Certificates may be exchanged at the Office of the Trustee for a like aggregate principal amount of
Certificates of other authorized denominations of the same maturity. The Trustee may require the Certificate Owner
requesting any such exchange to pay any tax or other governmental charge required to be paid in connection
therewith.
The Trustee shall not be required to register the transfer of or to exchange any Certificate during the period
in which the Trustee is selecting Certificates for prepayment or of any Certificate that has been selected for
prepayment.
Prepayment of Certificates
Optional Prepayment. The Certificates are subject to prepayment at the option of the District and as
directed by the District in whole or in part on any date, upon notice as provided herein, on or after November 1,
2014, at a prepayment price equal to the percentage of the outstanding principal amount thereof together with a
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prepayment premium equal to the Redemption Price shown below (as a percentage of the outstanding principal
amount to be redeemed),together with interest accrued to such date fixed for prepayment:
Period During Which Prepaid Redemption Price*
(both dates inclusive)
November 1,2014 through October 31, 2015 102%
November 1,2015 through October 31,2016 101%
Mandatory Sinkingnd Prepayment. The Certificates are subject to mandatory prepayment prior to such
stated maturity in part(by lot) on each November I on and after November I,2007* in integral multiples of$5,000,
solely from scheduled Installment Payments paid by the District under the Installment Purchase Agreement, at a
Prepayment Price equal to 100% of the principal amount thereof(together with interest accrued to such dated fixed
for prepayment), without premium,in accordance with the following schedule:
Prepayment Date*
(November 1) Principal Amount
2007 $
2008
2009
2010
2011
2012
2013
2014
2015
2016t
t Final Maturity
Prenavment from Insurance or Condemnation Proceeds. The Certificates are subject to prepayment prior to
maturity, in whole or in part on any date, by lot, in integral multiples of$5,000, from prepaid Installment Payments
made by the District from Net Proceeds, upon the terms and conditions of, and as provided for in, the Trust
Agreement (from proceeds of condemnation) and the Installment Purchase Agreement (from excess insurance
proceeds or proceeds from condemnation), at a Prepayment Price equal to 100% of the principal amount thereof
(together with interest accrued to such dated fixed for prepayment),without premium.
Prenavment from Unspent Moneys in Acquisition Fund. The Certificates are subject to prepayment prior
to maturity, in whole or in part on any date on and after 1, 200— from unspent moneys in the Acquisition
Fund established under the Installment Purchase Agreement(for amounts not necessary for Installment Payments),
by lot, in integral multiples of$5,000,at a Prepayment Price equal to 100%of the principal amount thereof(together
with interest accrued to such dated fixed for prepayment),without premium.
Prepayment in the Event of Change in Law. The Certificates are subject to prepayment prior to maturity,in
whole or in part on any date, (i)as a result of changes in the constitutions or laws of the United States or the State of
California, any executive or administrative action by any federal, state or local entity, or any final decree or
judgment of any court after the contest thereof by the District, which materially adversely affect the ability of the
District to own or operate the Broadband Systems, (it) the Installment Purchase Agreement becomes void or
unenforceable or impossible of performance in accordance with the intent and purpose of the parties as expressed
therein or(in) unreasonable burdens or excessive liabilities are imposed upon the District by reason of its ownership
Preliminary; subject to change.
4
t
or operation of the Broadband System, in each case at a Prepayment Price equal to 100% of the principal amount
thereof(together with interest accrued to such dated fixed for prepayment),without premium.
Prenayment upon Determinationf Taxability The Certificates are subject to prepayment in whole upon
)sequent to such a
lity On t e
t date
the Taxability ncafterof gD tonn of notterminat
inatiice as provTaxabided i»he Trust sAgreement,atea Prepayment Price equal on of
eto 00%rof the
principal amount thereof(together with interest accrued to such dated fixed for prepayment),without premium.
Pacates of
rtial Pre ament of Certificates. Upon surrender of any Certificate prepaid in part only,the Trustee will r
execute and deliver to the owner thereofat thrincpalsamoume of eto��thecrmprepaidCport nTeofrtheeCertificates
authorized denominations equal in aggregate p P"
surrendered and of the same maturity.
Notice of Prepayment
Notice of prepayment shall be mailed, first class postage prepaid, to the respective Owners of the
any
esses appearing on
ICertnfoificates rmation Services and bprepay eyed ment t their
addror ovem ght mail t the Certificate
Securities Depositories t ieistration sat least ooks 30 days
but not more than 60 days prior to the prepayment date.
Each notice of prepayment shall state the date of notice, the prepayment date, the place or places of
prepayment and the Prepayment Price, shall designate the maturities, CUSIP numbers, if any, and, if less than all
such maturity to be
d, the
l numbers of the Certificates of
Crtitatbesg°tvin any
the inch number are to bof each1 Certificate aor by suiting that all Certificates between two stated
prepaid y g
numbers, both inclusive, have been called for prepayment and, in the case to Certificates to be prepaid in part only,
portion of the principal represented
the portion to be prepaid. Each such notice shall also state that on said date there will become due and payableon
each of said Certificates the Prepayment price thereof or of said specified p
Thereby in the case of a Certificate to be prepaid in part only, and that that moneys for prepayment have
hat(Provided
ate
erest
e and shall requve t hatTrustsuchrom and aftrespect
Certificatesebe then such psurrenderetddto thetTrustee.tAny defect i shallthereto n the or the
accrue
mailing thereof will not affect the validity of the prepayment of any Certificate.
Notice of prepayment of Certificates shall be given by the Trustee on behalf of and at the expense of the
District.
Effect of Prepayment
When notice of prepayment has been duly given and moneys for payment of the Prepayment Price of,
with respect to, the Certi will, on the
ficates(or portions thereof) so called
together with interest accrued to the prepayment date wi
for prepayment are held by the Trustee, the Certificates (or portions thereof) so called for prepayment
prepayment date designated in such notice,become due and payable at the Prepayment Price specified in such notice
portions thereof)will cease to be
and interest accrued thereon to the prepayment date; and from and after the prepayment date interest represented y
the Certificates so called for prepayment will cease to accrue, said Certificates(or p
entitled t any benefit or security under the Trust Agreement,and the Owners of said Certificates wilt have no rights
in respect thereof except to receive payment of said Prepayment Price and accrued interest.
5
DEBT SERVICE SCHEDULE
Set forth below is a schedule of Series 2004 Installment Payments representing the interest and principal
Payments on the Certificates for the periods as shown below.
Date _ Principal Interest Outstanding
Principal Total
May 1,2005 ----
November 1, 2005 $ $
May 1, 2006
November 1, 2006
May 1, 2007 $_
November 1, 2007
May 1,2008
November 1, 2008
May I, 2009
November 1,2009
May 1,2010 $_
November 1, 2010
May 1, 2011
November I, 2011
May 1, 2012
November 1,2012
May I,2013
November I,2013
May I,2014
November I,2014
May 1,2015
November 1, 2015
May 1,2016
November 1,2016
SECURITY FOR THE CERTIFICATES
Each Certificate represents a direct,undivided fractional interest in Installment Payments to be made by the
District under the Installment Purchase Agreement. The Corporation has assigned substantially all of its right, title
and interest in the Installment Purchase Agreement to the Trustee pursuant to the Trust Agreement, for the benefit of
the Owners of the Certificates,including its right to receive Installment Payments and its rights as may be necessary
to enforce payment of the Installment Payments when due.
Limited Obligations Payable From Net Revenues and Reserve Fund Amounts
All Revenues under the Installment Purchase Agreement and the Reserve Fund have been irrevocably
pledged to the payment of the Installment Payments as provided in the Installment Purchase Agreement and the
Revenues and amounts in the Reserve Fund shall not be used for any other purpose white any of the Installment
Payments remain unpaid; provided that out of the Revenues there may be apportioned such sums for such purposes
as are expressly permitted in the Installment Purchase Agreement. This pledge, together with the pledge created by
all other Contracts and Bonds, shall constitute a first lien on the Revenues and amounts in the Reserve Fund, subject
to application of Revenues and amounts in the Reserve Fund as permitted in the Trust Agreement.
In order to carry out and effectuate such pledge and lien, the District has agreed and covenanted that all
Revenues shall be received by the District in trust and shall be deposited when and as received in a special fund
designated as the "Revenue Fund," and which fund the District has agreed and covenanted to maintain and to hold
separate and apart from other funds so long as any Contracts or Bonds remain unpaid. Moneys in the Revenue Fund
shall be used and applied by the District as provided in the Installment Purchase Agreement.
6
t
r
Notwithstanding anything contained in the Installment Purchase Agreement, the District shall not be
ource of income ther
an the Rev
require payment advance
any mot'amountsydue unders derived rthe Installment Purchaseom any soAgreehment or for the performanceenues in the uof any
agreements or covenants required toy performed by it Goose sod in on the
sosuchallment moneyspurchase
are derived froAgreem atsource
District may, however, advance moneys for any such pup g
legally available for such purpose and may be legally used by the District for such purpose. INSTALLMENT
s
BROADBAND
PAYMENTS WILL BE PAYABLE BY THE DISTRICT SOLELY FROM REVENUES OF THE
SYSTEM, WILL
PAYMENT OF OPERATIONS AND MAINTENANCE COSTS, AND FROM AMOUNTS IN
THE RESERVE FUND. REVENUES OF THE DISTRICT'S ELECTRIC AND WATER UTILITIES ARE NOT
AVAILABLE TO MAKE IN PAYMENTS. PURSUANT TO SECTION 16467 OF THE PUBLIC
UTILITIES CODE OF THE STATE OF CALIPORNIA, THE DISTRICT IS NOT AUTHORIZED TO USE
REVENUES DERIVED FROM ELECTRIC OR WATER OPERATIONS OF THE DISTRICT TO MAKE
INSTALLMENT PAYMENTS.
THE TRUSTEE, ON BEHALF OF THE OWNERS, SHALL HAVE NO SECURITY INTEREST IN OR
MORTGAGE ON THE BROADBAND SYSTEM OR OTHER ASSETS OF THE DISTRICT, AND NO
DEFAULT UNDER LT PURCHASE EMENT SHALL
ERUST AGREEMENT THE DISTRICT O 1
CT OF THE
BY I BROADBAND SYS NSTALLmEN
EM OR THERLOSS OF OTHER
RESULT IN HEO S
ASSES OF THE DISTRICT.
N OF THE DISTRICT TO MAKE INSTALLMENT PAYMENTS PURSUANT TO
THE INSTALLMENT ELIG ATIO PURCHASE AGREEMENT DOES NOT CONSTITUTE AN OBLIGATION FOR WHICH
THE DISTRICT IS OBLIGATED TO LEVY PLEDGE ANY FORM OF TAXATION OR FOR WHIOF THE
CH THE
Y FORM
DISTRICT HAS LEVIEDPLEDGED
DISTRICT TO MAKE THEOINSTALLLMENTA PAYMENTS IS AT SPEC ALL OBLIGAT ONAXATION THEIOTHE F THE ERATI N
PAYALE SOLELY DERIVED BY THE DISTRICT
OF ITS BROADBAND O STEM AFTER M THE NET REVENUES PAYING OPERATION AND MAINTENANCE COSTS AND FROM
CORPORATION,OUNTS IN TE RESERVE THE STATE UNFOF DCTHE DISTRICT, THE
ALIDFORONIA DESNOR ANYOT STITUTE APOLI POLITICAL SU T OF BDIV S ON THEREOF IN
CONTRAVENTION OF ANY CONSTITUTIONAL OR STATUTORY DEBT LIMITATION OR
RESTRICTION.
Rate Covenant
The installment Purchase Agreement requires the District, to the fullest extent permitted by law, to fix,
s and charges for the Broadband Services which will be at least suffi
prescribe and collect rate cient to yield, during
make such
each Fiscal Year, Net Re veues equal to one hundred twenty-five percent 0) of Debt Service for such Fisch
i
year. This District may make adjustments from time to time n such ratesates and stages and may
ates and
classification thereof as it all
reduce
Revenues from such reduced trates and ha gess necessary, butswill atoall timestbe he ufficient t charges meet the requirements described
above.
Reserve Fund or require the
nt of a Reserve Fund
The Trust Agreement and the Instalment maximumchase Agreeme annual debt service due onethe Certificates, which Reserve
in an amount equal $.1 the day
Fund shall be on the Certificates, yment Date
lly londed the moneys n the Certificate payment and are insufom the proceeds of the Certificates fic ent tosmaket herpaymen to any taequired by
them to ih Certificate P yment Fund the amount of such insufficiency. In the on such payment date, the revent hatustee lthe Truustee transfer ohas ltransferred
on
Fu Payment
moonyceipt of the moneys Reserve
from he DiFund strict ict to the increase the balance n he Reserve aFund tolthe Res the Tr
erve Rust equirement,ementthe
Trustee shall deposit such moneys in the Reserve Fund.
7
Additional Contracts and Bonds
Under the Installment Purchase Agreement, the District may at any time execute any Contract or issue any
Bonds,as the case may be,as described below:
(i) The Net Revenues for the most recent audited Fiscal Year preceding the date of adoption by the
Board of Directors of the District of the resolution authorizing the issuance of such Bonds or the date of the
execution of such Contract, as the case may be, as evidenced by both a calculation prepared by the District and a
special report prepared by an Independent Certified Public Accountant or an Independent Financial Consultant on
such calculation on file with the District, shall have produced a sum equal to at least one hundred twenty five
percent(125%)of the Debt Service for such Fiscal Year;and
(ii) The Net Revenues for the most recent audited Fiscal Year preceding the date of the execution of
such Contract or the date of adoption by the Board of Directors of the District of the resolution authorizing the
issuance of such Bonds, as the case may be, including adjustments to give effect as of the first day of such Fiscal
Year to increases or decreases in rates and charges for the Broadband Service approved and in effect as of the date
of calculation, as evidenced by both a calculation prepared by the District and a special report prepared by an
Independent Certified Public Accountant or an Independent Financial Consultant on such calculation on file with the
District, shall have produced a sum equal to at least one hundred twenty five percent(125%) of the Debt Service for
such Fiscal Year plus the Debt Service which would have accrued on any Contracts executed or Bonds issued since
the end of such Fiscal Year assuming such Contracts had been executed or Bonds had been issued at the beginning
of such Fiscal Year plus the Debt Service which would have accrued had such Contract been executed or Bonds
been issued at the beginning of such Fiscal Year; and
(iii) The estimated Net Revenues for the then current Fiscal Year and for each Fiscal Year thereafter to
and including the first complete Fiscal Year after the latest Date of Operation of any uncompleted project to be
financed from proceeds of such Contracts or Bonds, as evidenced by a certificate of the General Manager of the
District on File with the District including (a
Projects) an allowance for estimated Net Revefter giving effect to the completion of all such uncompleted Parity
nues for each of such Fiscal Years arising from any increase in the
income, rents, fees,rates and charges estimated to be fixed, prescribed or received for Broadband Service and which
are economically feasible and reasonably considered necessary based on projected operations for such period, as
evidenced by a certificate of the Manager on file with the District, shall produce a sum equal to at least one hundred
twenty five percent (125/0) of the estimated Debt Service for each of such Fiscal Years, after giving effect to the
execution of all Contracts and the issuance of all Bonds estimated to be required to be executed or issued to pay the
costs of completing all uncompleted projects within such Fiscal Years, assuming that all such Contracts and Bonds
have maturities, interest rates and proportionate principal repayment provisions similar to the Contract last executed
or then being executed or the Bonds last issued or then being issued for the purpose of acquiring and constructing
any of such uncompleted Parity Projects.
Nothing in the Installment Purchase Agreement precludes the District from entering into obligations which
are Operation and Maintenance Costs and, therefore, payable from Revenues prior to the Installment Payments or
from issuing any bonds or executing contracts the payments under which are payable from Net Revenu
subordinate to Bonds or Contracts of the District. es
R
ESTIMATED USES OF PROCEEDS
discount and accrued interest).
The following table sets forth the estimated uses of proceeds of the Certificates(exclusive of original issue
z
t
Acquisition Fund(Construction&Electronics)
Delivery Cost Fundy)
Reserve Fund(Debt Service)
Truckee Donner PUD Reimbursement
Total
To be applied to the costs of issuing the Certificates.
r
8
t
__ s
}
is
s;
THE DISTRICT
General
f since March 7, 1929, and operates under
The District was incorporated on and has operated continuously for the
the Public Utility District Act, Division 12 of the State of California Public Utility Code (the "Act"),
purposes of furnishing utilities within the District.
in eastern
of Lake Tahoe
ty
es
The District is a public and aroundutheyTownof Truckee. Cing al forme(`Truckee") and California
thinnNevada and Placer
e. The
(www tdmnd £1ec q.
cal busi
Counties.
already it write ng nearly b all locally
businesses and government offices es inothe area with ness ewater and
electricity
€
electricity (approximately 12,083 subscribers) and has an excellent reputation for integrity, customs service and
reliability.
The Town of Truckee,California
13 miles north of Lake Tahoe on
rstate
The Town oand 90 minutes from�Sacramento. Truckes a resort town, e h s experienced a very significant increase8n the
minutes from Reno,
number of vacation and second homes from residents of the San Francisco Bay area and other urban areas within a
three-hour drive of Truckee. Its proximity to Lake Tahoe, and a dozen ski resorts around Lake Tahoo, make it an
excellent year round destination for enjoying the Siena Nevada Mountains.
esid
units an
over 23
lodging umts
In 2003/2004 the Town of Truckee
approved
over three t00 new
imes r normala12,000 residents, and like the year
The second home owner/vacationing population
round residents are sophisticated and accustomed to high-end video and broadband services.
Land and Land Use
The District encompasses an area of approximately 44 square miles in eastern 12 Nevada County and
88p5%residential, 11%as is made up of
eommercials in aand 5% as publicent Placer c authority/other. The y. The Distfict,s customer
ctbexpects that he undeveloped
n-fill,will continue to be developed and that the District's estimated
land within its boundaries,both Greenfield and i
population at build out, or the year 2015,will be approximately 25,000.
Governance and Management
The District is governed by a 5-member Board of Directors (the "Board"), the members r which are
elected by the registered voters of the District to staggered four-year terms. The current directors,their occupations
and the expiration dates of their terms are set forth below.
Occupation
Board Member Expiration of Term
December 2004 School District Technology Manager
James Maass 4 Real Estate Broker
December 200
Nelson Van Gundy December 2004 Real Estate Broker
Ron Hemig Retired Mortician
December 2004 Private Business Owner
Joseph Aguera December 2006
Patricia Sutton al
ct is delegated to the r and
ary
he "Gener
Day-to-day
Holzmeistert Mr.H of theolz istri
ester has served the District aslits Gen ral Manager tsincetApril, 1984.
Manager"),
Prior to accepting the General Manager position, Mr. Holzmeister held the position of City Manager in upper
Connecticut.
9
The manager of the Broadband System is Mr.Alan Harry. Mr. Harry was hired in 1999 by the District to
plan, design and finance the Broadband System for the District. Alan's extensive local government experience in
the San Francisco Bay area,in addition to his experience with the local incumbent cable providers in Truckee since
the early 1990's, and his involvement in local service and community organizations,provides the District a manager
for this undertaking with substantial experience that may help the success of the Broadband System.
District Powers
The District is duly organized and existing under the California Public Utility District Act, see Public
Utilities Code Section 15501 et seq. Since its inception in 1927, the District,with the support of local residents,has
acquired and built numerous infrastructure to provide water and electricity to residents and businesses within its
service area. Section 16461 of the Public Utilities Code provides the District with specific powers. "A district may
acquire, construct, own, operate, control, or use, within or without or partly within or without the district, works for
supplying its inhabitants with light, water, power, heat, transportation, telephone service, or other means of
communication, or means for the disposition of garbage, sewage, or refuse matter, and may do all things necessary
or convenient to the full exercise of the powers granted in this article."
Budget Process
By November 15 of each year, the General Manager of the District submits to the Board of Directors a
proposed budget for the upcoming fiscal year. The District generally conducts public workshops to obtain
comments from residents and ratepayers. Subsequent to the workshops, the Board generally approves the budget
prior to January 1. The Board approved the 2004 budget on December 17,2003.
The District's budget is prepared on the accrual basis. For budgeting purposes, the District sets user
charges to cover operating expenses of the particular services.
THE CORPORATION
The Truckee Donner Public Utility District Financing Corporation is a nonprofit public benefit corporation,
formed on 20_ for the purpose of providing assistance to public agencies in financing, refinancing,
acquiring, constructing and rehabilitating of facilities, Land and equipment, and in the sale or leasing of facilities.
land and equipment for the use, benefit and enjoyment of the public served by such agencies or any other purpose
incidental thereto. The members of the Board of Directors of the Corporation are the members of the Board of
Directors of the District.
THE BROADBAND SYSTEM
General Description
The Certificates will be executed and delivered to finance the acquisition, installation, development and #
construction by the District of a "Fiber to the Home" broadband telecommunications network within the service
territory of the District. The Broadband System will be constructed within the service boundaries of the District
which include the territorial limits of the Town of Truckee, California and portions of Nevada County and Placer
County, California where the District provides electric and water On
services. The Broadband System will
consist of fiber optic cable plant mounted on electric utility poles and existing conduit throughout the District and
will include fiber connections to homes and businesses located within the District. In addition, the Broadband
System will include four strands of fiber which connect a headend facility located at 200. S. Virginia, Reno,Nevada
with the District's Network Operations Center located at 11570 Donner Pass Road,Truckee,California.
Construction of the Broadband S stem
m will take eighteen . The District anticipates that the construction of the Broadband
Syste (18) months to complete and will cost approximately $24 million. Broadband equipment will be provided by Wave 7 Optics, an experienced manufacturer of equipment for fiber optic neSystem
tworks.
(needs specific information about capacity of system]
a
10
i
Uses of Broadband Svstem. The Broadband System will be used by the District to enhance its delivery of
existing utility services, as well as to provide multichauel video programming service, including cable television
as well as services
d using Voice
access, certain
communications services,
over n
the Internet Protocol (Vo1P). The Districtewill also provide security monitoring services usingethe Broadband
System.
All homes within the District's service territory will be required to utilize electronic meter readingEl sric nd
es
ic and water services provided by the Dist
n connection with their electrr et. ]n addition, the District's Electric and
Water Divisions will be required to use the Broadband System to enhance the existing SCADA systems. It is f
reduce the District's electric costs by approximately 75 percent,or
estimated that SCADA will $122,000 per year.
Cable Television. The District will use the Broadband System to provide a full suite of multi-channel
S:
mers and to businesses located within the service
video programming services to residential consu area, as well as
high speed Internet access services.
er the Broadband System the District has
To facilitate the provision of these services by the District ov ,
entered companynexperiencedService
vicein plane ent datedoperatingaand maint0ain ng broadband 4 with Eagle rnetworks and in provand, lnc iding video,voice,
gle will construct and operate
o ft
data,headend located he senotcNees oadaver t The headend hose sfac]facility willursuant tbe usedgto receive veEideo programming and deliver
the District's cu
that programming prsouograes mming
programmiuire from
agcont content which System to twill be deliveredsover the BroadbandlSy teml also acln addition,
the District will obtain billing services and certain customer support and maintenance services from Eagle.
tely
els of
The video services offered will include basic
43 cable
dditional programming fchannels),amusic 70
hannels. and
programming), expanded cable service (appr approxil
Y
premium channels (such as HBO, showtime, STARZ, Encore, and others). In addition,the District will offer pay-
per-view programming as well as video-on-demand programming.Enhancements e the District's to eco cable service will
include programs on a bardility of drive without the useersonal eof Recorders
deo apes. These servicesbwill betp provided by the District through d and save iphe
use of customer-premises-based set top terminals which will be acquired by Eagle and made available to the
District's customers.
m Franchise Agreement dated April 17, 2003,the Town of Truckee
Pursuant to the terms of a Cable Syste
granted the District
Town franchise
Truckee a struct a' epequal to 5%l of grossystestan ual Agreement,
D
cable service revenues. The term
required to pay
of the Agreement expires on April 17,2013.
stem Franchise Agreement dated January 13, 2004, the County of
Pursuant to the terms of a Cable Sy
Nevada, California granted the District a franchise to construct and operate a cable system. Under the Agreement,
Nevada a franchise
fee equal to 5% of gross annual cable service
the District is required to pay the County of
revenues. The term of the Agreement expires on January 13,
the
istrict and Placer
a are
The terms c System
the Agreem nt isrexpected to be in effect before the date uof closing otf the
currently being negotiated and
Certificates.
Hi h S eed Internet Aceess. Also, the District speed
in ernetiservll of i fer to ce will be provided through use siness and residential tof cableomers s modems
Internet access using cable modem technologysent to routers operated
located at and maintained be Eagle ises provided to cost the headend location n Renoomers by ,Nevada wheree District. eit will bet sent lin he Internet protocol to IP
d use the Internet
access
backbone networks. This available using traditional gher speeds
service will enable
upusIn Internet tomers servicesaResident al Internettservnce will bificantly e available at
than
speeds of up to 1.5 mbps (megabits per second); higher speed commercial Internet services will be available at
High speed Internet access will enable customers to download and
speeds of 3.0 mbps, 6.0 mbps, and IOA mbps.
11
transfer files of data in Less time, send and receive e-mails at higher speeds than using dial up connections, and will
allow for use of full motion video.
Telecommunication Services. In addition, Eagle will provide to customers connected to the Broadband
System telecommunications services, including local exchange and long distance services. Initially, Eagle will
provide these services by reselling to customers services which it purchases from other telecommunications
companies. Upon completion of the Broadband System, Eagle will provide telecommunications services over the
Broadband System. Eagle will operate a switching facility at the Network Operations Center. Eagle expects to
include among its offerings an Internet protocol-based telephony service, commonly referred to as Voice over the
Internet Protocol or VoIP. VoIP differs from traditional telephone service. Traditional services use circuit switched
technology. Calls are routed from the point of origin to the point of termination along a single path and are directed
along that path to the destination through a series of switches which are operated by various telecommunications
providers. In contrast,with VoIP services data is segmented into packets which are individually addressed and then
transmitted over a series of networks. It will be the responsibility of Eagle, not the District, to obtain any required
certificates or authorizations to provide telecommunications service and to comply with applicable laws and
regulations governing the provision of telecommunications service. Although Eagle, not the District, will provide
consumers with telecommunications services, including VoIP services, pursuant to the agreement between the
District and Eagle, the District will derive revenues from Eagle for its use of the Broadband System to provide these
services.
Broadband System Rates and Charges
The District is not subject to the jurisdiction of, or regulation by, the California Public Utilities
Commission. The District annually determines the adequacy of the rate structure for the Broadband System after
full consideration of expected operations, maintenance and capital costs. As previously stated, the Installment
Purchase Contract requires the District to charge service rates for use of the Broadband System that will be at least
sufficient to yield during each Fiscal Year Net Revenues equal to one hundred twenty-five percent (125%) of Debt
Service for such Fiscal Year. See"SECURITY FOR THE CERTIFICATES—Rate Covenant'herein.
Projected Broadband System Connections and Sales Revenues
The following table shows the increase in the number of connections to the Broadband System projected by
the District for the current and next four fiscal years, together with the increase in the amount of its annual sales
revenues(exclusive of monthly service charges)projected by the District.
Projected Broadband System Connections and Sales Revenues
Fiscal Year Connections Sales Revenues
EndingDecember 31 Business % Residential % Business % Residential %
2006
2007
2008
2009
Source: District.
Discussion of Projected Broadband System Connections from Potential Customers
In an effort to assess the demand for broadband services, including cable television, Internet access and
telephone service, in 2000, the District conducted surveys of residential and key business users. Of the residents
surveyed, 74% subscribed to cable service—a cable penetration rate above the national average. Nearly 75%of the
residential customers surveyed owned personal computers; most of those customers also purchased Internet access
12
Of
on by residents with
es currently
ed by the
service. The survey also and dwatertSeTVICe.I In addition t O the residential a1 customeresurV y the identifiedDistrict e
District, including electric #
several key business users drawn from government, education, and private industry and commerce. Many of those
indicated that they would be interested in the services which would be provided over the Broadband System. Some
of those users also expressed dissatisfaction with current providers of these services. While these survey results
indicate that there may es a strong demand for services to be provided over the Broadband System, there can no
assurance that any of these potential customers will,in fact, subscribe to one or more of the broadband services to be
provided on the Broadband System.
[The Remainder of this Page Intentionally Left Blank]
3
13
Projected Operating Results and Debt Service Coverage
The District's estimated projected operating results for its BROADBAND System for the current and next four fiscal years are set forth below,
reflecting certain significant assumptions concerning future events and circumstances, The financial forecast represents the District's estimate of projected
financial results based upon its judgment of the most probable occurrence of certain important future events. The assumptions set forth in the footnotes to the
chart below are material in the development of the District's financial projections, and variations in the assumptions may
results. Actual operating results achieved during the projection period may vary from those presented in the forecast and such varia ons may lbematerialfinancial
Projected Operating Results
Fiscal Year Ending December 3,1
12 YEAR SUMMARY 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
Construction&Installation Take Rate 390%
Subscribers -Cumulative
Business&Governmental.Subscribers-Cumulative
Total Subscribers
Take-Rate of Total Possible
Revenue(Sources)
Installation:Residential&Business
Pre-Committed Specific risers
Internet
Video,Voice and Internet Services
Add-on Services
Advertising
Other Income
Tutal
Expenses(Uses)
Construction&Installation
Wave 7 Cost Quote of 9/23/03
Bandwidth,Installation,Wiring&Hoop-up Costs
Closing Costs
Internet
Eagle Programming,Overhead&Backoffice
Programming&Service Costs
OTHER CHARGES(pass throughs--all are 0%)
Personnel
General&Administrative
Promotion and Advertising
Bad debt
Operating Expenses
`total Expenses
NET INCOME(EBPPDA*)
Cash after Debt Payments(P&B
14
Revenue per Subscriber
Revenue per Subscriber per MONTH
f>xpense per Subscriber
Expense per Home passed
Capital per Subscriber
Net income per Subscriber
Source: District.
15
THE CONSTRUCTION CONTRACT AND GENERAL CONTRACTOR
The Construction Contract (as hereinafter defined) for the Broadband System in the form described under
this heading has been executed by the General Contractor (as hereinafter defined) and the District. Certain
provisions of the Contraction Contract are described below. The following description is not a complete or
definitive summary of the Construction Contract and is qualified in its entirety by reference to the full terms of the
Construction Contract. All capitalized terms not defined in this section shall have the same meanings given such
terms in Construction Contact.
General
The District entered into the Construction Contract with (the "General
Contractor") on 2004 (the "Construction Contract"), which provides for the construction of the
Broadband System,including, but not limited to, and utility requirements.
Completion Date
Pursuant to the Construction Contract, the General Contractor shall substantially complete the work stated
in the Construction Contract on or before 2006. The work stated in the Construction Contract
shall be completed and ready for final payment in accordance with the provisions of the Construction Contract on or
before_ _, 2006.
Liquidated Damages
The General Contractor has agreed to pay liquidated damages of$ to the District for each day that
substantial completion of the Construction Contract is delayed until the work stated in the Construction Contract is
substantially complete. After substantial completion, if the General Contractor neglects,refuses,or fails to complete
the remaining work on time, the General Contractor will pay to the District$ per day until the work stated
in the Construction Contract is completed and ready for final payment.
Contract Price
The District will pay to the General Contractor for completion of the work in accordance with the
Construction Contract
APPROVAL FROM THE NEVADA COUNTY LOCAL AGENCY FORMATION COMMISSION
In order to provide communication services, including cable television and Internet service, the District is
required to obtain the approval of the Local Agency Formation Commission of Nevada County, California
(LAFCO). LAFCO's rules and regulations provide that no special district (including the District) may provide or
engage in a new or different function or class of service in an area where such function or class of service already is
being provided, unless authorized to do so by LAFCO. Since the communications and other services which the
District seeks to provide using the Broadband System are being provided by several non-governmental entities,
LAFCO approval is required. The purposes for Local Agency Formation Commissions under California law include
avoidance of duplication of service which would result from indiscriminate formation of new local agencies or the
haphazard annexation of territory to existing local agencies. LAFCOs have authority to permit public utility
districts, such as the District,to provide services within their boundaries.
On January 18, 2001,following a public hearing on the District's application, LAFCO adopted a resolution
(Resolution 01-01) authorizing the District to provide communications services, including cable television service,
Internet access, data transfer and telephone service, subject to certain conditions. Those conditions included
requirements that the District submit to LAFCO a "Master Services Element" for the services it intends to provide,
adopt a risk mitigation plan to ensure that the District's water and electricity rate payers not be required to subsidize
the new services or support repayment of debt incurred to provide the new services, obtain franchise agreements
with the Town of Truckee and the Counties of Nevada and Placer to provide cable service, and obtain a Certificate
16
r
of Compliance from LAFCO indicating compliance with those conditions. Pursuant to that Resolution, LAFCO
would issue to the District a Certificate of Compliance upon completion of those conditions. Further,the Resolution
provided that if the Certificate of Compliance was not issued by LAFCO within two years of the Resolution(i.e.,by
January 27, 2003),the approval would expire. The Resolution further provided that if the District had not begun to
provide one or more of the service functions specified in the Resolution by January 1, 2005, LAFCO's approval of
the unprovided service functions world automatically expire. On October 22, 2002, at a public meeting, LAFCO
issued another resolution (Resolution 02-17) which extended the date for compliance with the conditions of
Resolution 01-01 until January 27, 2005. On August 11, 2004, at another public meeting, LAFCO found that those
conditions had been mostly met and voted to issue a Certificate of Compliance to the District. By this action,
LAFCO has concluded that the District has complied with the conditions of the Resolution 01-01. In addition, on
August 11, LAFCO voted to extend the District's deadline for commencement of one or more service functions until
January 1,2008.
CERTIFICATE HOLDERS'RISKS
In making investment decisions, investors must rely on their own investigations and evaluation of the
merits of a particular investment. Each investment, including the Certificates, has particular risk factors an investor
should review and evaluate. The following is a summary,which does not purport to be comprehensive or definitive,
of some of the risk factors an investor should consider before purchasing the Certificates.
Prepayment of Certificates Prior to Maturity
Purchasers of Certificates, especially those who purchase Certificates at a price in excess of their principal
amount or who hold Certificates trading at a price in excess of par, should consider the fact that the Certificates are
subject to prepayment prior to maturity. Extraordinary redemption of the Certificates described under THE
CERTIFICATES—Prepayment of Certificates-Extraordinary Prepayment" herein can occur at a redemption price
equal to the principal amount plus accrued interest, without premium, and potential investors may not be able to
reinvest their funds with an equal or better rate of return.
Limited Obligation
The Certificates are payable from Installment Payments payable by the District pursuant to the Installment
Purchase Agreement and amounts on deposit in certain funds and accounts established by the Trust Agreement,
INSTALLMENT PAYMENTS WILL BE PAYABLE BY THE DISTRICT SOLELY FROM REVENUES OF THE
BROADBAND SYSTEM, AFTER PAYMENT OF OPERATIONS AND MAINTENANCE COSTS. REVENUES
OF THE DISTRICT'S ELECTRIC DNOT AVAILALE TO MAKE
INSTALLMENT PAYMENTS. URSUANTTO SEC TON 16467I OF THEE PUBLIC UTILITIES CODE OF THE
STATE OF CALIFORNIA, THE DISTRICT IS NOT AUTHORIZED TO USE REVENUES DERIVED FROM
ELECTRIC OR WATER OPERATIONS OF THE DISTRICT TO MAKE INSTALLMENT PAYMENTS. No
assurance can be provided that the revenues of the Broadband System will be sufficient to pay all operation and
maintenance costs plus all payments of principal of and interest on the Certificates when due.
The Trustee, on behalf of the Owners, shall have no security interest in or mortgage on the Broadband
system or other assets of the District, and no default under the Trust Agreement or Installment Purchase Agreement
shall result in the loss by the District of the Broadband System or the loss of other assets of the District. See also
"SECURITY FOR THE CERTIFICATES"herein.
Construction Risks
There are many diverse risks attendant to any construction project,including,but not limited to,(i)the non-
performance by or disputes with one or more private contractors or subcontractors on various aspects of the
Broadband System, (ii) disputes with labor unions or similar labor disputes that could disrupt the Broadband
System, including increases in labor costs, (iii) the unavailability of certain materials or products necessary for the
construction of the Broadband System, (iv) environmental risks and hazards,(v) natural disasters,(vi) acts of war or
terrorism, (vii) inclement weather, (viii) shortages of, and price increases in, energy, material and skilled labor; (ix)
17
delays in obtaining or inability to obtain necessary permits, including defective plans and specifications; and (xii)
geological, construction, excavation, regulatory and equipment problems. These risks may cause construction
delays for the Broadband System that increase the cost of construction beyond available funds. There can be no
assurance that the construction of the Broadband System can be accomplished according to schedule within the
construction budget for the Broadband System. See "THE CONSTRUCTION CONTRACT" AND "THE
GENERAL CONTRACTOR"herein.
Finance Risks
The ability of the District to generate revenues sufficient to allow the District to pay the operating and
maintenance expenses of the Broadband System and to make Installment Payments under the Installment Purchase
Agreement in amounts sufficient to provide for payment of the principal of, premium, if any, and interest on the
Certificates will be determined by the ability of the District and of certain parties to perform according to their
contractual responsibilities under various agreements. The revenues and expenses of the District are subject to,
among other things, the capabilities of the management of the District, the confidence of the various broadband
service providers in the demand for their broadband service through the Broadband System, the availability of
adequate broadband services on the Broadband System, demand and utilization of the Broadband System by the
customers of the District, changes in the population or the economic condition of the District's service area,
imposition of government price controls for particular broadband services on the Broadband System,the demand for
the broadband services of the Broadband System, competition, rates, government regulations and licensing
requirements, inflation and future economic and other conditions which are unpredictable and may not be
quantifiable or determinable at this time.
Technological Advances and Obsolescence
There can be no assurance that in the future technological advances in the supply of various communication
services will not render the Broadband System obsolete or at a competitive disadvantage with other types of
communication facilities.
Competition from other Service Providers
The District may be subject to significant competition from other providers of telecommunications services
and video programming services as well as providers of Internet and other information services. Competition
encountered in the provision of any of these services could adversely affect the ability of the District to collect
sufficient revenues from the Broadband System to pay Operating Costs of the Broadband System and to pay debt
service on the Certificates of Participation.
Existing Cable TV Competition. Currently, another cable service operator, Cequel III Communications I,
LLC d/b/a Cebridge Connections ("Cebridge"), holds a franchise from the Town of Truckee to provide cable TV
service in that community. Cebridge recently acquired the cable system from the prior operator, USA Media, on
August 19, 2004. Services offered by Cebridge include basic and extended cable, premium channels (e.g., HBO,
Showtime, etc.) and pay-per-view programming. That system was built some years ago and has been upgraded to
550 MHz fiber-to-the-node technology.
The Cebridge system currently offers 64 analog channels as well as digital service. By press release dated
August 9, 2004, Cebridge officials stated that new services including high definition television (HDTV) and video-
on-demand were expected to be available by the first quarter of 2005. The press release also stated that Cebridge is
planning to reduce its prices for its Expanded Basic cable service from$36.33 per month to$33.95 per month.
Further upgrading the Cebridge system would require significant capital investment, but there can be no
assurance that Cebridge (or any subsequent owner) will not further upgrade the system in the future. Neither can
there be assurances that Cebridge will not offer its services at prices below those which the District plans to charge
for its services.
18
t
2
}
1
{
Nonexclusivit of Cable Television Franchises Video Pro rammin Com ebtiom Federal law prohibits
local governments from awarding exclusive franchises to provide cable service and there can be no assurance the
Town of Truckee will not award additional able television franchises in the future.
Federal law also allows loaf telephone companies to provide services which compete with those offered by
they companies
s in e
ramming � � s
ne
se falitieso provde uch sery ces.
dveir own broadband
United States indicated that planto epo
of the
ents
In addition, Multi-channel-homee program
Diom
Mine eTVtand he Dish Network. Likces may be obtained by e able television systistrict ems,
two Providers of direct satellite
are certain
those
dme t-to am seateliesees v available from the
icare aaatelliteyse of ry programming
channels.
e There
pro
which arenotavailablefrom cable 'r
pre
on
roadcast stations
There are no assurances that multiin many nchannel vs, local ideo programming services offeredtovertthelBroadband System willbe
are t
preferred by consumers to those available from these other providers or that such other providers will not offer their
services at prices below those which can be charged by the District for multi-channel video programming services 1
provided over the Broadband System based upon the District's cost of obtaining such services from its vendor.
ss
ervice
ing cable
ce
Internet.Access Competition.Currently,Cebridge also ooffeiphan Au ust speed 9 200rnet 4 newss release,sCebridge
modem technology over 550 MHz fiber-t-the-node technology.
d of its reet g
announced
n s ca and toeincrease
the
for residential dent al into et ssidenerviceal tt$29595 per mervice onth including modem rental.om 1.5 to 3.0 megabytes
second
(� P ) Its
In addition, Internet access service is these Isps, such as America Online and Earth. vailable today from a variety of other entities'link, enable their
Internet Service Providers ("ISPs"). yP ay,
subscribers to access the Internet by dialing a local or a toll-free telephone number and connecting to the Internet
are
es
over offeret access and
trel�tivelylslow tranmiuch ssionpspeeds arrange
of 56 Kbps or less. The referred
Broadband System w Ile nableesubseribers to
In addition,
access the Internet at much higher speeds using a "broadband" connection. As noted in the preceding paragraph,
accessCeque also offers broadband Internet access using its own cable plant and cable modem technology.
DSL"). However, DSL service is only available to limited
the local telephone company serving the Town of Truckee, SBC Communications, offers high speed Interne access
through use of Digital Subscriber Line technology ("
portions of the area to be served by the Broadband System. It is possible that in the future, SBC will offer DSL
service to larger portions of the service rea
r that it
service area. There can be no ssuranceshout portions of the
athat othe Internetrlaccess serve ebroadband
provided oveInternet
the Bits own fiber plant roadband System will
provide higher speed service or will be of higher quality than will over broadband Intemet services available.
Another source of competition for high speed Internet access may be Wireless Fidelity(commonly referred
to as "WiFi") services using any type of 802.11 (such as 802.1la, 802.1lb or 802.119) network. These services,
enable consumers to access the Internet at high
example;laptop computers and personal digital Currently thesenetworks areless employed mostly as hodevices(includig,me
available,where assistants).ants). Currntyy e
c locations),
networks or in designated"hot spots"(such as in Stanccks coffee sho be esabvshedt and els acould becomend other competitive
but it is possible that area-wide networks using this technology
couldwith the District's"wired"Broadband System.
In addition, a more advanced source of wireless broadband, commonly referred to as "WiMax" (Wireless
6 standard
under
ment and
Invorable beliorts in a number of national pubh heartens. W iMax will sbe able o deliver fixed as been the subject of
w reless broadband over
fa P to 30 miles, and will be capable of delivering high speed In
temet access to areas not
wider geographic areas — upt some consumers may find such
competitiveenalternat cable
es fo�h high speed Intemedem services. There is a possibility tha
t service provided over the Districts Broadband System. cos to be
Upon completion of the Broadband System, the District
of pounding elecs to e mmun aoi ns services,rk includingncluding
entity which will utilize the Broadband System for the pure be p provider of
loal exchroc sing of service
ii e and long
gdistanceations serv
cos to ice That
he public.illThesDisstricto does not of plan state
l besa prov govern
thep
19
telecommunications services and will not be subject to those laws. However, it will derive revenues from the use of
the Broadband System by that other entity to provide telecommunications services. In addition, the Broadband
System may be used by that other entity for the purpose of offering customers the ability to send and receive
telephone calls using an Internet platform. Such services are referred to as Voice over Internet Protocol or"Vole."
The regulatory status of VoIP is uncertain. Some contend that VOIP services are substitutes for traditional
telecommunications services and should be subject to the same regulatory requirements and the same government-
mandated costs. Others contend that VolP is an information service which uses telecommunications but is not itself
a telecommunications service. Currently the FCC is conducting a proceeding wherein it is considering many issues
involving VOIP, including whether and how to regulate such services. Several state regulatory agencies, including
the California Public Utilities Commission, have asserted that VOIP providers are telecommunications service
Providers and that their intrastate services should be subject to state telecommunications regulation. It is possible
that VOIP will be subject to certain regulatory requirements which could impose additional costs on the provision of
VoIP services. However, as noted above,under California law,public utility districts, including the District,are not
subject to the jurisdiction of the California Public Utilities Commission.
Federal Regulation and Oversight
The Communications Act of 1934, as amended by the Telecommunications Act of 1996 (the
"Communications Act"), contains provisions which are applicable to the offering of telecommunications service,
cable television service and Internet access service.
The District's provision of multichannel video programming service will be subject to the provisions of the
Communications Act governing cable television service. These include requirements that local television stations
operating within the cable operator's community be carried on the cable system if they demand carriage (commonly
referred to as "must carry"). Alternatively, local television stations may demand compensation for allowing their
signals to be carried by cable systems (this alternative is referred to as "retransmission consent"). As a franchised
cable provider, the District would be required to comply with other requirements applicable to cable operators
including, for example, that they make available time for candidates for public office during election campaign
periods, and that they provide channels for public, educational and governmental use. Also, as a franchised cable
operator, the District will be required to pay a franchise fee to the Town of Truckee. The franchise fee has been
established at five percent(5%) of gross annual cable service revenues. The terms of the franchise are set forth in
the Cable System Franchise Agreement Between the Town of Truckee and the District executed April 17, 2003,and
approved by the Board of Supervisors of Nevada County, California on January 13, 2004, The franchise agreement
has a duration of ten years and may be renewed.
"Open Access". In a 2002 decision, the FCC determined that high speed Internet service provided by
cable operators, commonly referred to as "cable modem" service is considered an interstate Information Service as
that term is defined in the Communications Act, and that such service is neither Telecommunications Service nor
Cable Service. Based on this decision, the FCC concluded that cable modem service, such as that which the District
plans to offer over the Broadband System, is not subject either to the telecommunications carrier provisions or the
cable provisions of the Communications Act. Rather, as an information service, cable modem service is essentially
unregulated. If the service is not regulated, there would be no basis for a governmentally-imposed requirement that
cable operators offering cable modem service over their cable plant allow competing Internet service providers z
If, on the other hand, cable modem service were deemed to be
access to their high speed broadband networks.
telecommunications service, it is possible that the FCC could require cable operators to allow access to cable
operators'broadband networks by competing Internet service providers.
In October 2003, a panel of the United States Court of Appeals for the Ninth Circuit in San Francisco
reversed and remanded portions of the FCC's decision, concluding that, based on a prior precedent of that court,
cable modem service is, in part, a telecommunications service. On April I, 2004, the full court denied rehearing of
the October 2003 decision. It is not currently known whether the Supreme Court will be asked to review that
decision, whether it will agree to hear the case if asked, or whether it will affirm the court of appeals decision. It is
also not known what the FCC may do as a result of that decision. If the District were required to allow competing
Internet service providers to access its Broadband System for the purpose of offering their own high speed Internet
services, it could adversely affect the District's position as a provider of high speed Internet service and the
availability of Revenue to repay the Certificates.
20
State Prohibition of Local Government Providing Telecommunication Services .
iting "any
7n March 2004, the United States Supreme Court, in Nixon v Ml55Ourl Municinal Loa et al, held that
Section 253 of the Communications Act, which forbids any state to or hate laws whical law or hlfo bid poation i ri alhsubdivisio s
entity" to provide any telecommunications service does not apply
within the state from providing telecommunications service. Although the I}strict has no reason o believe that such
re t
a prohibition will be enactor in California,
recentnSut reme Court decision,d such ae law acould prohibit the and made applicable
from
Broadband System, p
3
providing telecommunications service over the Broadband System. The Communications Act section at issue in that
case is only applicable to state or local statutes,regulations or other legal requirements prohibiting local government
entities from providing telecommunications service. It is not applicable to the District's provision of cable service ,
or information service,including high speed Internet access.
Litigation Risks
uction
f the
There are
litigation
including, but
not relating
t t the
disputes with contractors and strict's ownership� rsuppliers,and or challengesperation oto the
BroadbandSystem, and
Such challenges may bityebrought by existing or potential to own finance and operate theBroadband
of the District,OrtOthershe rvtCebridge haces sadvised t
the District that it may challenge the LAFCO's grant o the District of a Certificate of Compliance in an appropriate
forum.
Relating to the Enforceability of the Trust Agreement,installment Purchase Agreement;
Certain Matters
Enforceability of Remedies
The enforceability of the obligations of the District and the Corporation under the Trust Agreement and
vency
convaudulent
eyance orrotlher similar laws or by equitableent may be bprina plespaffectinglthe enforccemaent of creditors' rights nization, moratorium, generally.
eThe xerciseion, respectively, w
realization of any
yerilghts emediend upon the
s spectfiedn a ulm the e District Trust Agreement and tthe Installment Purchaseill Agreement
of
ion
ich is often
ect to
exiscret
sting law, certain of tied remedies
remedies,may
quine juspecifiedo in cialthetTrust hAgreemein oru h1e insttallment1Purchaseon and eAgreemm Agreement,
a court may
specificvperformance of the be dcovenantsavailable
ontai containedmay
the Trust Agreement. Accordingly, thetTrustee'de not s ability order to
exercise its remedies under the Trust Agreement upon a default by the District could be impaired by the need for
judicial approval.
Credit Rating
No rating has been obtained on the Certificates from any securities rating agency. As a result, the
Certificates are umated and represent a high risk investment. The lack of a rating may adversely affect the presence
of a secondary market for the Certificates.
Secondary Market for the Certificates
There can be no assurance that there will be a secondary market for purchase or sale of the Certificates.
re may be no market for the Certificates depending upon prevailing market conditions,
From time to time he
ition of firms who may make the secondary market,the evaluation of
including the financial condition or market pas
the District and the financial condition and results of operations of the Broadband System.
Limited Transferability
An Owner may only transfer Certificates to "qualified buyers" as defined in Rule 144A
in
nce that a potential transferee will
to
promulgated under the Securities Act of 1934. There is no assura able
satisfy such transfer (imitations. Accordingly, purchasers of the Certificates may be required to bear thee financial
21
risk of their investment for an indefinite period of time. The Certificates may not be resold or transferred in
principal amounts of less than$100,000. See"PLACEMENT AND RESTRICTIONS ON TRANSFER"herein.
Impact of Inflation
Dramatic increases in the rate of inflation could adversely affect the operations of the Broadband System if
the companies with whom the District contracts to provide broadband services are unable to increase the rates of
charges to their customers to match such increases.
Information Not Verified
Information with regard to the Broadband System has been obtained from the District and its consultants.
Some of that information involves predictions with regard to future events, such as the expected operating expenses
and revenues of the Broadband System; such information is, by its nature, not subject to verification. Neither the
Corporation nor the Placement Agent have independently verified the information provided by the District and its
consultants regarding the Broadband System. See"FORWARD LOOKING STATEMENTS"herein.
CONSTITUTIONAL LIMITATIONS ON APPROPRIATION'S AND CHARGES
Article XIIIB
Article XIIIB of the California State Constitution limits the annual appropriations of the State and of any
district, county, school district,corporation or other political subdivision of the State to the level of appropriations of
the particular governmental entity for the prior fiscal year, as adjusted for changes in the cost of living and
Population. The "base year"for establishing such appropriation limit is the 1978/79 fiscal year and the limit is to be
adjusted annually to reflect changes in population and consumer prices. Adjustments in the appropriations limit of
an entity may also be made if(t)the financial responsibility for a service is transferred to another public entity or to
a private entity, (ii)the financial source for the provision of services is transferred from taxes to other revenues, or
(iii)the voters of the entity approve a change in the limit for a period of time not to exceed four years.
Appropriations subject to Article XIIIB generally include the proceeds of taxes levied by the State or other
entity of local government, exclusive of certain State subventions and refunds of taxes. "Proceeds of taxes"include,
but are not limited to, all tax revenues and the proceeds to an entity of government from (i)regulatory licenses, user
charges, and user fees(but only to the extent such proceeds exceed the cost of providing the service or regulation),
and (ii)the investment of tax revenues. Article XIIIB includes a requirement that if an entity's revenues in any year
exceed the amounts permitted to be spent, the excess would have to be returned by revising tax rates or fee
schedules over the subsequent two years.
The District is of the opinion that its charges for the Broadband System do not exceed the costs it
reasonably bears in providing such services and therefore are not subject to the limits of Article XIIIB. The District
has covenanted in the Installment Purchase Agreement that, to the fullest extent permitted by law, it will fix,
prescribe and collect rates and charges on the Broadband System sufficient to provide for payment of the Installment
Payments in each year. See the caption "SECURITY FOR THE CERTIFICATES—Rate Covenant."
f
Future Initiatives
Article XIIIB was adopted as a measure that qualified for the ballot pursuant to California's initiative z
process. From time to time other initiatives could be proposed and adopted affecting the District's revenues or
ability to increase revenues.
s
APPROVAL OF LEGAL PROCEEDINGS
subject to the approval of Stradling Yocca Carlson & Rauth, a Professional CoThe legality and enforceability of the Installment Purchase Agreement and certain other legal matters are rporation, acting as Special Counsel.
Certain legal matters will be passed upon for the District by Porter Simon, Professional Corporation, Truckee, t
22
4
F
California, for the Corporation by Strading Yocca Carlson &Rauth, a Professional Corporation, for the Placement
Agent by Greenberg Traurig,LLP and for the Trustee by its counsel.
LITIGATION $
uity, before or
y any court,
Therenoubli�boardtobod proceeding,edininquiry
or to the knowledge of the District,or investigation, at law or in gthreatened against the District
y g gor
regulatory agency,P f.
affecting the existence of the District or the titles of its board members or officers to their respective proceeds thereof
h ices in
the
seeking accordance oretain or Trust nAoin greement,eororin delivery
ny way contesting ortaffecting he ipplicvalidity oion of lreenforceabihtyrof the
Certificates,the Trust Agreement, the Installment Purchase Agreement, or any action of the District have
contemplated
by any of said documents, or contesting or affecting the collection of Revenues, al which would have a material
ay the
lity
o P
adverse effect contesting the�ompleStROene st Payments,or in any way
or a cur cy of thtem is Privaatr the e Placemen Mtemorandum orl any namendment or Supplement F
Distrin Of the
ct orcontesting
ons sicontemplated by anyeof rs o d dothe Dnments, nor to the knowledge of the District, is there any basiistrict or its Corporation with respect to the Certificates or any s
otherefor.
See also"CERTIFICATE HOLDERS' RISKS—Litigation Regarding the District and he Broadband System".
TAX EXEMPTION
In the opinion of Srradling Yocca Carlson & Rauth, a Professional Corporation Newport Beach,
ings
Calif lrnia. Special Payment ounsel' undenexisting excluded fromregul statutagross income forfordfederala ncome tax purposesons, the on of each
and is not
Insta
t d on individuals and
ng
he federal
corporations.an item of taxpInf the further opinion oof Special t al
l Counsel, the portion of eachU nstallm ntsPaymentt constituting
income tax. Special Counsel notes that, with
to
interest
x the porton o
plf etach I stallm nit Payment of Caa tconstti constituting interest may be included as an adjustment it nthe
orporations
corporax liability of such
tions.f mum
intaddition,the differencetaxabetweennthe\issue price off a Certificate(the first price at h which a substantial
to
and
ramount of the espect to a Certificate ate constitutesturity is original isue discount eandthe)amount ofthe aorginalted cssue dition scount that rice at taccrues lto
r for
not
the owner of the excluded
purposes ofhherfederal alternatoss income of ive minimumftax rimpoedeon nd tax ividualssand
an item of tax p
corporations, and is exempt from State of California personal income tax.
Special Counsel's opinion as to the exclusion from gross income of the portion of each Installment Payment
constituting interest (and original issue discount) is based upon certain representations of fact and certifications
made by the District and others and is subject to the condition ahatt m st behe District
co lies wit ttall quiremnts of and
the
Internal Revenue Code of 1986, as amended (the "Code"),
delivery sue discount)will Certificates
become includable in n grross income for portion of each nfede menal in ome t xt purposes1 Failure to interest comply with
such requirements the Code might cause the portion of each Installment Payment constituting interest (and
ne tax purposes retroactive to
eOriginal issue discount) toxecution and delivery of theeCertifidcattes. The District has covenanted totco ply with all such requirement s date of
Special Counsel's opinions may be affected by actions taken (or not taken) or events occurring (or no
occurring)after the date hereof. Special Counsel has not undertaken to determine,or to inform any person,whether
are taken or do ur. The Indenture
nd the Tax Certificate
rmit
ain
ons to be
.my enuoh actions or eventsto be omitted if a favorable opinion 'incof Special Counsels prov died with respect theretortSpecial Counseal
l
to (and original issue
er
expresses no oposesn as with to
esheet to anyn ire
Cert ficate if any such actgross income of ion isttaken or omitted based upon theoadvice of
income tax purposes p y hat the
counsel
of ter than Stn InstallmentidltPayments constng Yocca �unng interest(and original issued discount)s excluded from ered an tgro s nion income
P
for Code federal
ownership of hoCertpfieates andathe accrual or roece pt of interest rest (and origly with itnal issueain r discount) wents of ith
th
respectthe to the Certificates may otherwise affect the tax liability of certain persons. Special Counsel expresses no
23
opinion regarding any such tax consequences. Accordingly, before purchasing any of the Certificates, all potential
Purchasers should consult their tax advisors with respect to collateral tax consequences with respect to the
Certificates.
CONTINUING DISCLOSURE
The District has covenanted in a Continuing Disclosure Certificate for the benefit of the holders and
beneficial owners of the Certificates to provide certain financial information and operating data relating to the
Broadband System of the District by 270 days following the end of the District's Fiscal Year (currently its Fiscal
Year ends on December 31) (the "Annual Report"), commencing with the report for Fiscal Year ending December
31, 2004, and to provide notices of the occurrence of certain enumerated events, if material. The Annual Report and
the notices of material events will be filed by the District(or a dissemination agent that has entered into a contract
with the District to file such information) with each Repository identified in the Continuing Disclosure Certificate.
The specific nature of the information to be contained in the Annual Report and the notice of material events is set
forth in Appendix E—"FORM OF CONTINUING DISCLOSURE CERTIFICATE"hereto. These covenants have
been made in order to assist the Placement Agent in complying with Rule 15c2-12(b)(5) promulgated under the
Securities Exchange Act of 1934. The District has not previously defaulted under any other continuing disclosure
undertaking.
FORWARD LOOKING STATEMENTS
The statements contained in this Placement Memorandum, and in any other information provided by the
District, that are not purely historical, are forward-looking statements, including statements regarding the District's
expectations, intentions, or strategies regarding the future. Readers should not place undue reliance on forward-
looking statements. All forward looking statements included in this Placement Memorandum are based on
information available to the District on the date hereof, and the District assumes no obligation to update any such
forward-looking statements. It is important to note that the District's actual results could differ materially from those
in such forward-looking statements.
The forward-looking statements herein are necessarily based on various assumptions and estimates and are
inherently subject to numerous risks and uncertainties, including risks and uncertainties relating to the possible
invalidity of the underlying assumptions and esti
business, industry, market, legal and regulatory mates and possible changes or developments in social, economic,taken by third parties, including customers circumstances and conditions and actions taken or omitted to be
governmental authorities and officials. A , suppliers, and competitors, and legislative, judicial and other
among other things,future economi ssumptions related to the foregoing involve judgments with respect to
c, competitive,and market conditions and future business decisions, all of which
are difficult or impossible to predict accurately and many of which are beyond the control of the District. Any of
such assumptions could be inaccurate and, therefore, there can be no assurance that the forward-looking statements
included in this Placement Memorandum are accurate.
NO RATING
No application for a rating has been made to any rating agency, nor is there any reason to believe that the s
District would have been successful in obtaining an investment grade rating for the Certificates had application been
made.
w
PLACEMENT AND RESTRICTION ON TRANSFER
The Bond Placement Agreement for the Certificates provides that RiviereJenison Securities, Ltd. (the i
"Placement Agent")will act as placement agent to facilitate the sale of the Certificates to eligible purchasers. To be
eligible to purchase Certificates, a prospective purchaser must qualify as "qualified institutional buyers" as defined
in Rule 144A promulgated under the Securities Act. Each purchaser or transferee of the Certificates must represent
that such purchaser or transferee is a QIB at the time of acquisition of the Certificates.
3
t
24
4
i
The Certificates are being offered on behalf of the District by the Placement Agent on a best effort, all or
, to eligible purchasers. ]n consideration for its services as the Placement Agent, the Placement Agent
none basis #
will receive a fee equal to$
VE
LITY
THE FOR PROSPECTIVE STANDARDS
V DTORS. EACH PROSOPEC REPRESENT
lNVESTORINTOGETH R WITH IMUM ITS
STANDARDS
INVESTMENT, TAX, LEGAL, ACCOUNTING AND OTHER ADVISORS, SHOULD DETERMINE
WHETHER THIS INVESTMENT IS APPROPRIATE FOR SUCH INVESTOR
laws of
cable
ies Act
f 1933 or any
The and may be transferred notunle registered reg stered under under the allapplicable laws or unless anexemption from
jurisdictions Y
such laws is available. Neither the Distr ct nor any other person has any plans, . is unaer any rre tl on,to register S
the Certificates under the Securities Act of 1933 or any other applicable laws. No market currently exists for the
F
Certificates and none is expected to develop. The Certificates may not be sold or transferred by a purchaser thereof
in principal amounts of less than$100,000.
DIISCELLANEOUS
statements made in this Private Placement Memorandum involve matters of opinion or of
Insofar as anyet forth as
es rams wheth
ion is mor ntade ohaepresy ated, they aretxanyslof such sta ements No
smade will beclrealized, Nether thisatPriva of Placement
P
Memorandum nor any statement which may have been made verbally or in writing is to be construed as a contract
with the Owners of the Certificates.
The execution and delivery of this Private Placement Memorandum have been duly authorized by the
District.
TRUCKEE DONNER PUBLIC L'-TILITY DISTRICT
By. President
25
APPENDIX A
DEFINITIONS AND SUM;AIARY OF CERTAIN PROVISIONS
OF THE INSTALLMENT PURCHASE AGREEMENT
The following is a summary of certain provisions of the Installment Purchase Agreement. This summary
does not purport to be comprehensive and reference should be made to the respective agreement for a full and
complete statement of the provisions thereof.
Definitions. Unless the context otherwise requires, capitalized terms used under this will have the
meanings defined below. Unless the context otherwise requires, all capitalized terms used below and not defined
below will have the meanings ascribed thereto in the Installment Purchase Agreement and the Trust Agreement,
Accountant's Report means a report signed by an Independent Certified Public Accountant.
Acquisition Fund means the fund by that name established pursuant to the Installment Purchase Agreement.
Agreement means the Installment Purchase Agreement, by and between the District and the Corporation,
dated as of October 1, 2004, as originally executed and as it may from time to time be amended or supplemented in
accordance therewith.
Bonds means all bonds, notes or similar obligations (but not including Contracts) of the District, the
principal of and interest on which are payable from Net Revenues on a parity with the Installment Payments,
Broadband Service means the services made available or provided by the Broadband System.
Broadband System means all properties and assets, real and personal, tangible and intangible, of the
District's broadband utility now or hereafter existing, used or pertaining to providing broadband services(including
but not limited to data, voice, video and security services), including all additions, extensions, expansions,
improvements and betterments thereto;rKoYlided, however, that to the extent the District is not the sole owner of an
asset or property or to the extent that an asset or property is used in part for the above described purposes, only the
District's broadband utility ownership interest in such asset or property or only the part of the asset or property so
used for broadband purposes will be considered to be part of the Broadband System.
Business Dav means a day other than: a Saturday or Sunday or a day on which (i)banks located in the city
in which the principal corporate trust office of the Trustee is located are not required or authorized to remain closed,
and(ii)on which The New York Stock Exchange is not closed.
Certificates means the Truckee Donner Public Utility District Revenue Certificates of Participati
Agreement. on,
Series 2004, executed and delivered on behalf of the District and at any time Outstanding pursuant to the Trust
Contracts means the Installment Purchase Agreement and all contracts of the District the Parity Installment
Payments under which are payable from Net Revenues on a parity with the obligations of the District to make y
Payments under the Installment Purchase Agreement, excluding contracts entered into for operation and
maintenance of the Public Utility System. �
Corporation means the Truckee Donner Public Utility District Financing Corporation, a nonprofit public
benefit corporation duly organized and existing under and by virtue of the laws of the State of California.
e
Date of Operation means, with respect to any uncompleted component Parity Project, the estimated date by
which such uncompleted component Parity Project will have been completed and,in the opinion of an engineer,will
be ready for operation by or on behalf of the District.
i
3
A-1
f
{
i
Debt service means, as this only related to the Certificates or Bonds and Contracts payable from Net
Revenues of the Broadband System for any Fiscal Year, the sum of: (1}the interest on all outstanding Bonds,
payable during such Fiscal Year (except to the extent that such interest is capitalized); (2)that portion of the
principal amounts of all outstanding serial Bonds maturing in such Fiscal Year; (3)that portion of the principal s
amounts of all outstanding term Bonds required to be prepaid or paid in such Fiscal Year; and(4)that portion of the
Parity Installment Payments required to be made during such Fiscal Year(except to the extent the interest evidenced
and represented thereby is capitalized);provided that, as to any such Bonds or Parity Installment Payments bearing
i
or comprising interest at other than a fixed rate, the rate of interest used to calculate Debt Service will, for all
purposes, be assumed to bear interest at a fixed rate equal to the higher of (i)the actual rate on the date of
calculation,or if the Bonds or Parity Installment Payments are not yet outstanding,the initial rate(if established and
binding), (it)if the Bonds or Parity Installment Payments have been outstanding for at Least twelve months, the
)( )
ly preceding the date of calculation, and e 1 if interest on the
average rate over the twelve months immediatele from gross income under the applicable provisions of the Code,
Bonds or Parity Installment Payments is excludab
the most recently published Bond Buyer 25 Bond Revenue Index (or comparable index if no longer published)plus
fifty (50) basis points, or (2)if interest is not so excludable, the interest rate on direct United States Treasury
obligations with comparable maturities plus fifty(50)basis points;
and provided further that if any series or issue of such Bonds or Parity Installment Payments have
twenty-five percent (25%) or more of the aggregate principal amount of such series or issue due in any one year,
Debt Service will be determined for the Fiscal Year of determination as if the principal of and interest on such series
or issue of such Bonds or Parity Installment Payments were being
paid
he from
dat the
cat elation date of currence thereof in
substantially equal annual amounts over a period of thirty(30)years
and provided further that, as to any such Bonds or Parity Installment Payments or portions thereof bearing
no interest but which are sold at a discount and which discount accretes with respect to such Bonds or Parity
Installment Payments or portions thereof, such accreted discount will be treated as interest in the calculation of Debt
Service;
and provided further that the amount on deposit in a debt service reserve fund on any date of calculation of
Debt Service will be deducted from the amount of principal due at the final maturity of the Bonds and Contracts for
which such debt service reserve fund was established and in each preceding year until such amount is exhausted;
and provided further that Debt Service will be reduced by an amount equal to earnings on any reserve fund
(including the Reserve Fund) transferred to the corresponding debt service fund(including the Interest Fund created
under the Trust Agreement).
District means Truckee Donner Public Utility District, a public utility district, duly organized and existing
under and by virtue of the laws of the State of California,including the Law.
Event of Default means an event described in the Installment Purchase Agreement.
Fiscal Year means the period beginning on January I of each year and ending on the last day of December
of the next succeeding year, or any other twelve-month period selected and designated as the official Fiscal Year of
the District.
Inde endent Certified Public Accountant means any firm of certified public accountants appointed by the
District, each of whom rt independent of the District and the Corporation pursuant to the Statement on Auditing
Standards No. I of the American Institute of Certified Public Accountants.
Independent Financial Consultant means a financial consultant or firm of such consultants appointed by the
District,and who,or each of whom: (1)is in fact independent and not under domination of the District;(2)does not
ct, with the District; and (3)is not connected with the District as an
have any substantial interest, direct or indire
officer or employee thereof,but who may be regularly retained to make reports thereto.
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Installment Payment Date means the fifth day prior to each Interest Payment Date, or if said date is not a
Business Day, then the preceding Business Day. The term "Parity Installment Payment Date"means each date on
which Parity Installment Payments are scheduled to be paid by the District under and pursuant to any Contract.
Installment Pa meats means the Installment Payments of interest and principal scheduled to be paid by the
District under and pursuant to the Installment Purchase Agreement. The term "Parity Installment Payments"means
the payments of interest and principal scheduled to be paid by the District under and pursuant to the Contracts.
Interest Payment Date means each May I and November I of each year,commencing March 1,2005.
Law means the Public Utility District Act of the State of California (being Division 7 of the Public Utilities
Code of the State of California, as amended)and all laws amendatory thereof or supplemental thereto.
Manager means the General Manager of the District, or any other person designated by the General
Manager to act on behalf of the General Manager.
Net Proceeds means, when used with respect to any casualty insurance or condemnation award, the
proceeds from such insurance or condemnation award remaining after payment of all expenses(including attorneys
fees)incurred in the collection of such proceeds.
Net Revenues means, for any Fiscal Year, the Revenues for such Fiscal Year less the Operation and
Maintenance Costs for such Fiscal Year.
Operation and Maintenance Costs means (1) costs spent or incurred for maintenance and operation of the
Broadband System calculated in accordance with generally accepted accounting principles, including (among other
things) the expenses of management and repair and other expenses necessary to maintain and preserve the
Broadband System in good repair and working order, and including administrative costs of the District, salaries and
wages of employees, payments to any public employees retirement plan, overhead, insurance, taxes District,
(if any), fees of
auditors, accountants, attorneys or engineers and insurance premiums, (2) all other reasonable and necessary costs
of the District or charges (other than Debt Service) required to be paid he
11 it to comply with the terms of t
Installment Purchase Agreement or any other Contract or of any resolution or indenture authorizing the issuance he
of
any Bonds or of such Bonds, and any franchise fees payable by the District with respect to the Broadband System reements between the District's broadband
and(3)all costs paid by the District under the Service Agreement, dated pect between the District and
Eagle Broadband, Inc., and in all cases relating to allocations and/or ag
2004,
utility and other utilities of the District to pay costs similar to the those described in this definition but excluding in
all cases(a)depreciation, replacement and obsolescence charges or reserves therefor, (b)amortization of intangibles
or other bookkeeping entries of a similar nature, (c)costs of capital additions,replacements, betterments,extensions
or improvements to the Broadband System which under generally accepted accounting principles are chargeable to a
capital account or to a reserve for depreciation,and(d)charges for the payment of Bonds or Contracts.
Project means the equipment and facilities of the Broadband System described in the Installment Purchase
Agreement. The tern "Parity Project"means any additions, betterments, extensions or improvements designated by
the Board of Directors of the District as a Parity Project, the acquisition and construction of which is to be paid for
with the proceeds of any Contracts or Bonds.
Purchase Price means the principal amount plus interest thereon owed by the District to the Corporation
under the terms of the Installment Purchase Agreement.
Reserve Requirement means, initially $ and thereafter will be equal to the lesser of such
amount and maximum annual Installment Payments in the current or any future Fiscal Year.
Revenue Fund means all revenue accounts relating to the Broadband System maintained by the District as
of the date of the Installment Purchase Agreement, together with any revenue account created after the date of the
Installment Purchase Agreement and designated by the Treasurer of the District as a part of the Revenue Fund. =
A-3
l
Revenues means all income, rents, rates, fees, charges and other moneys derived from the ownership or
operation or sale of the Broadband System, including, without Limiting the generality of the foregoing, (I)all S.
income rents, rates, fees, charges or other moneys derived from providing broadband services (including, but not
limited to data, voice, video and security services), and commodities es sold, furnished or supplied through the
ocable to the Broadband System,Ph
facilities
a assess of to Broadband
oadanyban imposw,taxes
Svstertionl of which is permitted by law,and(3)the earningsexcept son and income deri set forth in(z) ved from 1
tor he investment of the amounts described in clauses (1) and (2) above and the general unrestricted funds of the
osits
District,
become the ding my all
se (y)customers'
me(z)dreserves, surcharges,osits or any other dtaxes or ss ssments spect to ecifically pledged l such to
the payment of debt service with respect to notes,bonds or other obligations of he District and which reserves,taxes
or assessment are not available for any other purpose of the District.
Trust Agreement means the Trust Agreement, dated as of November 1, 2004, by and between the District,
the Corporation and the Trustee, relating to the Certificates, as originally executed and as it may from time to time r
be amended or supplemented in accordance with its terms. r
Trustee means BNY Western Trust Company, acting in its capacity as Trustee under and pursuant to the
Trust Agreement, and its successors and assigns.
Written Consent of the Co oration or District, Written Order of the Co oration or District, Written
Re uest of the Co oration or District, and Written Re uisition of the Co the tCo oran or al o by is President oristrict mean, eVice
written consent, order, request or requisition signed by or on behalf card
to
President Representative or(ii) the District by the President of its Board of Directors or its General Manager or by
the Secretary of (whether or
the District) hotaree Board
specifically authoctors rized by resolur by any two tion ofsthe District to not
ign or execute such
behalf. docrd ument on rectors is
behalf.
SALE AND PURCHASE OF THE PROJECT
Purchase and Sale of the PYOjcct. In consideration for the Installment Payments as set forth in the
isti
Corporation,statementPurchase
the are project t the purchase Coprirporation
specifiedill il purchase from the
n the lnl to stallmenttPurchase A and the greement ntict land otherwise n the
manner and in accordance with the provisions of the Installment Purchase Agreement.
Title. All right, title and interest in each component of the Project will vest in the District immediately
upon execution and delivery of the Installment Purchase Agreement.
C
Acquisition and onstruction of the Pry. The Corporation will cause the Project, and any additions or
acquire, or installed by the District as its agent, and the District will enter
modifications thereto to be constructed,
the�Projectts and The D provide
trict willacause agent
the constructionorporat, acquisitionn,the pand installationnof het Projectn or be installation
Trustee pursuant to the Trust Agreement,upon satisfactory completion
performed after the deposit of funds with the of
of delays beyond thedreasonablece with CEQA �Control of the Disstriind ctonlylexcepted.by the Board
it is expressly runderst000ds nd agr ed thProject
at the
Corporation uner no liability of any nd or
ever for the payment of any
and that all suichbcostsdand expensest character
will bepaid by the District's Broadband system, regardlesssof wthetherr the
funds deposited in the Acquisition Fund are sufficient to cover all such costs and expenses.
Chan es to the Project. The District may substitute other improvements for those listed as components of
t only
he
the Troe Project statement Installment the nut (a)idePurchase ntifying e theumprovements to District
e deleted and the improvements to rporation and
such deleted improvements; and (b) stating that the estimated costs of constTocti on, acquisition and installation of
n such costs for the improvements previously planned
the substituted improvements are not less tha
A-4
Acquisition Fund. There is established with the District the Acquisition Fund. The moneys in the
Acquisition Fund will be held by the District in trust and will be applied to the payment of the costs of acquisition,
installation, development and construction of the Project (including reimbursement of related start-up costs
Previously advanced by the District), and of expenses incidental thereto, including Delivery Costs. Before any
payment is made from the Acquisition Fund by the Treasurer of the District, the Manager will cause to be filed with
the Treasurer of the District a Written Requisition of the District i
Agreement, n the form set forth in the Installment Purchase
Upon receipt of each such Written Requisition,the Treasurer of the District will pay the amount set forth in
such Written Requisition as directed by the terms thereof. The Treasurer of the District need not make any such
payment if it has received notice of any lien, right to lien or attachment upon, or claim affecting the right to receive
payment of, any of the moneys to be so paid, which has not been released or will not be released simultaneously
with such payment.
When the Project will have been constructed, installed, developed or acquired in accordance with the
Installment Purchase Agreement,a statement of the District stating the fact and date of such acquisition, installation,
development, construction and acceptance and stating that all of such costs of acquisition and incidental expenses
have been determined and paid(or that all of such costs and expenses have been paid less specified claims which are
subject to dispute and for which a retention in the Acquisition Fund is to be maintained in the full amount of such
claims until such dispute is resolved), will be delivered to the Treasurer of the District and the Trustee by the
District. Upon the receipt of such statement, the Treasurer of the District will transfer any remaining balance in the
Acquisition Fund not needed for Acquisition Fund purposes (but less the amount of any such retention which
amount will be certified to the Treasurer of the District by the District) to the Trustee which will transfer such
amounts first to the Reserve Fund until the amount therein equals the Reserve Requirement, and thereafter to the
Certificate Payment Fund for prepayment of Certificates in accordance with the Trust Agreement,
Installment Payments. The District will, subject to any rights of prepayment provided in the Installment
Purchase Agreement,pay the Corporation the Purchase Price in installment payments of interest and principal in the
amounts and on the Installment Payment Dates as set forth in the Installment Purchase Agreement.
Each Installment Payment will be paid to the Corporation in lawful money of the United States of America.
In the event the District fails to make any of the payments required to be made by it under the Installment Purchase
Agreement, such payment will continue as an obligation of the District until such amount will have been fully paid;
and the District will pay the same with interest accruing thereon at the rate or rates of interest then applicable to the
remaining unpaid principal balance of the Installment Payments if paid in accordance with their terms.
The obligation of the District to make the Installment Payments from Reserves is absolute and
unconditional, and until such time as the Purchase Price will have been paid in full (or provision for the payment
thereof will have been made pursuant to the installment Purchase Agreement), the District will not discontinue or
suspend any Installment Payments required to be made by it under the Installment Purchase Agreement when due,
whether or not the Broadband System or any part thereof is operating or operable, or its use is suspended, interfered
with,reduced or curtailed or terminated in whole or in part, and whether or not the Project has been completed, and
such payments will not be subject to reduction whether by offset or otherwise and will not be conditional upon the
Performance or nonperformance by any party of any agreement for any cause whatsoever.
SECURITY
r
Pledge of Revenues. All Revenues and all amounts on deposit in the Revenue Fund are irrevocably
pledged to the payment of the Installment Payments as provided in the Installment Purchase Agreement and the
Revenues will not be used for any other purpose while any of the Installment Payments remain unpaid;provided that
out of the Revenues there may be apportioned such sums for such purposes as are expressly u
Installment Purchase Agreement. The pledge, itted in the
together with the pledge created by all other Contracts and Bonds,
will constitute a lien on Revenues and, subject to application of Revenues and all amounts on deposit therein as
permitted in the Installment Purchase Agreement, the Revenue Fund. OTHER THAN REVENUES, NO OTHER
DISTRICT MONEYS ARE PLEDGED TO THE PAYMENT OF THE INSTALLMENT PAYMENTS. THE
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r
e
i
REVENUES AND IS
DISTRICT
I MONEY
G INSTALLMENT ENT PAYMENTS H
FROM ANY OTHER STRICT FUNDS OR OS.
FROM PAYING AD PROHIBITED
THE CERTIFICATES ARE NOT SECURED BY ANY LIENS ON PROJECT ASSETS.
Allocation of Revenues. In order to carry out and effectuate the pledge and lien contained in the
f
Installment Purchase Agreement, the District has agreed and covenanted that all Revenues will be received by the
District in trust under the Installment Purchase Agreement and will be depositd when and as received in a special
fund designated as the "Revenue Fund," which fund includes the accounts described in the definition thereof and
which fund the District has agreed and covenanted to maintain and to hold separate and apart from other Ends so
long as any Contracts or Bonds remain unpaid. Moneys in the Revenue Fund will be used and applied by the
District as provided in the Installment Purchase Agreement. x
from the moneys in the Revenue Fund, pay all Operation and Maintenance Costs
The District will,
(including amounts reasonably required to be set aside in contingency reserves for Operation and Maintenance
Costs, the payment of which is not then immediately required) as such Operation and Maintenance Costs become
due and payable. All remaining moneys in the Revenue Fund thereafter will be set aside by the District at the
following times for the transfer to the following respective special fun in the following order of priority; and all
moneys in each of such funds will be held in trust and will be applied,used and withdrawn only for the purposes set
forth in the Installment Purchase Agreement.
(a) Installment tints, Not later than each Installment Payment Date, the District will, from the
o the Trustee the Installment Payment due and payable on that Installment
moneys in the Revenue Fund, transfer tct
depost Payment he Date. The ectiDvtetpayment fund,f without prefe reference oront the moneys in r priority,priority, and evenue Fund,
n he event of any applicable
insufficiency of such
moneys ratably without any discrimination or preference, any other Debt Service in accordance with the provisions
of any Bond or Contract.
(b) Reserve Funds. On or before each Installment Payment Date the District will, from the remaining
nd in the event of any
moneys in thethout
eference or priority
moneys ratably ency of such
with without any discriminationtor preference,transfer to theaTrustee for depo it n the Resetrve Fund and
unts, if any, as
to the connection cable trustee for
or Contracts other
other sery n the Installment Purs and/or chase Agreement, that sum,ay have been
any,established
ecessary to
pro restore he Reserve the Reserve Fund by means other thd to an amount equal to nhcash and Permitted investments pu su nt to the Trust e Reserve Requirement; provided, however, that theDAgreemmct y
ose
(c) Surplus. Moneys on deposit in the Revenue Fund on each Installment Payment Date not
necessary to make any of the payments required above may be expended by the District at any time for any p rp
permitted by law.
Investments. All moneys held by the District in the Revenue Fund and the Acquisition Fund will be
invested in Permitted Investments and the investment earnings thereon will remain on deposit in such End, except
as otherwise provided in the Installment Purchase Agreement.
Additional Contracts and Bonds. The District may at any time execute any Contract or issue any Bonds,as
the case may be,in accordance with the Installment Purchase Agreement;provided:
The Net Revenues for the most recent audited Fiscal Year preceding the date of adoption by the
Board ofaDirectors of the District of the resolution authorizing the issuance of such Bonds or the date of the
th
as evidenced
sxeciatloeportsprepared bytansIndependent the case aCertified Public Acd by the District and a
co ntantaor an Independ ntcculation tFinan ial Consultant on
P e produced a sum equal to at least one bun
such calculation on file with the District,will hav dred twenty-five percent
(125%)of the Debt Service for such Fiscal Year;and
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(b) The Net Revenues for the most recent audited Fiscal Year preceding the date of the execution of
such Contract or the date of adoption by the Board of Directors of the District of the resolution authorizing the
issuance of such Bonds, as the case may be, including adjustments to give effect as of the first day of such Fiscal
Year to increases or decreases in rates and charges for the Broadband Service approved and in effect as of the date
of calculation, as evidenced by both a calculation prepared by the District and a special report prepared by an
Independent Certified Public Accountant or an Independent Financial Consultant on such calculation on file with the
District, will have produced a sum equal to at least one hundred twenty-five percent(125%) of the Debt Service for
such Fiscal Year plus the Debt Service which would have accrued on any Contracts executed or Bonds issued since
the end of such Fiscal Year assuming such Contracts had been executed or Bonds had been issued at the beginning
of such Fiscal Year plus the Debt Service which would have accrued had such Contract been executed or Bonds
been issued at the beginning of such Fiscal Year; and
(c) The estimated Net Revenues for the then current Fiscal Year and for each Fiscal Year thereafter to
and including the first complete Fiscal Year after the latest Date of Operation of any uncompleted Parity Project to
be financed from proceeds of such Contracts or Bonds, as evidenced by a certificate of the General Manager of the
District on file with the District, including (after giving effect to the completion of all such uncompleted Parity
Projects) an allowance for estimated Net Revenues for each of such Fiscal Years arising from any increase in the
income,rents, fees, rates and charges estimated to be fixed,prescribed or received for Broadband Service and which
are economically feasible and reasonably considered necessary based on projected operations for such period, as
evidenced by a certificate of the Manager on file with the District, will produce a sum equal to at least one hundred
twenty-five percent(125%) of the estimated Debt Service for each of such Fiscal Years, after giving effect to the
execution of all Contracts and the issuance of all Bonds estimated to be required to be executed or issued to pay the
costs of completing all uncompleted Parity Projects within such Fiscal Years, assuming that all such Contracts and
Bonds have maturities, interest rates and proportionate principal repayment provisions similar to the Contract last
executed or then being executed or the Bonds last issued or then being issued for the purpose of acquiring and
constructing any of such uncompleted Parity Projects.
(d) The Installment Purchase Agreement notwithstanding, Bonds or Contracts may be issued or
incurred to refund outstanding Bonds or Contracts if, after giving effect to the application of the proceeds thereof,
total Debt Service will not be increased in any Fiscal Year in which Bonds or Contracts (outstanding on the date of
issuance or incurrence of such refunding Bonds or Contracts, but excluding such refunding Bonds or Contracts)not
being refunded are outstanding.
(e) Nothing in the Installment Purchase Agreement precludes the District from issuing any bonds or
installment purchase contracts the payments under which are subordinate to any Bonds or Contracts of the District.
COVENANTS OF THE DISTRICT
Com liance with Installment Purchase A reement and Ancilla A reements. The District will punctually
pay the Installment Payments in strict conformity with the terms of the Installment The
Agreement, and will
faithfully observe and perform all the agreements, conditions, covenants and terms contained therein required to be
observed and performed by it, and will not terminate the Installment Purchase Agreement for any cause including,
without limiting the generality of the foregoing, any acts or circumstances that may constitute failure of
consideration, destruction of or damage to the Broadband System, commercial frustration of purpose, any change in
the tax or other laws of the United States of America or of the State of California or any political subdivision of
either or any failure of the Corporation to observe or perform any agreement, condition, covenant or term contained
therein required to be observed and performed by it, whether express or implied, or any duty, liability or obligation
arising out of or connected therewith or the insolvency, or deemed insolvency, or bankruptcy or liquidation of the
Corporation or any force majeure, including acts of God, tempest, storm, earthquake, war, rebellion, riot, civil
31
disorder, acts of public enemies, blockade or embargo, strikes, industrial disputes, lock outs, lack of transportation
facilities,fire,explosion,or acts or regulations of governmental authorities.
t
It has been expressly understood and agreed by and among the parties to the Instal
t Purchae
Agreement that, subject to the Installment Purchase Agreement, each of the agreements, conditions lmen s
, covenan
terms contained in the Installment Purchase Agreement is an essential and material term of the p and
urchase ts and
is
payment for the Project and by the District pursuant to, and in accordance with, and as authorized under the Law.
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The District will faithfully observe and perform all the agreements, conditions, covenants and terms
required to be observed and performed by it pu suant to all outstanding Contracts and Bonds as such may from time
to time be executed or issued,as the case may be. 4
A ainst Encumbrances. The District will not make any pledge of or place any lien on Revenues or the
moneys in the Revenue Fund except as permitted by the Installment Purchase Agreement. The District may at any
time, or from time to time,issue Contracts and Bonds as permitted in the Inst allment Purchase Agreement,w may
other obligations, provided that such pledge
issue or incur evidences of indebtedness or incur and lien will be
subordinate in all respects to the pledge of and lien thereon provided in the Installment Purchase Agreement.
Aeainst Sale or Other i
Disnositon of Property. The District will not enter into any agreement or lease
em or any part thereof necessary to secure a
which impairs the operation of the Broadband Syst dequate Net
Revenues for the payment of the Installment Payments, or which would otherwise impair the rights of the
Corporation under the Installment Purchase Agreement or the operation of the Broadband System. Any real or
personal property which has become nonoperative or which is not needed for the efficient and proper operation of
the Broadband System,or any material or equipment which has become wom out, may be sold if such sale will not
Payments and if the proceeds of such sale are deposited in the
impair the ability of the District to pay the Installment g
Revenue Fund.
Nothing in the Installment Purchase Agreement restricts the ability of the District to sell any portion of the
Broadband System if such portion is immediately repurchased by the District and if such arrangement cannot by its
terms result in the purchaser of such portion of the Broadband System exercising any remedy which would deprive
the District of or otherwise interfere with its right to own and operate such portion of the Broadband System.
A ainst Corn etitive Faci}ities . To die extent permitted by existing law, the District will not acquire,
of the District any broadband system competitive with the
construct, maintain or operate within the boundaries
Broadband System.
Installment Purchase Agreement, absent
Tax Covenants. Notwithstanding any other provision of the
opinion of Special Counsel that the exclusion from gross income of interest with respect to the Certificates will not
ct and
n will
ly with all
be adversely affected for federal income tax purposes,reserve sDuchnexclu on from grossoincome and pspecifically
applicable requirements of the Code necessary P
covenants,without limiting the generality of the foregoing,as follows:
(a) Private Activity. The District and the Corporation will not take or omit to take any action or make
any use of the proceeds of the Certificates or of any other moneys or property which would cause the Certificates to
be"private activity bonds"within the meaning of Section 141 of the Code.
(b) Arbitra e. The District and the Corporation will make no use of the proceeds of the Certificates or
of any other amounts or property,regardless of the source, or take or omit to take any action which would cause the
Certificates to be"arbitrage bonds"within the meaning of Section 148 of the Code.
(c) Federal�ee. The District and the Corporation will make no use of the proceeds of the
Certificates or take or omit to take any action that would cause the Certificates to be "federally guaranteed" within
the meaning of Section 149(b)of the Code.
(d) Information Reporting. The District and the Corporat on will take or cause to taken all
ly with the informational reporting requirements of Section 149(e)of the C
necessary action to comp ode.
ith the
(e) Miscellaneous. The District and the Corporation will take no action inrt fica consistent With the
Installment Purchase Agreement.
any Tax Certificate executed with respect to the Certificates and will comply
covenants and requirements stated therein and incorporated by reference in the
expectations stated in
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The covenants set forth in the Installment Purchase Agreement will not be applicable to, and nothing
contained therein will be deemed to prevent the District and the Corporation from issuing Certificates, the interest
with respect to which has been determined by Special Counsel to be subject to federal income taxation.
Maintenance and O
Broadband System in g eration of the Broadband S stem. The District will maintain and preserve the
ood repair and working order at all times and will operate the Broadband System in an
efficient and economical manner and will pay all Operation and Maintenance Costs as they become due and
payable.
Payment of Claim. The District will pay and discharge any and all lawful claims for labor, materials or
supplies which, if unpaid, might become a lien on the Revenues or the funds or accounts created under the
Installment Purchase Agreement or on any funds in the hands of the District or the Trustee pledged to pay the
Installment Payments or to the Owners prior or superior to the lien of the Installment Payments or which might
impair the security of the Installment Payments, but the District will not be required to pay such claims if the
validity thereof will be contested in good faith.
Compliance with Contracts. The District will neither take nor omit to take any action under any contract if
the effect of such act or failure to act would in any manner impair or adversely affect the ability of the District to pay
Installment Payments; and the District will comply with, keep, observe and perform all agreements, conditions,
covenants and terms, express or implied, required to be performed by it contained in all other contracts affecting or
involving the Broadband System, to the extent that the District is a party thereto, including but not limited to the
Agreement.
Insurance.
(a) The District will procure and maintain or cause to be procured and maintained insurance on the
Broadband System with responsible insurers in such amounts and against such risks (including damage to or
destruction of the Broadband System) as are usually covered in connection with facilities similar to the Broadband
System so long as such insurance is available from reputable insurance companies.
In the event of any damage to or destruction of the Broadband System caused by the perils covered by such
insurance, the Net Proceeds thereof will be applied to the reconstruction, repair or replacement of the damaged or
destroyed portion of the Broadband System. The District will begin such reconstruction, repair or replacement
promptly after such damage or destruction will occur, and will continue and properly complete such reconstruction,
repair or replacement as expeditiously as possible, and will pay out of such Net Proceeds all costs and expenses in
connection with such reconstruction, repair or replacement so that the same will be completed and the Broadband
System will be free and clear of all claims and liens.
If such Net Proceeds exceed the costs of such reconstruction, repair or replacement portion of the
Broadband System, and/or the cost of the construction of additions, betterments, extensions or improvements to the
Broadband System, then the excess Net Proceeds will be applied in part to the prepayment of Installment Payments
as provided in the Installment Purchase Agreement and in part to such other fund or account as may be appropriate
and used for the retirement of Bonds and Contracts in the same proportion which the aggregate unpaid principal
balance of Installment Payments then bears to the aggregate unpaid principal amount of such Bonds and Contracts.
If such Net Proceeds are sufficient to enable the District to retire the entire obligation evidenced by the Installment
Purchase Agreement prior to the final due date of the Installment Payments as well as the entire obligations $
evidenced by Bonds and Contracts then remaining unpaid prior to their final respective due dates, the District may
elect not to reconstruct, repair or replace the damaged or destroyed portion of the Broadband System, and/or not to
construct other additions, betterments, extensions or improvements to the Broadband System; and thereupon such
Net Proceeds will be applied to the prepayment of Installment Payments as provided in the Installment Purchase
Agreement and to the retirement of such Bonds and Contracts.
(b) The District will procure and maintain liability and workers compensation coverage, if available
on commercially reasonable terms from reputable insurance companies, and such other insurance as it will deem
advisable or necessary to protect its interests and the interests of the Corporation, which insurance will afford
3
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and against such risks as are usually covered in connection with broadband systems
protection in such amounts i.
similar to the Broadband System. y
(c) Any insurance maintained pursuant to paragraph (a) or (b) above may be maintained under a
self-insurance program so long as such self-insurance is maintained in the amounts and manner usually maintained
sethe Broadband System and is, in the opinion
connection with broadband systems similar to of an accredited $
actuary, actuarially sound. ;
All policies of insurance required to be maintained in he Installment Purchase Agreement will provide that
i
d
y (30) days written notice of any intended cance
the Corporation and the Trustee will be given thirt llat on thereof or
reduction of coverage provided thereby.
Account] Records' Financial Statements and Other Re orts. The District will keep appropriate
P
and
accounting records in which complete and correct entries the ill e orramadeti naand transactions
he Trustee eat reasonable lating to theours and
System, which records will be available for ins ection by rP
under reasonable conditions.
rider the
Protection of Securit and Ri tits of the Co oration. The District will preserve and protect the security of
tion to the
the
f all
he Installment
Purchase
hase Agreement and wint Payments u
Agreement ll �harrain rights
ndf defend sucharights again tnalllc aims and demandsPAYMENT
MENT '.
persons. OTHER THAN REVENUES,NO OTHER DISTRICT MONEYS ARE PLEDGED TO THE PAYMENT
INSTALLMENTPAY AND
OF THE PAYMENTS.
E DIS FCT SHALL UESN AND LISMENT HEREBYYPROHIB PROHIBITED
OTHER MOUNTS
TS FROM ANY OTHER DISTRICT FUNDS OR MONEYS OR
FROM PAYING INSTALLMENT PAYMEN
REQUIRED TO BE USING SUCH PERFORMEDOR MONE BY IOT CTH
ONTAINED HEREIN.E PERFORMANCE OF ANY AGREEMENTS OR COVENANTS
Payment of Taxes and Com liance with Governmental Re ulations. The District will pay and discharge all
1wFully imposed upn the
any part thereof is uponand other govental chai he Revernmewhen thesame will become stem, or
ges which may ldue,
The D trict will dulyBobservae andnd yconfotm
he
or
Swith allystem orn of the Broadband
lid any part thereof, butregulations andgthe District will not berg quired totcmplye t irements of any gmentalwith anyregu at ons or requirements so
long as the validity or application thereof will be contested in good faith.
Amount of Rates and Charges. To the fullest extent permitted by law, the District will fix, prescribe and
collect rates and charges for the Broadband Service which will be at least sufficient to yield during each r. he District Year
ebt
Net may make adjustments from time to time in suenty fiv'ch ratestandscharges and mayrmake such classifrcatcal ce for such Fis aon thereof asit
ct
unless the Net Revenues
rates deems
and charges bull at all oti reduce the rates and harges then in effe s be sufficient to meet the requirements of he Installment Purchaser om Agr emensuch t.
duced
Collect on of Rates and Charges. The District will have in effect at all times by-laws,rules and regulations
requiring each customer to pay the rates and charges applicable to the Broadband Service and providing for he
billing thereof and for a due date and a delinquency date for each bill.
Eminent Domain Proceeds. If all or any part of the Broadband System is taken by eminent domain
proceedings,the Net Proceeds thereof will be applied as follows:
(a) If(1) the District files with the Corporation and the Trustee a certificate showing eminentof such enues, if he estimated
ed by
he District by reason
loss of annual Net Rev
description onsof the additions, betteuffered or to be rrment,texteensions or improvements to the Broadband
proceedings, (ii) a g P
System proposed to be acquired and constructed by the District from such Net Proceeds, and(iii)an estimate of the
additional annual
on the bags of such to be certificateed from filed with the Corporatiosuch additions, n and the Trustee determinesons or othat improvements,
estimated
the
ntly offset the estimated loss of annual Net Revenues resulting from
additional annual Net Revenues will sufficie
A-10
such eminent domain proceedings so that the ability of the District to meet its obligations under the Installment
Purchase Agreement will not be substantially impaired (which determination will be final and conclusive), then the
District will promptly proceed with the acquisition and construction of such additions, betterments, extensions or
improvements substantially in accordance with such certificate and such Net Proceeds will be applied for the
payment of the costs of such acquisition and construction,and any balance of such Net Proceeds not required by the
District for such purpose will be deposited in the Revenue Fund.
(b) If the foregoing conditions are not met, then such Net Proceeds will be applied by the District in
part to the prepayment of Installment Payments as provided in the Installment Purchase Agreement and in part to
such other fund or account as may be appropriate and used for the retirement of Bonds and Contracts in the same
proportion which the aggregate unpaid principal balance of Installment Payments then bears to the aggregate unpaid
principal amount of such Bonds and Contracts.
Further Assurances. The District will adopt, deliver, execute and make any and all further assurances,
instruments and resolutions as may be reasonably necessary or proper to carry out the intention or to facilitate the
Performance of the Installment Purchase Agreement and for the better assuring and confirming unto the Corporation
of the rights and benefits provided to it therein.
EVENTS OF DEFAULT AND REMEDIES OF THE CORPORATION
Events of Default and Acceleration of Maturities. If one or more of the following Events of Default
happens,that is to say--
(a) if default is made by the District in the due and punctual payment of any Installment Payment or
any Contract or Bond when and as the same will become due and payable;
(b) if default will be made by the District in the performance of any of the other agreements or
covenants required in the Installment Purchase Agreement by it or in any Contract or Bond to be performed by it,
and such default continues for a period of sixty (60) days after the District has been given notice in writing of such
default by the Corporation;
(c) if the District files a petition or answer seeking arrangement or reorganization under the federal
bankruptcy laws or any other applicable law of the United States of America or any state therein, or if a court of
competent jurisdiction approves a petition filed with or without the consent of the District seeking arrangement or
reorganization under the federal bankruptcy laws or any other applicable law of the United States of America or any
state therein, or if under the provisions of any other law for the relief or aid of debtors any court of competent
jurisdiction assumes custody or control of the District or of the whole or any substantial part of its property; or
(d) if payment of the principal of any Contract or Bond is accelerated in accordance with its terms;
then and in each and every such case during the continuance of such Event of Default specified in clauses
(e) and (d) above, the Corporation shall, and for any other such Event of Default the Corporation may, and in each
and every such case the Corporation, by notice in writing to the District, will declare the entire principal amount of
the unpaid Installment Payments and the accrued interest thereon to be due and payable immediately, and upon any 3
such declaration the same will become immediately due and payable,anything contained in the Installment Purchase
Agreement to the contrary notwithstanding. The Installment Purchase Agreement, however, is subject to the
condition that if at any time after the entire principal amount of the unpaid Installment Payments and the accrued
interest thereon will have been so declared due and payable and before any judgment or decree for the payment of
the moneys due will have been obtained or entered the District will deposit with the Corporation a sum sufficient to
pay the unpaid principal amount of the Installment Payments and/or the unpaid payment of any other Contract or
such overdue installments, at the rate or rates appl
Bond referred to in clause(a) above due prior to such declaration and the accrued interest thereon, with interest on
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to the remaining unpaid principal balance of the Installment
Payments or such Contract or Bond if paid in accordance with their terms, and the reasonable expenses of the
Corporation, and any and all other defaults known to the Corporation (other than in the payment of the entire
principal amount of the unpaid Installment Payments and the accrued interest thereon due and payable solely by
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ion
the
reason of suchdeemed by th sat
e Corporation to be ion
ill eadequa e been made
w good
ohaver beendmad to e thereforisface then f and inrevveryosuch pcasesthe v
Corporation,by written notice to the District, may rescind and annul such declaration and its consequences;but no
affect any subsequent default or will impair
such rescission and annulment will extend to or will or exhaust any fight
or power consequent thereon.
A lication of Funds U on Acceleration. Upon the date of the declaration of acceleration as provided in
thereafter received will be applied in the following order
the installment Purchase Agreement, all Revenues
First,to the payment without preference or priority, and in the event of any insufficiency of such Revenues
ratably without any discrimination or preference, of the fees, costs and expenses of the
Corporation and Trustee, if any, including reasonable compensation to its accountants and
counsel; {
Second,to the payment of the Operation and Maintenance Costs;and
r'
Third, to the payment of the entire principal amount of the in
Installment Payments and the unpaid
principal amount of all Bonds and Contracts and the accrued interest thereon, with interest on the
overdue installments at the rate or rates of interest applicable to the installment Payments and such
ccordance with their respective terms.
Bonds and Contracts if paid in a
f the Corooration. The Corporation will have the right : (a)by mandamus or other action
Other Remedies o
or proceeding or suit at law or m equity to enforce its rights against the District or any director,officer or employee
thereof,and to compel the District or any such director,officer or employee to perform and carry out its Installmenttied in the his duties
be
y it or him conta,
under the Law and the agreementsin and
equity d Ienanto entoin required
ny acctsoor thingperformed
which e are unlawful or violate the fights ofthe
Purchase Agreement suit)by
Corporation; or (c)by suit in equity upon the happening of an Event of Default to require the District and its
directors,officers and employees to account as the trustee of an express trust.
NOTWITHSTANDING ANYTHING CONTAINED IN THE INSTALLMENT PURCHASE
AGREEMENT,THE CORPORATION WILL HAVE NO SECURITY INTEREST IN OR MORTGAGE ON THE
PROJECT, THE BROADBAND
SYSTEM R OTHER ASSETS OF THE A EO DISTRICT,
GREEMENT WILL RESULT INT14E LOSS OF HE PROJECT,
UNDER THE IN
THE BROADBAND SYSTEM OR OTHER ASSETS OF THE DISTRICT.
Non-Waiver. Nothing in the Installment Purchases t ct or impair
the obligation
ithe respective
District, which is absolute and unconditional, to pay the Installment Payment
due dates or upon prepayment from the Net Revenues, the Certificate Payment Fund and the other funds pledged in
the Installment Purchase Agreement for such payment, or will affect or impair the right of the Corporation,which is
it to enforce such payment by virtue of the contract embodied therein.
also absolute and unconditional,to institute su
A waiver of any default or breach of duty or contract by the Corporation will not affect any subsequent
default or breach of duty or contract or impair any rights or remedies on any such subsequent default or breach of
duty or contract. No delay or omission by the Corporation to exercise any right or remedy accruing upon any
default or breach of duty or contract will impair any such right or remedy or will be construed to be a waiver of any
such Corporation acquiescence on by the Law or by the Installment PurchaseAgreement may be enfor ed and exercised from time to time
and as often as will be deemed expedient by the Corporation.
If any action, proceeding or suit to enforce any right or exercise any remedy is abandoned or determined
adversely to the Corporation, the District and the Corporation will be restored to their former Positions, fights and
remedies as if such action,proceeding or suit had not been brought or taken.
Remedies Not Exclusive. No remedy in the Installment Purchase Agreement conferred upon or reserved to
y will
each suc
b ein addition toteverynded to be exclusive of any other other remedy given under the Installment Purchase hase Agreementdexistingin lawcumulativeo equtty or
be
A-12
by statute or otherwise and may be exercised without exhausting and without regard to any other remedy conferred
by the Law or any other law.
If any remedial action is discontinued or abandoned, the Trustee and Certificate Owners will be restored to
their former positions.
DISCHARGE OF OBLIGATIONS
Discharge of Obligat' . (a)When all or any portion of the Installment Payments will have become due
and payable in accordance with the Installment Purchase Agreement or a written notice of the District to prepay all
or any portion of the Installment Payments will have been filed with the Trustee; and (b)there will have been
deposited with the Trustee at or prior to the Installment Payment Dates or date (or dates) specified for prepayment,
in trust for the benefit of the Corporation or its assigns and irrevocably appropriated and set aside to the payment of
all or any portion of the Installment Payments, sufficient moneys and non-callable Permitted Investments, issued by
the United States of America and described in clause (A) of the definition thereof, the principal of and interest on
which when due will provide money sufficient to pay all principal,prepayment premium, if any, and interest of such
Installment Payments to their respective Installment Payment Dates or prepayment date or dates as the case may be;
and (c)provision will have been made for paying all fees and expenses of the Trustee, then and in that even, the
t
right, title and interest of the Corporation in the Installment Purchase Agreement and the obligations of the District
thereunder will, with respect to all or such portion of the Installment Payments as have been so provided for,
thereupon cease, terminate, become void and be completely discharged and satisfied (except for the right of the
Trustee and the obligation of the District to have such moneys and such Permitted Investments applied to the
payment of such Installment Payments).
In such event, upon request of the District the Trustee will cause an accounting for such period or periods
as may be requested by the District to be prepared and filed with the District and will execute and deliver to the
District all such instruments as may be necessary or desirable to evidence such total or partial discharge and
satisfaction, as the case may be, and, in the event of a total discharge and satisfaction, the Trustee will pay over to
the District, after payment of all amounts due the Trustee pursuant to the Trust Agreement, as an overpayment of
Installment Payments, all such moneys or such Permitted Investments held by it pursuant to the Installment Purchase
Agreement other than such moneys and such Permitted Investments as are required for the payment or prepayment
of the Installment Payments, which moneys and Permitted Investments will continue to be held by the Trustee in
trust for the payment of the Installment Payments and will be applied by the Trustee to the payment of the
Installment Payments of the District.
MISCELLANEOUS
Liability of Distr ct Limited to Revenues. Notwithstanding anything contained in the Installment Purchase
Agreement, the District will not be required to advance any moneys derived from any source of income other than
the Revenues and the Revenue Fund for the payment of amounts due under the Installment Purchase Agreeme lment
Y OTHER DIST nu or
for the performance of any agreements or covenants required to be performed by it contained in the Instal
Purchase Agreement. THE DISTRICT IS HEREBY PROHIBITED FROM USING ANY
FUNDS FOR ANY SUCH PURPOSE. RI The obligation of the District to make the Installment Payments is a special obligat on of the District
State of California or
payable solely from the Net Revenues, and does not constitute a debt of the District or of the
of any
political subdivision thereof in contravention of any constitutional or statutory debt limitation or restriction.
OTHER THAN REVENUES, NO OTHER DISTRICT MONEYS ARE PLEDGED TO THE PAYMENT
OF THE INSTALLMENT PAYMENTS. THE DISTRICT SHALL PAY INSTALLMENT PAYMENTS SOLELY
FROM REVENUES AND IS PROHIBITED FROM PAYING INSTALLMENT PAYMENTS FROM ANY
OTHER DISTRICT FUNDS OR MONEYS.
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Benefits of Installment Purchase Agreement Limited to Parties. Nothing contained in the Installment
Purchase Agreement, expressed or implied, is intended to give to any person other than the District or the
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Corporation [or its successor or assigns] any right remedy or claim under or pursuant to the Installment Purchase
Agreement and any agreement or covenant required in the Installment Purchase Agreement to be performed by or
on behalf of the District or the Corporation will be for the sole and exclusive benefit of the other party.
Successor Is Deemed Included in all References to Predecessor. Whenever either the District or the •i;
Corporation is named or referred to in the Installment Purchase Agreement, such reference will be deemed to
include the successor to the powers, duties and functions that are presently vested in the District or the Corporation,
and all agreements and covenants required by the Installment Purchase Agreement to be performed by or on behalf
of the District or the Corporation will bind and inure to the benefit of the respective successors thereof whether so y
expressed or not.
Waiver of Personal Liability. No director, officer or employee of the District will be individually or
personally liable for the payment of the Installment Payments, but nothing contained in the Installment Purchase g
Agreement will relieve any director, officer or employee of the District from the perfo mance of any official duty
provided by any applicable provisions of law or by the Installment Purchase Agreement.
Partial Invalidity, If any one or more of the agreements or covenants or portions of the Installment
Purchase Agreement required by the Installment Purchase Agreement to agreements,
performed such
o en the part en the
District or the Corporation will be contrary to law,then such agreement or agreements, such covenant or covenants
Di such portions thereof will be null and void and will be deemed separable from the remaining agreements and
covenants or portions thereof and will in no way affect the validity of the Installment Purchase Agreement. The
ted the Installment Purchase Agreement, and
District and the Corporation have declared that they would have execu
article, section,paragraph,subdivision,sentence,clause and phrase of the Installment Purchase
each and every other e or more articles, sections, paragraphs, subdivisions, sentences,
Agreement irrespective of the fact that any on
clauses or phrases of the Installment Purchase Agreement or the application thereof to any person or circumstance
may be held to be unconstitutional,unenforceable or invalid
Assi nment. The Installment Purchase Agreement and any rights under the installment Purchase
without the necessity of obtaining the prior
Agreement may be assigned by the Corporation, as a whole or in part,
consent of the District.
Net Contract. The Installment Purchase Agreement will be deemed and construed to be a net contract, and
the nt Purchase
nt Payments
andlalltotherrpayments required underg
ay absolutely net duringthe Installment Purchase the ter of the eAgreement, free of any deductnt,the ions and without
abatement, diminution or set-off whatsoever.
California Law. THE INSTALLMENT PURCHASE AGREEMENT WILL BE CONSTRUED AND
GOVERNED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
Indemnification of Comoration, The District will indemnify and hold harmless the Corporation if and to
the extent permitted by law, from and against all claims, advances, damages and losses, including legal fees and
with the acceptance or the performance of its duties under the Installment
expenses, arising out of or in connection w
indemnification will be made for willful
Purchase Agreement and under the Trust Agreement; provided that no
misconduct, negligence or breach of an obligation under the Installment Purchase Agreement or under the Trust
Agreement by the Corporation.
Amendments Permitted. The Installment Purchase Agreement and the rights and obligations of the
Corporation,the District,the Owners of the Certificates and of the Trustee may be modified or amended at any time
hase Agreement which will become binding when the written consents of
by an amendment to the Installment Pate
lase
Owners of a majority in aggregate principal amount of the Certificates then Outstanding, exclusive of
Certificates disqualified as provided in the Trust Agreement, will have been filed with the Trustee. No such
modification or amendment will (1) extend the stated maturities of the Certificates, ct reduce he rate d interest
represented thereby, or change the method of computing the rate of in with respect thereto, or extend the time
of payment of interest,or reduce the amount of principal represented thereby, or reduce any premium payable on the
rtificate so
er of
percentage of Owners of without
cares whose the conseOntts required fore he execution of ay amendment cor the
modification
P
A-14
of the Installment Purchase Agreement without the consent of the Owners of all Certificates then Outstanding, or(3)
modify any of the rights or obligations of the Trustee, the Corporation or the Bond Insurer without its respective
written consent thereto, or (4) modify the limitations on the liability of the District under the Trust Agreement or
amend the `No Additional Advances" subsection below without the consent of the Nevada County Local Agency
Formation Commission,
The Installment Purchase Agreement and the rights and obligations of the Corporation, the District and of
the Owners of the Certificates may also be modified or amended at any time by an amendment to the Installment
Purchase Agreement which will become binding upon adoption, without the consent of the Owners of any
Certificates, but only to the extent permitted by law and only for any one or more of the following purposes- (a)to
add to the covenants and agreements of the Corporation or the District contained in the Installment Purchase
Agreement other covenants and agreements thereafter to be observed or to surrender any right or power in the
Installment Purchase Agreement reserved to or conferred upon the Corporation or the District, and which will not
adversely affect the interests of the Owners of the Certificates; (b)to cure, correct or supplement any ambiguous or
defective provision contained in the Installment Purchase Agreement or in regard to questions arising under the
Installment Purchase Agreement, as the Corporation or the District may deem necessary or desirable and which will
not adversely affect the interests of the Owners of the Certificates; and (c)to make such other amendments or
modifications as may be in the best interests of the Owners of the Certificates.
No amendment without consent of the Owners may modify any of the rights or obligations of the Trustee
without its written consent thereto.
No Additional Advances. The District shall not make any additional advances or interfund loans for the
purpose of funding the capital or operating costs of the Broadband Service,
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APPENDIX B
DEFINITIONS AND SUMMARY OF CERTAIN
PROVISIONS OF THE TRUST AGREEMENT
The following is a summary of certain provisions f the Trust Agreement.
ions o This summary does not purport f
to be comprehensive and reference should be made to the Trust Agreement for a full and complete statement of then
provisions thereof.
Definitions. Unless the context otherwise requires, capitalized terms used under the caption
"DEFINITIONS AND SUMMARY OF CERTAIN PROVISIONS OF THE TRUST AGREEMENT"will have the
ires, all ca
below will dhaveed below meanings Unless
ascribed thereto in the Irnstallmse uent Purcha et Agreement and the s used below
rust Agreement.fined z
Agreement. The term "Agreement" means the Trust Agreement, as originally executed or as it may from
time to time be amended or supplemented as prov ded for therein.
Assignment Agreement. The term "Assignment Agreement" means that certain Assignment Agreement,
by and between the Corporation and the Trustee, dated as of November I, 2004 as originally executed or as it may
from time to time be amended or supplemented in accordance with its terms.
Certificate Payment Fund. The term "Certificate Payment Fund" means the fund by that name established
in the Trust Agreement.
cans the certificates of participation executed and delivered by the
Certificates. The term "Certificates" m
Trustee pursuant to the Trust Agreement.
Code. The term "Code" means the Internal Revenue Code of 1986, as amended, and the United States
Treasury Regulations in effect with respect thereto.
Delivery Cost Fund. The term"Delivery Cost Fund"means the fund by that name established in the Trust
Agreement.
Delivery Costs. The term "Delivery Costs" means all items of expense directly or indirectly payable by or
reimbursable to the District and related to the authorization, execution, sale and delivery of the Certificates,
including but not limited to costs of preparation and reproduction of documents, printing expenses, filing and
recording fees, initial fees and charges of the Trustee and counsel to the Trustee, legal fees and charges, fees and
disbursements of consultants and professionals,rating agency fees,title insurance premiums,letter of credit fees and
execution and safekeeping
bond insurance premiums (if any), fees and charges for preparation, f the Certificates
the
and any other cost,charge or fee in connection with the original execution and delivery of Centi fica y,
New York,
DenositT C. The term"Depository" or"DTC"means The Depository Trust Company,
New York, a limited purpose trust company organized under the laws of the State of New York in its capacity as
securities depository for the Certificates.
Determination cf Taxabdit . The term "Determination of Taxability"means the Trustee's obtaining actual
knowledge of a judgment or order of a court or an order, ruling, regulation or decision of the United States
Department of the Treasury or the International Revenue Service which is binding with respect to the Certificates
and which declares or determines, as applicable, that interest with respect to the certificates is includable in gross
income for federal income tax purposes (other than interest on any Certificate for any period during which such
Certificate is held by a "substantial user" or any facility financed with the proceeds of the certificates or a "related
person,'as such terms used in Section 147(a)of the Code).
Information Services. The term "Information Services" means national information services that
disseminate securities redemption notices in accordance with then current guidelines of the Securities and Exchange
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Commission, such other services providing information with respect to called bonds as the District may specify in a
Written Request to the District and the Trustee as the Trustee may select.
Installment Payments. The term "Installment Payments" means the installment payments payable by the
District pursuant to the Installment Purchase Agreement and in the amounts and at the times set forth in the
Installment Purchase Agreement.
Installment Payment Date. The term "Installment Payment Date" means each date on which Installment
Payments are scheduled to be paid by the District pursuant to the Installment Purchase Agreement.
Installment Purchase A ment. The term `Installment Purchase Agreement" means the Installment
Purchase Agreement, dated as of November 1, 2004, by and between the District and the Corporation, as originally
executed or as it may from time to time be amended or supplemented in accordance with its terms.
Interest Fund. The term "Interest Fund"means the fund by that name established in the Trust Agreement.
Letter of Representations. The term "Letter of Representations" means the letter of the District and the
Trustee delivered to and accepted by the Depository on or prior to delivery of the Certificates as book-entry
certificates setting forth the basis on which the Depository serves as depository for such book-entry certificates, as
originally executed or as it may be supplemented or revised or replaced by a letter from the District and the Trustee
delivered to and accepted by the Depository.
Nominee. The term "Nominee" means the nominee of the Depository, which may be the Depository, as
determined from time to time pursuant to the Trust Agreement.
Outstanding. The term "Outstanding,"when used as of any particular time with reference to Certificates,
means (subject to the provisions of the Trust Agreement) all Certificates except: (1)certificates canceled by the
Trustee or delivered to the Trustee for cancellation; (2)Certificates paid or deemed to have been paid within the
meaning of the Trust Agreement; and (3)Certificates in lieu of or in substitution for which other Certificates will
have been executed and delivered by the Trustee pursuant to the Trust Agreement.
Owner. The term "Owner" or "Certificate Owner" or "Owner of Certificates" or any similar term, when
used with respect to the Certificates, means any person who will be the registered owner of any Outstanding
Certificate.
Participants. The term "Participants" means those broker-dealers, banks and other financial institutions
from time to time for which the Depository holds book-entry certificates as securities depository.
Payment Dates- Payment Date. The term "Payment Dates" means each May I and November 1 in each
year commencing May 1, 2005 and any date on which the unpaid Installment Payments are declared to be due and
payable immediately and provided such declaration is not rescinded or annulled, all in accordance with the
Installment Purchase Agreement.
Permitted Investments. The term "Permitted Investments"means any of the following which at the time of
investment are legal investments under the laws of the State for the moneys proposed to be invested therein:
(a) for all purposes, including but not limited to defeasance investments in refunding escrow
accounts: (1) cash (insured at all times by the Federal Deposit Insurance Corporation or otherwise collateralized
with obligations described in paragraph(2)below), or(2) direct obligations of(including obligations issued or held
in book entry form on the books of)the Department of the Treasury of the United States of America; and
(b) for all purposes other than defeasance investments in refunding escrow accounts: (1)obligations
of any of the following federal agencies which obligations represent full faith and credit of the United States of
America, including the Export - Import Bank; Farmers Home Administration; General Services Administration;
U.S. Maritime Administration; Small Business Administration; Government National Mortgage Association
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(GNMA); U.S. Department of Housing & Urban Development (PHA's); and Federal Housing Administration: )
(2)bonds,notes or other evidences of indebtedness rated"AAA"and"Aw by the applicable Rating Agency issued
by the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation with remaining
maturities not exceeding three years, (3) U.S. dollar denominated deposit accounts, certificates of deposit, federal
funds and banker's acceptances with domestic commercial banks(including the Trustee and its affiliates}which are
either insured by the Federal Deposit Insurance Corporation or have a rating on their short term certificates o
deposit on the date of purchase of"A-I" or°`A-l+"by S&P and"P-1"by Moody's and maturing no more than 360
days after the date of purchase (ratings on holding companies are not considered as the rat ng of the bank); (4)
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purchase in the single highest classification, "A-1+"by S&P and
commercial paper which is rated at the time of
"P-l"by Moody's and which matures not more than 270 days after the date of purchase;(5)investments in a money
stee or an
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market fund rated "AAAm" or "AAAm-G" or better by S&P, includ ng such unds for municipal hobl obligations as s
affiliate acts as investment advisor or provides other services; (6) pre-refunded
follows: any bonds or other obligations of any state of the United States of America or of any agency,
such state which are not callable at the option of the obligor prior
instrumentality or local governmental unit of any
to maturity or as to which irrevocable instructions have been given by the obligor to call on the date specified in the
in the highest rating category of S&P and Moody's or any
notice and which are rated, based on the escrow,
successor thereto;(7)any Investment Agreement;and(8)the Local Agency Investment Fund.
Prenavment Fund. The term "Prepayment Fund" means the fund by that name established in the Trust
Agreement.
Prenavment Price. The term "Prepayment Price" means the principal amount with respect to such
Certificate(or portion thereof) plus the applicable premium, if any, payable upon prepayment thereof pursuant to
the provisions of such Certificate and the Trust Agreement.
Principal Corporate Trust Office. The term "Principal Corporate Trust Office" means the principal
corporate trust office of the Trustee in Los Angeles, California,or such other office as the Trustee may from time to
time designate in writing to the District,the Corporation and the Owners.
Principal Fund. The term "Principal Fund" means the fund by that name established in the Trust
Agreement.
Project. The term "Project" means the facilities and equipment described in Exhibit B to the Installment
Purchase Agreement. The term "Parity Project" means any additions, betterments, extensions or improvements
designated by the Board of Directors of the District as a Parity Project, the acquisition and construction of which is
to be paid for with the proceeds of any Contracts or Bonds.
Rebate Fund. The term"Rebate Fund"means the fund by that name established in the Trust Agreement.
Record Date. The term "Record Date" means, with respect to any Payment Date for a Certificate, the
fifteenth day of the calendar month prior to such Payment Date.
Reserve Fund. The term"Reserve Fund"means the fund by that name established in the Trust Agreement.
Securities Depositories. The term "Securities Depositories" means: The Depository Tru
sitories st Company, 711
Stewart Avenue, Garden City, New York 11530, Fax-(516) 227-4039 or 4190; and,in accordance with then current
guidelines of the Securities and Exchange Commission, such other addresses as such depositories may specify
and/or such other securities depositories as the District may designate in a Written Request of the Corporation or a
Written Request of the District,as the case may be,delivered to the Trustee.
Special Counsel. The term "Special Counsel" means any attorney at law or firm of attorneys selected by
the District, of nationally-recognized standing in matters pertaining to the federal tax exemption of interest on bonds
slued by states and political subdivisions, and duly admitted to practice law before the highest court of any state of
the United States of America.
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State. The term"State"means the State of California.
Statement 1 the Comoration or District. The term "Statement of the Corporation or District" means a
statement signed by or on behalf of(i)the Corporation by its President or a Vice President or(ii)the District by the
President and by the Secretary or by any two persons (whether or not members of the Board of Directors)who are
specifically authorized by resolution of the District to sign or execute such a document on its behalf. If and to the
extent required by the provisions of the Trust Agreement, each Statement of the Corporation or District will include
the statements provided for in the Trust Agreement,
Tax Certificate. The Term "Tax Certificate" means the Tax Certificate dated the date of closing of the
Certificates, concerning certain matters pertaining to the use and investment of proceeds of the Certificates executed
by and delivered to the District on the date of execution and delivery of the Certificates, including any and all
exhibits attached thereto.
Trustee. The term "Trustee" means BNY Western Trust Company, a banking corporation duly organized
and existing under and by virtue of the laws of the State of California having a principal corporate trust office in Los
Angeles, California, or such other office as the Trustee may from time to time designate in writing to the District,
the Corporation and the Owners,or its successor as Trustee under the Trust Agreement.
Written Consent of the Cor oration or District Written Order of the Corporation or District. Written
Request of the Corporation or District, Written Requisition of the Corporation or District. The terms "Written
Consent of the Corporation or District," "Written Order of the Corporation or District," "Written Request of the
Corporation or District," and "Written Requisition of the Corporation or District" mean, respectively, a written
consent, order, request or requisition signed by or on behalf of (i) the Corporation by its President or a Vice
President or(ii)the District by the President or General Manager or its Treasurer or by the Secretary or by any two
persons (whether or not members of the Board of Directors) who are specifically authorized by resolution of the
District to sign or execute such a document on its behalf.
CERTIFICATES; TERMS AND PROVISIONS
Transfer of Certificates. Any Certificate may, in accordance with its terms, be transferred, upon the books
required to be kept pursuant to the provisions of the Trust Agreement, by the person in whose name it is registered,in person or by such person's duly authorized attorney, upon surrender of such Certificate for cancellation at the Principal Corporate Trust Office of the Trustee, accompanied by delivery of a duly executed written instrument of
transfer in a form approved by the Trustee.
Whenever any Certificate or Certificates will be surrendered for transfer, the Trustee will execute and
deliver a new Certificate or Certificates of the same maturity, for a like aggregate principal amount and of
authorized denomination or denominations. The Trustee may charge a sum for each new Certificate executed and
delivered upon any transfer. The Trustee may require the payment by any Certificate Owner requesting any such
transfer of any tax or other governmental charge required to be paid with respect to such transfer. Following any
transfer of Certificates the Trustee will cancel and destroy the Certificates it has received.
Exchange of Certificates. Certificates may be exchanged at the Principal Corporate Trust Office of the
Trustee, for a like aggregate principal amount of Certificates of other authorized denominations of the same
maturity. The Trustee may charge a sum for each new Certificate executed and delivered upon any exchange except
in the case of any exchange of temporary Certificates for definitive Certificates. The Trustee may require the
payment by the Owner requesting such exchange of any tax or other governmental charge required to be paid with f respect to such exchange. Following any exchange of Certificates the Trustee will cancel and destroy the
Certificates it has received.
The Trustee will not be required to register the exchange, or transfer pursuant to the Trust Agreement, of
any Certificate(i)within 15 days preceding selection of Certificates for prepayment or(ii) selected for prepayment.
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Certificate Reeistration Books. The Trustee will keep or cause to be kept, at the office of the Trustee in r
Los Angeles, California, sufficient books for the registration and transfer of the Certificates, which will upon
at all reasonable times be open to inspection by the Corporation or the District; and,
reasonable prior notice and
ill,under such reasonable regulations as it may prescribe, register
upon presentation for such purpose, the Trustee w
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or transfer or cause to be registered or transferred,on said books,Certificates as provided above.
The person in whose name any Certificate is registered will be deemed the Owner thereof for all purposes
of the Trust Agreement, and payment of or an account of the interest with respect to and principal of and
Prepayment Price represenred by such Certificate will be made only to or upon the order in writing of such
d effectual to satisfy an
registered Owner, which payments will be valid an d discharge liability upon such Certificate
to the extent of the sum or sums so paid.
Cer ficates Mut lated Lost Dest oyed or Stolen. If any Certificate will become mutilated,the Trustee will
princip
execute and deliver a new Certificate of like tenor, maturity and al amount in exchange and substitution for ,
the Certificate so mutilated,but only upon sur ender to the Trustee of the Certificate so mutilated.
red to the Trustee will be canceled by it and destroyed. if any
Every mutilated Certificate so surrende
Certificate is lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the Trustee,
and, if such evidence is satisfactory to the Trustee and indemnity satisfactory to the Trustee will be given
indemnifying the Trustee,the Corporation and the District,the Trustee, at the expense of the Certificate Owner,will
execute and deliver a new Certificate of like tenor and maturity, and numbered as the Trustee will determine, in lieu
of and in substitution for the Certificate so lost, destroyed or stolen. The Trustee may require payment of a sum not
exceeding the actual cost of preparing each new,Certificate executed under the Trust Agreement and of the expenses
which may be incurred by the Trustee under the Trust Agreement. Any Certificate executed under the provisions of
in lieu of any Certificate alleged to be lost, destroyed or stolen will be equally and
the Trust Agreement
the benefits of the Trust Agreement with all other Certificates secured by the Trust
proportionately entitled to
Agreement. The Trustee will not be required to treat both the original Certificate and any replacement Certificate as
being Outstanding for the purpose of determining the principal amount of Certificates which may be executed under
the Trust Agreement or for the purpose of determining any percentage of Certificates Outstanding under the Trust
Agreement, but both the original and replacement Certificate will be treated as one and the same. Notwithstanding
any other provision of the Trust Agreement, in lieu of delivering a new Certificate for a Certificate which has been
mutilated, lost, destroyed or stolen and which has matured or has been selected for prepayment, the Trustee may
make payment of such Certificate upon receipt of indemnity satisfactory to the Trustee.
Book-E�ni
(a) Election of Book-Entry System. Prior to the execution and delivery of the Certificates,the District
may provide that such Certificates will be imtial3y executed and delivered as book-entry Certificates. if the Distr ct
elects to deliver any Certificates in book-entry form, then the District will cause the delivery of a separate single
fully registered certificate (which may be typewritten) for each maturity date of such Certificates in an authorized
denomination corresponding to that total principal amount of the Certificates designated to mature on such date.
Upon initial execution and delivery, the ownership of each such Certificate will be registered in the Certificate
registration books in the name of the Nominee, as nominee of the Depository and ownership of the Certificates, or
any portion thereof may not thereafter be transferred except as provided in the Trust Agreement.
With respect to book-entry Certificates, the District and the Trustee will have no responsibility or
Obligation to any Participant or to any person on behalf of which such a Participant holds an interest in such
sentence,the
book-entry Certificates. Without limiting the immediatelyhe accuracTe of records of he Destrict and pository itory,tthe Nominee, or any
no responsibility or obligation with respect t, (i) Y
Participant with respect to any ownership interest in book-entry Certificates, (ii) the delivery to any Participant or
any other person, other than an Owner as shown in the Certificate registration books, of any notice with respect to
ice of prepayment,(iii)the selection by the Depository and its Participants
book-entry Certificates, including any not the epays
of the beneficial interests in
by the Depositorypry Certificates
or any Participantid in or anyeothertpersonsofcany amour with respect to
part, or (iv) he pay
principal,premium, if any, or interest with respect to book-entry Certificates. The District and the Trustee may treat
and consider the person in whose name each book-entry Certificate is registered in the Certificate registration books
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as the absolute Owner of such book-entry Certificate for the purpose of payment of principal,premium, if any, and
interest with respect to such Certificate, for the purpose of giving notices of prepayment and other matters with
respect to such Certificate, for the purpose of registering transfers with respect to such Certificate, and for all other
purposes whatsoever. The Trustee will pay all principal, premium, if any, and interest with respect to the
Certificates only to or upon the order of the respective Owner, as shown in the Certificate register, or his respective
attorney duly authorized in writing, and all such payments will be valid and effective to fully satisfy and discharge
the District's obligations with respect to payment of principal of, premium, if any, and interest evidenced and
represented by the Certificates to the extent of the sum or sums so paid. No person other than an Owner, as shown
in the Certificate registration books, will receive a Certificate evidencing the obligation to make payments of
principal, premium, if any, and interest evidenced and represented by the Certificates. Upon delivery by the
Depository to the Owner and the Trustee, of written notice to the effect that the Depository has determined to
substitute a new nominee in place of the Nominee, and subject to the provisions in the Trust Agreement with respect
to Record Dates, the word Nominee in the Trust Agreement will refer to such nominee of the Depository.
(b) Delivery of Letter of Representatons. In order to qualify the book-entry Certificates for the
Depository's book-entry system, the District and the Trustee will execute and deliver to the Depository a Letter of
Representations. The execution and delivery of a Letter of Representations will not in any way impose upon the
District or the Trustee any obligation whatsoever with respect to persons having interests in such book-entry
Certificates other than the Owners, as shown on the Certificate registration books. By executing a Letter of
Representations, the Trustee will agree to take all action necessary at all times so that the District will be in
compliance with all representations of the District in such Letter of Representations. In addition to the execution
and delivery of a Letter of Representations, the District and the Trustee will take such other actions, not inconsistent
with the Trust Agreement, as are reasonably necessary to qualify Book-Entry Certificates for the Depository's
book-entry program.
(e) Selection of Depository. In the event (i) the Depository determines not to continue to act as
securities depository for book-entry Certificates, or (ii) the District determines that continuation of the book-entry
system is not in the best interest of the beneficial owners of the Certificates or the District, then the District will
discontinue the book-entry system with the Depository. If the District determines to replace the Depository with
another qualified securities depository, the District will prepare or direct the preparation of a new single, separate,
fully registered Certificate for each of the maturity dates of such book-entry Certificates, registered in the name of
such successor or substitute qualified securities depository or its Nominee as provided in the Trust Agreement. If
the District fails to identify another qualified securities depository to replace the Depository, then the Certificates
will no longer be restricted to being registered in such Certificate register in the name of the Nominee, but will be
registered in whatever name or names the Owners transferring or exchanging such Certificates will designate, in
accordance with the provisions of the Trust Agreement.
(d) payments To Denositorv. Notwithstanding any other provision of the Trust Agreement to the
contrary, so long as all Outstanding Certificates are held in book-entry form and registered in the name of the
Nominee, all payments with respect to principal, prepayment premium, if any, and interest with respect to such
Certificate and all notices with respect to such Certificate will be made and given, respectively to the Nominee, as
Provided in the Letter of Representations or as otherwise instructed by the Depository and agreed to by the Trustee
notwithstanding any inconsistent provisions in the Trust Agreement.
(e) Transfer of Certificates to Substitute De osite,
O The Certificates will be initially executed and delivered as provided in the Trust
Agreement. Registered ownership of such Certificates, or any portions thereof, may not thereafter be transferred
except:
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(1) to any successor of DTC or its nominee,or of any substitute depository
designated pursuant to the Trust Agreement("Substitute Depository"),-provided that any successor of DTC or
Substitute Depository will be qualified under any applicable laws to provide the service proposed to be provided by
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(2) to any Substitute Depository,upon(1)the resignation of DTC or its successor
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(or any Substitute Depository or its successor)from its functions as depository or(2)od�ded that anysache District i
that DTC(or its successor)is no longer able to carry out its functions as depository;p
Substitute Depository will be qualified under any applicable laws to provide the services proposed to be provided by #
it;or
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(3) to any person as provided below,upon(1)the resignation of DTC or its
successor(or any Substitute Depository or its successor)from its functions as depository, or(2)a determination by }
the District that DTC or its successor(or Substitute Depository or its successor)is no longer able to carry out its
functions as depository.
(ii) In the case of any transfer pursuant to clause(1) or clause (2) of subparagraph e sthis
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paragraph, upon receipt of all outstanding Certificates by the Trustee,together with a written request of the District
to the Trustee designating the Substitute Depository, a single new Certificate, which the District will prepare or
cause to be prepared, will be executed and delivered for each maturity of Certificates then outstanding,registered in
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the name of such successor or such Substitute Depository or their Nominees, as the caseof subparagraphlls h tctofah s
such written request of the District. In the case of any transfer pursuant to clause (3) ()
all outstanding Certificates by the Trustee,together with a written re
paragraph,upon receipt of quest of the District
to the Trustee, new Certificates, which the District will prepare or cause to be prepared, will be executed and
delivered in such denominations and registered in the names of such persons as are requested in such written request
of the District, subject to the limitations of the Trust Agreement, provided shoat them the Tru date ee receipt of will not be such written
required to
deliver such new Certificates within a period of less than sixty (60) days
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request from the District.
trial prepayment or an advance refunding of any Certificates
(iii)District.
In the case of a pa
evidencing a portion of the principal maturing in a particular year'Certificates indicating the date and amounts
DTC or its successor (or any Substitute
Depository or its successor) will make an appropriate notation on suchcepta
of Representations.schreduction
i Trustee al, snot r liablecfor such Depository's e to the failure ee, all tto makaccordance
uch notations or rrors on
making such notations.
(iv) The District and the Trustee will be entitled to treat the person in whose name any
Certificate is registered as the Owner thereof for all purposes of the Trust Agreement and any applicable laws,
the Trustee
notwithstanding any notice to the contrary received s the to, commsunicating or e District; and the it notifying, orpistrict otherw se dealing with
will not have responsibility for transmitting pay
e any responsibility or
any beneficial owners of the Certificates. Neither the District nor the Trustee will have
obligation, legal or otherwise, to any such beneficial owners or to any other party, including DTC or its successor
the Owner of any
(or
Suswely on records as to the identity of theexceptits successor), toowners o the Certificates.Certificates, and th
oe Trustee may rely
VALIDITY OF CERTIFICATES
Validity of Certificates. The validity of the execution and delivery of the Certificates is not dependent on
and will not be affected in any way by any proceedings taken by the District, the Corporation or the Trustee with
. The recital contained in the
respect to or in connection with the Installment Purchase Agreement a and thhee that
alifornia and
all acts, conditions and things required by the Constitution and statutes of the State of C that
Agreement to exist,to have happened and to have been performed precedent to and in the delivery thereof do exist,
have happened and hve been performed evidence of their validity and of compliance twith the provis manner
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ions of law in their delivery.d by law will be conclusive
PREPAYMENT OF CERTIFICATES
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Selection of Certificates for Pre a ment. Whenever less than all of the Certificates are called for
Prepayment, the Trustee will select the Certificates or portions thereof to be prepaid from the Outstanding
Certificates in accordance with the Trust Agreement. The Trustee will promptly notify the District in writing of the
numbers of the Certificates or portions thereof so selected for prepayment.
Notice of Prepayment. Notice of prepayment will be mailed, first class postage prepaid, to the respective
Owners of any Certificates designated for prepayment at their addresses appearing on the Certificate registration
books and to the Information Services and by registered or certified or overnight mail to the Securities Depositories
at least 30 days but not more than 60 days prior to the prepayment date.
Each notice of prepayment will state the date of notice, the prepayment date, the place or places of
Prepayment and the Prepayment Price, will designate the maturities, CUSIP numbers, if any, and, if less than all
Certificates of any such maturity are to be prepaid, the serial numbers of the Certificates of such maturity to be
prepaid by giving the individual number of each Certificate or by stating that all Certificates between two stated
numbers, both inclusive, have been called for prepayment and,in the case of Certificates to be prepaid in part only,
the portions thereof to be prepaid. Each such notice will also state that on said date there will become due and
payable on each of said Certificates the Prepayment Price thereof or of said specified portion of the principal
represented thereby in the case of a Certificate to be prepaid in part only, together with interest accrued with respect
thereto to the prepayment date, and that (provided that moneys for prepayment have been deposited with the
Trustee) from and after such prepayment date interest with respect thereto will cease to accrue, and will require that
such Certificates be then surrendered to the Trustee. Any defect in the notice or the mailing thereof will not affect
the validity of the prepayment of any Certificate.
District. Notice of prepayment of Certificates will be given by the Trustee on behalf of and at the expense of the
Partial Prepayment of Certificate. Upon surrender of any Certificate prepaid in part only, the Trustee will
execute and deliver to the Owner thereof, at the expense of the District, a new Certificate or Certificates of
authorized denominations equal in aggregate principal amount to the unprepaid portion of the Certificate
surrendered and of the same maturity.
Effect of Prepayment. When notice of prepayment has been duly given as aforesaid, and moneys for
payment of the Prepayment Price of, together with interest accrued to the prepayment date with respect to, the
Certificates (or portions thereof) so called for prepayment are held by the Trustee, the Certificates (or portions
thereof) so called for prepayment will,on the prepayment date designated in such notice, become due and payable at
the Prepayment Price specified in such notice and interest accrued thereon to the prepayment date; and from and
after the prepayment date interest represented by the Certificates so called for prepayment will cease to accrue, said
Certificates (or portions thereof)will cease to be entitled to any benefit or security under the Trust Agreement, and
the Owners of said Certificates will have no rights in respect thereof except to receive payment of said Prepayment
Price and accrued interest,
All Certificates prepaid pursuant to the provisions of this paragraph will be canceled upon surrender thereof
and destroyed by the Trustee.
INSTALLMENT PAYMENTS
Pledge and Deposit of Installment Payments. The Installment Payments are irzevocably pledged to, and
will be used for, the punctual payment of the Certificates, and the Installment Payments will not be used for any
other purpose while any of the Certificates remain Outstanding. The pledge will constitute a first and exclusive lien
on the Installment Payments in accordance with the terms of the Trust Agreement.
All Installment Payments to which the Corporation may at any time be entitled (including income or profit k
from investments pursuant to the Trust Agreement) will be paid directly to the Trustee pursuant to the terms of the
Assignment Agreement,and if received by the Corporation at any time will be deposited by the Corporation with the
Trustee within one business day after the receipt thereof, and the Trustee will deposit all Installment Payments as
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and when received in the Certificate Payment Fund. All moneys at any time deposited in the Certificate Payment
Fund will be held by the Trustee in trust for the benefit of the Owners from time to time of the Certificates,but will
lely for the uses and purposes set forth in the Trust Agreement.
nevertheless be disbursed,allocated and applied so �
Certificate Payment Fund. There is established with the Trustee each of the Certificate Payment Fund and k
the Reserve Fund each of which the Trustee covenants to maintain and hold in trust separate and apart from other
funds held by it so long as any Installment Payments remain unpaid All moneys on deposit in the Certificate
Payment Fund(including income or profit from investments)will be retained therein except as expressly provided in
the Trust Agreement.
The Trustee will transfer from the Certificate Payment Fund the following amounts at the times and in the
following respective
manner provided in the Trust Agreement, and will deposit such amounts in one or more of the
funds
beath of ca which
ch the
Tof chew lhlbe disbursed a d appl ed onlylish and maintain and olast authorized n trust �nt the nTrust Ageementd apart from T Such
hehamounts will be so transferred to and deposited in the following respect ve funds in the following order of priority,
the requirements of each such fund at the time of deposit to be satisfied before any transfer is made to any fund
subsequent in priority:
(a) Interest Fund. The Trustee, on the last business day before each Interest Payment Date
(commencing on the last business day of April, 2005), will deposit in the Interest Fund an amount representing the
portion of the Installment Payments designated as interest coming due on the next succeeding May 1 or November
1,as the case may be. No deposit need be made into the Interest Fund so long as there will be in such fund moneys
sufficient to pay the interest portion of Certificates then Outstanding due,if any, on the next May I or November 1,
as the case may be.
Except as provided in the Trust Agreement I
,moneys in the Interest Fund will be used and withdrawn by the
Trustee solely for the purpose of paying the interest with respect to the Certificates when due and payable(including
accrued interest on any Certificates prepaid prior to maturity pursuant to the Trust Agreement).
(b) Principal Fund. The Trustee, on the last business day before each November I (commencing on
the last business day of October, 2005), will deposit in the Principal Fund an amount equal to the principal coming
due with respect to th Certificates on the next succeeding
1. No deposit ned be made into
rincipal
Fund so long as there November
will be in such fund moneys suffi i ntt to paythe port on of all Certifica es thentoutst nd ng
designated as principal,and coming due on the next succeeding November I.
Except as provided in the Trust Agreement, moneys in the Principal Fund will be used and withdrawn by
the Trustee solely for the purpose of paying the principal with respect to the Certificates when due and payable.
Prepayment Fund. Moneys to be used for prepayment pursuant to the Trust Agreement and paid
(c)
by the District pursuant to the Installment Purchase Agreement will be transferred by the Trustee From the
Certificate Payment Fund and deposited in the Prepayment Fund on the prepayment date specified in the Written
Request of the District filed with the Trustee pursuant to the Installment Purchase Agreement. Said moneys will be
set aside in the Prepayment Fund solely for the purpose of prepaying the Certificates in advance of their respective
stated maturities and will be applied on or after the date specified for prepayment pursuant to the Trust Agreement to
the payment of the Prepayment Price with respect to the Certificates to be prepaid upon presentation and surrender
of such Certificates.
Moneys in Special Funds. Any moneys in the Delivery Cost Fund,the Certificate Payment
Investment of
Fund, the Interest Fund, the Principal Fund, the efore the dates Reserve Fund and the Prepayment Fund will be invested upon the
Written Request of the District, by the Trustee, in Permitted Investments which will mature on or b
ayment from such fund. Securities acquired as an investment of
when such moneys are scheduled to be needed for p
moneys in a fund will be credited to such fund.
direction5 from the District,
fin lion thereof.see will invest moneys held by it
In the absence of written investment
solely in permitted Investments specified in clause(b)( )of the de
B-9
Any interest, profit or other income on such investments will be deposited when received by the Trustee in
the Reserve Fund to the extent the amount available and contained therein is less than the Reserve Requirement and
thereafter in the Certificate Payment Fund established under the Trust Agreement.
Subject to the further provisions of the Trust Agreement, the Trustee may sell or present for prepayment
any obligations so purchased at the direction of the District whenever it will be necessary in order to provide moneys
to meet any payment, and the Trustee will not be liable or responsible for any loss resulting from such investment.
The Trustee or an affiliate may act as principal or agent in the acquisition or disposition of any investment and
should be entitled Co its customary fee therefor. The Trustee may commingle any of the funds or accounts
established pursuant to the Trust Agreement into a separate fund or funds for investment purposes only; provided,
however, that all funds or accounts held by the Trustee under the Trust Agreement will be accounted for separately
notwithstanding such commingling.
Reserve Fund. The Trustee will deposit in the Reserve Fund the amounts required to be deposited therein
pursuant to the Installment Purchase Agreement and the Trust Agreement and apply moneys in the Reserve Fund in
accordance with the Trust Agreement.
If one business day prior to any Payment Date the moneys in the Certificate Payment Fund are insufficient
to make the payments required by the Trust Agreement with respect to Certificates on such Payment Date, the
Trustee will transfer from the Reserve Fund to the Certificate Payment Fund the amount of such insufficiency. In
the event that the Trustee has transferred moneys from the Reserve Fund to the Certificate Payment Fund in
accordance with the Trust Agreement, upon receipt of the moneys from the District to increase the balance in the
Reserve Fund to the Reserve Requirement,the Trustee will deposit such moneys in the Reserve Fund.
If the amount available and contained in the Reserve Fund exceeds an amount equal to the Reserve
Requirement and if the District is not then in default under the Installment Purchase Agreement, the Trustee will
semiannually on or before each Payment Date withdraw the amount of such excess from the Reserve Fund and will
deposit such amount in the Certificate Payment Fund, and for such determination the Trustee will make a valuation
of the Reserve Fund as often as it may deem appropriate, and in any event on or before each Payment Date in each
year. In addition, the Trustee will, on the date all or any portion of the Certificates are discharged in accordance
with the Trust Agreement, value the Reserve Fund in accordance with the Trust Agreement and withdraw the
excess, if any, on deposit in the Reserve Fund and transfer such amount to or in accordance with the written
direction of the District. Except for such withdrawals, all moneys in the Reserve Fund will be used and withdrawn
by the Trustee solely for the purpose of paying principal, Prepayment Price and interest with respect to the
Certificates in the event that no other moneys of the District are available therefor.
For the purpose of determining the amount in the Reserve Fund, all Permitted Investments credited to the
Reserve Fund will be valued at the lower of cost(inclusive of all interest accrued but not paid),or market value.
The District may substitute a municipal bond debt service reserve fund policy or a surety bond or a letter of
credit(a "Reserve Insurance Policy) or money for any Reserve Insurance Policy or money held by the Trustee in
the Reserve Fund; provided, that (i) in the case of a municipal bond debt service reserve fund policy or a surety
bond, bonds which are insured by the issuer thereof are rated in the highest rating category by Standard & Poor's
and Moody's Investors Service (collectively, the "Rating Agencies"), or, in the case of a letter of credit, the
unsecured debt obligations of the issuing bank thereof are rated in the highest short-term rating category by the
Rating Agencies; (ii) the sum of the money and face amount of any Reserve Insurance Policy in effect after such
substitution will be equal to the Reserve Requirement; and (iii) in the case of the substitution of a new Reserve
Insurance Policy for money or an existing Reserve Insurance Policy, the Trustee receives an opinion of Special
Counsel to the effect that such substitution will not adversely affect the exclusion from gross income for federal i
income tax purposes of interest with respect to the Certificates.
Pledge of Moneys in Funds. All amounts on deposit in the Delivery Cost Fund, the Certificate Payment
Fund, the Interest Fund, the Principal Fund, the Prepayment Fund and the Reserve Fund are irrevocably pledged to
the Owners of the Certificates as provided in the Trust Agreement. Such pledge will constitute a first and exclusive
lien on the Delivery Cost Fund,the Certificate Pay
ment Fund, the Interest Fund, the Principal Fund,the Prepayment
B-10
Fund and the Reserve Fund for the benefit of the Owners of the Certificates in accordance with the terms of the
Trust Agreement and of the Installment Purchase Agreement.
r
COVENANTS
Co oration and District to Perform Under Installment Purchase A reement. The Corporation and District
covenant and agree with the Owners of the Certificates to perform all obligations and dunes imposed them under
the Installment Purchase Agreement and,together with the Trustee,to enforce such Installment Purchassee Agreement
against the other party thereto in accordance with its terms.
The Corporation and the District will in all respects promptly and faithfully keep,perform and comply with ,
all the terms, provisions, covenants, conditions and agreements of the Installment Purchase Agreement to be kept, ,
performed and complied with by it.
The Corporation and the District agree not to do or permit anything to be done, or omit or refrain from
doing anything,in any case where any such act done or permitted to be done, or any such omission of or refraining
from action,would or might be a ground for cancellation or termination of the Installment Purchase Agreement.
Budgets. On or prior to the fifteenth day of each Fiscal Year,the District will certify to the Trustee that the
amounts budgeted for payment of Installment Payments are fully adequate for the payment of all Installment
Payments due under the Installment Purchase Agreement for such Fiscal Year. If the amounts so budgeted are not
adequate for the payment of Installment Payments due under the Installment Purchase Agreement, the District will
take such action as may be necessary to cause such annual budget to be amended, corrected or augmented so as to
include therein the amounts required to be raised by the District in the then ensuing Fiscal Year for the payment of
Installment Payments due under the Installment Purchase Agreement and will notify the Trustee of the proceedings
then taken or proposed to be taken by the District.
Tax Covenants. Notwithstanding any other provision of the Trust Agreement,absent an opinion of Special
Counsel that the exclusion from gross income of interest with respect to the Certificates will not be adversely
affected for federal income tax purposes, the District will comply with all applicable requirements of the Code
necessary to preserve such exclusion from gross income and specifically covenants, without limiting the generality
of the foregoing,as follows:
(a) Private Activity. The District will not take or omit to take any action or make any use of the
proceeds of the Certificates or of any other moneys or property which would cause the Certificates to be "private
activity bonds"within the meaning of Section 141 of the Code.
(b) Arbitrage. The District will make no use of the proceeds of the Certificates or of any other
amounts or property,regardless of the source, or take or omit to take any action which would cause the Certificates
to be "arbitrage bonds"within the meaning of Section 148 of the Code.
(c) Federal Guarantee. The District will make no use of the proceeds of the Certificates or take or
omit to take any action that would cause the Certificates to be "federally guaranteed" within the meaning of
Section 149(b)of the Code.
(d) Information Renortin . The District will take or cause to be taken all necessary action to comply
with the informational reporting requirement of Section 149(e)of the Code.
(e) Miscellaneous. The District will take no action inconsistent with its expectations stated in any
Tax Certificate executed with respect to the Certificates and will comply with the covenants and requirements stated
therein and incorporated by reference in the Trust Agreement.
The Trust Agreement and the covenants set forth therein will not be applicable to, and nothing contained
therein will be deemed to prevent the District from causing the Trustee to execute and deliver, Certificates the
interest with respect to which has been determined by Special Counsel to be subject to federal income taxation.
B-II
Accounting Records and Reports. The Trustee will keep or cause to be kept proper books of record and
account in which complete and correct entries will be made of all transactions made by it relating to the receipts,
disbursements, allocation and application of the Installment Payments, and such books will be available upon
reasonable prior notice for inspection by the District and by any Owner of Certificates, or his agent or
representative, at reasonable hours and under reasonable conditions. Each month, so long as the Certificates are
Outstanding, the Trustee will furnish to the District a statement covering receipts, disbursements, allocation and
application of amounts on deposit in the funds and accounts created under the Trust Agreement held by it.
Compliance with Trust AQ ment. The Trustee will not execute,or permit to be executed, any Certificates
in any ma
mter other than in accordance with the provisions of the Trust Agreement, and the District will not suffer
or permit any default by it to occur under the Trust Agreement, but will faithfully observe and perform all the
covenants,conditions and requirements thereof.
Observance of Laws and Reeidations. To the extent necessary to assure their performance under the Trust
Agreement, the Corporation and the District will well and truly keep, observe and perform all valid and lawful
obligations or regulations imposed on them by contract, or prescribed by any law of the United States of America,or
of the State, or by any officer, board or commission having jurisdiction or control, as a condition of the continued
enjoyment of any and every right, privilege or franchise owned or acquired by the Corporation or the District,
respectively, including its right to exist and carry on its business,to the end that such contracts,rights and franchises
will be maintained and preserved, and will not become abandoned, forfeited or in any manner impaired.
Compliance with Contracts. The District will comply with the terms, covenants and provisions, express or
implied, of all contracts for the use of the Project by the District, and all other contracts and agreements affecting or
involving the Project to the extent that the District is a party thereto.
Prosecution and Defense of Suits. The District will promptly, upon request of the Trustee or any
Certificate Owner, from time to time take such action as may be necessary or proper to remedy or cure any defect in
or cloud upon the title to the Broadband System or any part thereof, will prosecute all such suits, actions and other
proceedings as may be appropriate for such purpose and will indemnify and save the Trustee (including all of its
employees, officers and directors),the Corporation and every Certificate Owner harmless from all loss,cost, damage
and expense, including attorneys' fees, which they or any of them may incur by reason of any such defect, cloud,
suit,action or proceeding.
The District will defend against every suit, action or proceeding at any time brought against the Trustee
(including all of its employees, officers and directors), the Corporation or any Certificate Owner upon any claim
arising out of the receipt, application or disbursement of any of the Installment Payments or involving the rights of
the Trustee, the Corporation or any Certificate Owner under the Trust Agreement; provided that the Trustee, the
Corporation or any Certificate Owner at such party's election may appear in and defend any such suit, action or
proceeding. The District will indemnify and hold harmless the Trustee, the Corporation and the Certificate Owners
against any and all liability claimed or asserted by any person, arising out of such receipt, application or
disbursement, and will indemnify and hold harmless the Certificate Owners against any attorneys' fees or other
expenses which any of them may incur in connection with any litigation(including pre-litigation activities)to which
any of them may become a party by reason of ownership of Certificates. The District will promptly reimburse the
Corporation or any Certificate Owner in the full amount of any attorneys' fees or other expenses which the
Corporation or such Owner may incur in litigation or otherwise in order to enforce such partying rights under the
Trust Agreement or the Certificates, provided that such litigation will be concluded favorably to such party's contentions therein. 1
Recordation and Film . The Trustee, upon written direction of the District, will record, register, file,
renew,refile and re-record all such documents,including financing statements,as may be required by law in order to
maintain a security interest in the Trust Agreement and the Assignment Agreement, all in such manner, at such
times and in such places as may be required by, and to the extent permitted by,law in order fully to preserve, protect
and perfect the security of the Certificate Owners and the rights and security interests of the Trustee. The Trustee,
upon written direction of the District,will (subject to the Trust Agreement)do whatever else may be necessary or be
reasonably required in order to perfect and continue the lien of the Trust Agreement and the Assignment Agreement.
B-12
Notwithstanding anything to the contrary above, the Trustee will have no duty or liability whatsoever to
monitor or notify any party with respect to the timeliness, sufficiency or validity of any such recording,re-recording,
filing filing of continuation statements and the like with respect to the Trust Agreement; it being expressly
understood and agreed that the Trustee's duties under the Trust Agreement will be exclusively Hmited o following
the express written filing or recording instructions of the District, from time to time with respect to the above 1
described actions so long as the District will supply said recording or filing instruments.
f
taken by eminent domain proceedings (
or
Eminent Domain. If all or any part of the Broadband System is be
f
tening to exercise the power of eminent domain), the Net Procee
sold to a government threa ds therefrom will be
applied in the manner specified in the installment Purchase Agreement.
Further_ As_ s_ u_>rances. Whenever and so often as requested so to do by the Trustee or any Certificate d delivered all
such
F
the they be executed an
Corp
nd instruments,, documents ortrict will assurancesy execute , anddeliver omptly do orocause to b done all such other and
further things, as may be necessary or reasonably required in order g further and more fully vest in the Trustee and
the Certificate Owners all rights, interest, powers, benefits, privileges and advantages conferred or intended to be
conferred upon them by the Trust Agreement.
Continum The District covenants and agrees that it will comply with and carry out all of its
ficate to be executed and delivered by the District in connection
obligations under the iselos continuing disclosure certi
Certificates. Notwithstanding any other provision of the Trust Agreement, failure of the
with the delivery of the
District to comply with the continuing disclosure certificate will not be considered an of Default; however,any Owner or Beneficial Owner may take such actions as may be no
and appropriate, including seeking
mandate or specific performance by court order,to cause the District to comply with its obligations under the Trust
s of this paragraph, "Beneficial Owner" means any person which has or shares the power,
Agreement. For purpose
directly or indirectly, to make investment decisions concerning ownership of any Certificates (including persons
holding Certificates through nominees,depositories or other intermediaries).
DEFAULT AND LIMITATION OF LIABILITY
Notice of Non-Payment. In the event of delinquency in the payment of any Installment Payments due by
the District pursuant to the Installment Purchase Agreement, the Trustee will, after one business day following the
date upon which such delinquent Installment Payment was due, as soon as practicable give written notice of the
delinquency and the amount of the delinquency to the District and the Corporation.
Action on Default or Termination. Upon the occurrence of an Event of Default (as that term is defined in
the under the
Installment
suchcurchase ase duringgthe contin ance of ch event will constitute a such Event of Default the tTrustee or the s t Agreement, aOwners of notless thannd in ca
and
ficates at the time Outstanding will be entitled,upon notice in writing
majority in aggregate principal amount of Certi
to the District,to exercise the remedies provided to the Corporation in the Installment Purchase Agreement.
Upon declaration of the entire principal amount of the unpaid Installment Payments and the accrued interest
thereon to be due and payable immediately and provided such declaration is not rescinded or annulled, all in
accordance with the In Purchase Agreement, the Trustee will apply all moneys received as Installment
Payments and with
moneys held in any fund or account under the Trust Agreement in the following order:
First,to the payment, without preference or priority, and in the event of any insufficiency of such
reference, of the fees, costs and expenses of the
revenues ratably without any discrimination or p
ny, including reasonable compensation to its accounts and counsel;
Corporation and Trustee,if a
Second,to the payment of the Operation and Maintenance Costs;and
T_h_ird to the payment of the entire principal amount of the unpaid Installment Payments and the
unpaid principal amount of all Bonds and Contracts and the accrued interest thereon, with interest
B-13
on the overdue installments at the rate or rates of interest applicable to the Installment Payments
and such Bonds and Contracts if paid in accordance with their respective terms.
Other Remedies of the Trustee. The Trustee will have the right by mandamus or other action or proceeding
or suit at law or in equity to enforce its rights against the District or any board member, officer or employee thereof,
and to compel the District or any such board member, officer or employee to perform or carry out its or his duties
under law and the agreements and covenants required to be performed by it or him contained in the Trust
Agreement,
Non-Waiver. A waiver of any default or breach of duty or contract by the Trustee will not affect any
subsequent default or breach of duty or contract or impair any rights or remedies on any such subsequent default or
breach of duty or contract. No delay or omission by the Trustee to exercise any right or remedy accruing upon any
default or breach of duty or contract will impair any such right or remedy or will be construed to be a waiver of any
such default or breach of duty or contract or an acquiescence therein, and every right or remedy conferred upon the
Trustee by law or by the Trust Agreement may be enforced and exercised from time to time and as often as will be
deemed expedient by the Trustee.
If any action,proceeding or suit to enforce any right or to exercise any remedy is abandoned or determined
adversely to the Trustee,the Trustee and the District will be restored to their former positions, rights and remedies as
if such action,proceeding or suit bad not been brought or taken.
Remedies Not Exclusive. No remedy conferred upon or reserved to the Trustee is intended to be exclusive
of any ocher remedy, and each such remedy will be cumulative and will be in addition to every other remedy given
under the Trust Agreement existing in law or in equity or by statute or otherwise and may be exercised without
exhausting and without regard to any other remedy conferred by any law.
No Obligation by the District to Owner . Except for the payment of Installment Payments when due in
accordance with the Installment Purchase Agreement and the performance of the other covenants and agreements of
the District contained in said Installment Purchase Agreement and in the Trust Agreement, the District will have no
obligation or liability to the Owners of the Certificates with respect to the Trust Agreement or the execution,
delivery or transfer of the Certificates, or the disbursement of Installment Payments to the Owners by the Trustee;
provided however that nothing contained in this paragraph will affect the rights, duties or obligations of the Trustee
expressly set forth in the Trust Agreement.
Trustee Appointed Agent for Certificate-owners: Direction of Pro di s. The Trustee is appointed the
agent and attorney of the Owners of all Certificates outstanding under the Trust Agreement for the purpose of filing
any claims relating to the Certificates. The Owners of a majority in aggregate principal amount of the Certificates
Outstanding under the Trust Agreement will, upon tender to the Trustee of reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such direction, have the right to direct the method and
place of conducting all remedial proceedings by the Trustee, provided such direction will be in accordance with law
and the provisions of the Trust Agreement and that the Trustee will have the right to decline to follow any such
direction which in the opinion of the Trustee would be unjustly prejudicial to Certificate-owners not parties to such a
direction.
Power of Trustee to Control Proceedings In the event that the Trustee, upon the happening of an Event of }
Default, will have taken any action, by judicial proceedings or otherwise, pursuant to its duties under the Trust
Agreement, whether upon its own discretion or upon the request of the Owners of a majority in a
amount of the Certificates then outstanding pursuant to the Trust Agreement, it will have full power, in the exercise)
of its discretion for the best interests of the Owners of the Certificates, with respect to the continuance,
discontinuance, withdrawal, compromise, settlement or other disposal of such action; provided, however, that the z
Trustee will not, unless there no longer continues an Event of Default under the Trust Agreement, discontinue,
withdraw, compromise or settle, or otherwise dispose of, any litigation pending at law or in equity, if at the time
there has been filed with it a written request signed by the Owners of at least a majority in principal amount of the
Certificates Outstanding under the Trust Agreement opposing such discontinuance, with dra
settlement or other disposal of such litigation. wal, compromise,
B-14
Limitation on Certificate-Owners'Right to Sue. No Owner of any Certificate executed and delivered under £
the Trust Agreement will have the right to institute any suit,action or proceeding at law or in equity,for any remedy
under or upon the Trust Agreement, unless (a) such Owner will have previously given to the Trustee written notice
of the occurrence of an Event of Default thereunder; (b) the Owners of at least a majority in aggregate principal
amount of all the Certificates then Outstanding will have made written request upon the Trustee to exercise the
t
suit or proceeding in its own name; (c)said Owners will have tenderedto
powers granted or to institute such action,
the Trustee reasonable indemnity against the costs, expenses and liabilities to eq incurred p compliance with such
request; and(d)the Trustee will have refused or omitted to comply with such request for a period of sixty de t days
after such written request will have been received by, and said tender of indemnity will have been made to, the
Trustee.
comity and refusal or omission are declared, in every case, to be
Such notification, request, tender or ind
conditions precedent to the exercise by any Owner of Certificates of any remedy under the Trust Agreement: it
being understood and intended that no one or more Owners of Certificates will have any right in any manner
right under the Trust Agreement, except in the manner therein
whatever by his or their action to enforce any
provided, and that all proceedings at law or in equity to enforce any provision of the Trust Agreement will be
nst toted, had and maintained in the manner therein provided and for the equal benefit of all owners of the
Outstanding Certificates.
The right of any Owner of any Certificate to receive payment of the principal of (and premium,if any)and
interest with respect to such Certificate, as provided in the Trust Agreement, on and after the respective due dates
expressed in such Certificate, or to institute suit for the enforcement of any such payment on or after such respective
dates, will not be impaired or affected without the consent of such Owner,notwithstanding the foregoing provisions
of this paragraph or any other provision of the Trust Agreement.
No Obligation with Respect to Performance by Trustee. Neither the District nor the Corporation will have
any obligation or liability to any of the other parties to the Trust Agreement or to the Owners of the Certificates with
respect to the performance by the Trustee of any duty imposed upon it under the Trust Agreement.
No Liability to Owners for Payment. The Corporation will not have any obligation or liability to the
Owners of the Certificates with respect to the payment of the Installment Payments by the District when due,or with
respect to the performance by the District of any other covenant made by it in the Installment Purchase Agreement
or in the Trust Agreement. Except as provided in the Trust Agreement, the Trustee will not have any obligation or
liability to the Owners of the Certificates with respect to the payment of the Installment Payments by the District
when due, or with respect to the performance by the District of any other covenant made by it in the Installment
Purchase Agreement or in the Trust Agreement.
No Responsibility for Sufficiency. The Trustee will not be responsible for the sufficiency of the Trust
Agreement, the Installment Purchase Agreement, or of the assignment made to it by the Assignment Agreement of
rights to receive Installment Payments pursuant to the Installment Purchase Agreement, or the value of or title to the
Project. The Trustee will not be responsible or liable for selection or liquidation of investments or any loss suffered
in connection with any investment of funds made by it under the terms of and in accordance with the Trust
Agreement.
Indemnification of Trustee. The District will indemnify the Trustee(including all of its employees,officers
and directors)and hold it harmless against any loss, liability, expenses or advances, including but not limited to fees
and expenses of counsel and other experts,incurred or made without negligence or willful misconduct on the part of
the Trustee, (i) in the exercise and performance of any of the powers and duties under the Trust Agreement or under
the Installment Purchase Agreement by the Trustee, (ii) relating to or arising out of the Project, or the conditions,
occupancy, use, possession, conduct or management of, or work done in or about, or from the planning, design,
acquisition, installation or construction of the Project or any part thereof, or (iii)arising out of or relating to any
untrue statement or alleged untrue statement of any material fact or omission or alleged omission to state a material
fact necessary to make the statements made, in light of the circumstances under which they were made, not
misleading in any official statement or other offering circular utilized in connection with the sale of the Certificates,
including the costs and expenses of defending itself against any claim of liability ar sing under the Trust Agreement.
B-15
Such indemnity will survive payment of the Certificates and discharge of the Trust Agreement or resignation or
removal of the Trustee.
THE TRUSTEE
Trustee: Duties Removal and Resignation. By executing and delivering the Trust Agreement,the Trustee
accepts the duties and obligations of the Trustee provided in the Trust Agreement, but only upon the terms and
conditions set forth in the Trust Agreement.
The District may, by written request to the Trustee, remove the Trustee and appoint a successor Trustee;
provided, however, that if the District is in default under the Installment Purchase Agreement, the Owners of a
majority in aggregate principal amount of all Certificates Outstanding may, by written request to the Trustee,
remove the Trustee and appoint a successor Trustee. Any such successor will be a bank or trust company doing
business and having a corporate trust office in California, which has(or the parent holding company of which has)a
combined capital (exclusive of borrowed capital) and surplus of at least twenty million dollars ($20,000,000) and
subject to supervision or examination by federal or state authorities. If such bank or trust company publishes a
report of condition at least annually, pursuant to law or to the requirements of any supervising or examining
authority above referred to, then for the purposes of the Trust Agreement, the combined capital and surplus of such
bank or trust company will be deemed to be its combined capital and surplus as set forth in its most recent report of
condition so published.
The Trustee may at any time resign by giving written notice to the District and by giving to the Certificate
Owners notice of such resignation by mail at the addresses shown on the registration books maintained by the
Trustee. Upon receiving such notice of resignation, the District will promptly appoint a successor Trustee by an
instrument in writing; provided, however, that in the event that the District does not appoint a successor Trustee
within thirty (30) days following receipt of such notice of resignation, the resigning Trustee may at the expense of
the District petition the appropriate court having jurisdiction to appoint a successor Trustee. Any resignation or
removal of the Trustee and appointment of a successor Trustee will become effective upon written acceptance of
appointment by the successor Trustee.
Protection of the Trustee. The Trustee will be protected and will incur no liability whatsoever in acting or
refraining from acting or proceeding in good faith upon any resolution, notice, telegram, request, consent, waiver,
certificate, statement, affidavit, voucher, bond, requisition or other paper or document which it will in good faith
believe to be genuine and to have been adopted, executed or delivered by the proper party or pursuant to any of the
provisions of the Trust Agreement, and the Trustee will be under no duty to make any investigation or inquiry as to
any statements contained or matters referred to in any such instrument, but may accept and rely upon the same as
conclusive evidence of the truth and accuracy of such statements. The Trustee will not be bound to recognize any
person as an Owner of any Certificate or to take any action at the request of any such person unless such Certificate
will be deposited with the Trustee or satisfactory evidence of the ownership of such Certificate will be furnished to
the Trustee. The Trustee may consult with counsel, who may be counsel to the Corporation or the District, with
regard to legal questions, and the opinion of such counsel will be full and complete authorization and protection in
respect of any action taken or suffered by it under the Trust Agreement in good faith in accordance therewith.
Whenever in the administration of its duties under the Trust Agreement, the Trustee will deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action thereunder, such matter(unless other evidence in respect thereof be specifically prescribed) will be deemed to be conclusively proved and
established by a certificate of the Corporation or the District and such certificate will be full warranty to the Trustee f for any action taken or suffered under the provisions of the Trust Agreement upon the faith thereof, but in its
discretion the Trustee may (but will have no duty), in lieu thereof, accept other evidence of such matter or ma
require such additional evidence as to it may seem reasonable. y
The Trustee may buy, sell, own, hold and deal in any of the Certificates provided pursuant to the Trust
Agreement, and may join in any action which any Owner may be entitled to take with like effect as if the Trustee
were not a party to the Trust Agreement. The Trustee, either as principal or agent, may also engage in or be
interested in any financial or other transaction with the District or the Corporation, and may act as depository,
B-16
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4
trustee, or agent for any committee or body of Owners of Certificates or of obligations of the Corporation or the
District as freely as if it were not Trustee under the Trust Agreement. r
The Trustee may, to the extent reasonably necessary, execute any of the trusts or powers and perform the
e entitled to
e 5
duties required of it under the Trust Agreement by or through attorneys, agents, or receivers, and will be
advice of counsel concerning all matters of trust and its duties thereunder, and th Trustee will not be answerable for
the default or misconduct of any such attorney, agent or receiver selected by it with reasonable care. The Trustee
the exercise of any discretion or power under the Trust Agreement or in the performance
will not be answerable for
of its duties thereunder or for anything whatever in connection with the funds and accounts established thereunder,
except only for its own willful misconduct or negligence. $
The recitals, statements and representations by the District or the Corporation contained in the Trust e
Agreement or in the Certificates will be taken and construed as made by and on the part of the District or
Corporation and not by the Trustee and the Trustee does not assume, and will not have, any responsibility or
obligations for the correctness of any thereof 's
notes,and only such duties as are specifically set forth in the Trust
The Trustee undertakes to perform such d
E
Agreement and no implied duties or obligations will be read into the Trust Agreement against the Trustee.
No provision in the Trust Agreement will require the Trustee to risk or expend its own funds or otherwise
incur any financial liability in the performance of any of its duties thereunder if it will have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk or liability is not assured to it.
In accepting the trust created by the Trust Agreement,the Trustee acts solely as Trustee for the Owners and
not in its individual capacity and all persons, including without limitation the Owners and the District or the
Corporation having any claim against the Trustee arising from the Trust Agreement will look only to the funds and
accounts held by the Trustee thereunder for payment except as otherw7se provided therein. Under no circumstances
will the Trustee be liable in its individual capacity for the obligations evidenced by the Certificates.
The Trustee makes no representation or warranty, express or implied as to the title, value, design,
compliance with specifications or legal requirements, quality, durability, operation, condition, merchantability or
fitness for any particular purpose or fitness for the use contemplated by the District or the Corporation of the Project.
e be liable for incidental, ect ecial or
with or
In no event will arising from the tinst installment Purchase Agreement or the he TrusterTrustAgrement forthetexisial dtenceg furnishing amaes Orin furnishinguse of the
Project.
l not be deemed to have knowledge of any Event of Default under the Trust Agreement or
The Trustee wil
under the Installment Purchase Agreement unless and until it will have actual knowledge thereof or have received
notice thereof at its cur trust office at the address set forth in the Trust Agreement. The Trustee will, during
the existence of any Event of Default (which has not been cured) use the same degree of care and skill in their
exercise,as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
The Trustee will not be accountable for the use or application by the District, or the Corporation or any
other party of any funds which the Trustee has released in accordance with the terms of the Trust Agreement.
The Trustee shall not be considered in breach of or in default in its obligations under the Trust Agreement
or progress in respect thereto in the event of enforced delay ("unavoidable delay") in the performance of such
obligations due to unforeseeable causes beyond its control and without its fault or negligence, including, but not
limited to, acts of god or the public enemy or terrorists, acts of a government, acts of the other party, fires, floods,
epidemics,quarantine restrictions, strikes, freight embargoes, earthquakes,explosion,mob violence, riot,inability to
procure or general sabotage or rationing of labor,'paequrty or others relating t zoning or other goverrnmentaes, sources of energy,material or la von or plies in in
open market,litigation or arbitration involving a partyor
saction pertaining to tbuppliers or sub onttractors duet suchcauses ous or similar event beyotion and lnd severe
tof the Trustees of
B-17
The Trustee agrees to accept and act upon facsimile transmission of written instructions and/or direction
pursuant to this Trust Agreement provided, however, that: (a) subsequent to such facsimile transmission of written
instructions and/or directions, (b) such originally executed instructions and/or directions shall designed by a person
as may be designated and authorized to sign for the party signing such instructions and/or direction, and (c) the
trustee shall have received a current incumbency certificate containing the specimen signature of such designated
person.
Merger or Consolidation. Any company into which the Trustee may be merged or converted or with which
it may be consolidated or any company resulting from any merger, conversion or consolidation to which it will be a
party or any company to which the Trustee may sell or transfer all or substantially all of its corporate trust business
(provided such company is eligible under the Trust Agreement), will be the successor to the Trustee without the
execution or filing of any paper or further act,anything therein to the contrary notwithstanding.
AMENDMENT OF TRUST AGREEMENT
Amendments Permitted.
(a) The Trust Agreement and the rights and obligations of the District and of the Owners of the
Certificates and of the Trustee may be modified or amended at any time by an amendment thereto which will
become binding when the written consents of the Owners of a majority in aggregate principal amount of the
Certificates then Outstanding, exclusive of Certificates disqualified as provided in the Trust Agreement, will have
been filed, with the Trustee. No such modification or amendment will (1) extend the stated maturities of the
Certificates, or reduce the rate of interest or yields-to-maturity, as the case may be, represented thereby, or extend
the time of payment of interest, or reduce the amount of principal represented thereby, or reduce any premium
payable on the prepayment thereof, without the consent of the Owner of each Certificate so affected, or(2) reduce
the aforesaid percentage of Owners of Certificates whose consent is required for the execution of any amendment or
modification of the Trust Agreement, or(3)modify any of the rights or obligations of the Trustee or the Corporation
without its written consent thereto, or(4)modify the limitations on the liability of the District hereunder without the
consent of the Nevada County Local Agency Formation Commission.
(b) The Trust Agreement and the rights and obligations of the Corporation and the District and of the
Owners of the Certificates may also be modified or amended at any time by an amendment thereto which will
become binding upon adoption, without the consent of the Owners of any Certificates, but only to the extent
permitted by law and only for any one or more of the following purposes—
(i) to add to the covenants and agreements of the Corporation or the District contained in the
Trust Agreement other covenants and agreements thereafter to be observed or to surrender any right or power
therein reserved to or conferred upon the Corporation or the District, and which will not adversely affect the
interests of the Owners of the Certificates;
(ii) to cure, correct or supplement any ambiguous or defective provision contained in the
Trust Agreement or in regard to questions arising under the Trust Agreement, as the Corporation or the District may
deem necessary or desirable and which will not adversely affect the interests of the Owners of the Certificates;and
z
(in) to make such other amendments or modifications as may be in the best interests of the
Owners of the Certificates.
any action taken as proviEndorsement or Re lacement of Certificates After Amendment or Supplement. After the effective date of
ded in the Trust Agreement, the Trustee may determine that the Certificates may bear a
notation by endorsement in form approved by the Trustee as to such action, and in that case upon demand of the
Trustee to the Owner of any Outstanding Certificate and presentation of such Owner's Certificate for such purpose
at the principal corporate trust office of the Trustee a suitable notation as to such action will be made on such
Certificate. If the Trustee will so determine, new Certificates so modified as in the opinion of the Trustee will be `
necessary to conform to such action will be prepared, and in that case upon demand of the Trustee to the Owner of
any Outstanding Certificates such new Certificates will be exchanged at the principal corporate trust office of the
t
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3
3
5
Trustee without cost to each Owner for Certificates then Outstanding upon surrender of such Outstanding
Certificates. i
r
Amendment of Particular Certificates. The provisions of the Trust Agreement will not prevent any Owner F
from accepting any amendments to the particular Certificates held by him or her,provided that due notation thereof
is made on such Certificates.
F
DEFEASANCE
Discharge of Trust Agreement. When the obligations of the District under the In
Purchase
Agreement will cease pursuant to the Installment Purchase Agreement (except for the right of the Trustee and the
obligation of the District to have the money and Permitted Investments mentioned therein applied to the payment of
Installment Payments as therein set forth and the obligation to apply moneys on deposit in the Rebate Fund as
reement), then and in that case the obligations created by the Trust Agreement will
provided in the Trust Ag
ept for the obligation of the District to direct the Trustee to apply
thereupon cease, terminate and become void exc
money on deposit in the Rebate Fund as provided therein which will continue until such moneys are so applied and
stee to apply such moneys and Permitted
the right of the Owners to have applied and the obligation of the Tru
Investments to the payment of the Certificates as therein set forth,and subject to application of moneys on deposit in
the Rebate Fund as provided in the Trust Agreement, the Trustee will turn over to the District, after provision for
payment of amounts due the Trustee thereunder, as an overpayment of Installment Payments, any surplus in the
funds or accounts other than moneys and
Certificate Payment Fund and all balances remaining in any other
Permitted Investments held for the payment of the Certificates at maturity or on prepayment, which moneys and
permitted Investments will continue to be held by the Trustee in trust for the benefit of the Owners and will be
applied by the Trustee to the payment,when due,of the principal or interest and premium,if any,represented by the
Certificates,and after such payment,the Trust Agreement will become void.
If moneys or securities described in clause (i), (a) or (d) of the definition of Permitted Investments are
deposited with and held by the Trustee as provided in the Trust Agreement, the Trustee will within thirty (30) days
after such moneys or Permitted Investments will have been deposited with it, mail a notice, first class postage
e T
ant to the
prepaid, to the Owners at the addresses listed on the registration books kept by therustedescription u the moneys Trust
Agreement, setting forth (a) the date fixed for prepayment of the Certificates, (b)
securities described in clause (i), (a) or(d) of the definition of Permitted Investments so held by it, and(c) that the
Trust Agreement has been released in accordance with the provisions of the Trust Agreement.
Deposit of Mone or Securities with Trustee. Whenever in the Trust Agreement or the Installment
Purchase Agreement it is provided or permitted that there be deposited with or held in trust by the Trustee money or
securities in the necessary amount to pay or prepay any Certificates, the money or securities to be so deposited or
held may include money or securities held by the Trustee in the funds and accounts established pursuant to the Trust
Agreement will be (a)lawful money of the United ed States of America in an amount equal to the principal amount
represented it such Certificates and all unpaid interest represented thereby to maturity, except that, in the case of
Certificates which are to be prepaid prior to maturity and in respect of which notice of such prepayment will have
been given as in the Trust Agreement provided or provision satisfactory to the Trustee will have been made for the
giving of such notice, the amount to be deposited or held will be the principal amount or Prepayment Price and all
unpaid interest to such date of prepayment if any, represented by such Certificates; or (b)non-callable securities
described in clause(i), (a) or(d) of the definition of Permitted Investments which will provide money sufficient to
pay the principal at maturity or upon prepayment plus all accrued interest to maturity or to the prepayment date, as
the case may be,represented by the Certificates to be paid or prepaid, as such amounts become due,plus premium,
id prior to the maturity thereof, notice of such
if any, Trustee will
provided that, in the case of Certificates which are to be prepa
prepayment will have been given as in the Trust Agreement provided or provision satisfactory to the
have been made for the giving of such notice; provided, in each case, that the Trustee will have been irrevocably
instructed(by the terms of the Trust Agreement and the Installment Purchase Agreement or by Written Request of
s to the payment of such principal or Prepayment Price and interest
the District) to apply such money or securitie
represented by such Certificates.
Unclaimed Moneys. Anything contained in the Trust Agreement to the contrary notwithstanding, any
moneys held by the Trustee in trust for the payment and discharge of the interest, principal or Prepayment Price
B-19
represented by any of the Certificates which remain unclaimed for two years after the date of deposit of such
moneys if deposited with the Trustee after the date when the interest, principal or Prepayment Price represented by
such Certificates have become payable, will at the Written Request of the District be repaid by the Trustee to the
District as its absolute property free from trust, and the Trustee will thereupon be released and discharged with
respect thereto and the Owners will look only to the District for the payment of the interest and principal or
Prepayment Price represented by much Certificates; provided,however, that before being required to make any such
payment to the District, the Trustee will, at the written request and expense of the District, first mail a notice to the
owners of the Certificates so payable that such moneys remain unclaimed and that after a date named in such notice,
which date will not be less than thirty (30) days after the date of the mailing of such notice, the balance of such
moneys then unclaimed will be returned to the District.
MISCELLANEOUS
Benefits of Trust Agreement Limited to Parties. Nothing contained in the Trust Agreement, expressed or
implied, is intended to give to any person other than the District, the Trustee, the Corporation and the Owners any
claim,remedy or right under or pursuant thereto, and any agreement, condition, covenant or term required therein to
be observed or performed by or on behalf of the District will be for the sole and exclusive benefit of the Trustee,the
Corporation and the Owners.
Successor Deemed Included in all References to Predecessor. Whenever either the District, the
Corporation or the Trustee or any officer thereof is named or referred to in the Trust Agreement, such reference will
be deemed to include the successor to the powers, duties and functions that are presently vested in the District, the
Corporation or the Trustee or such officer, and all agreements, conditions, covenants and terms required thereby to
be observed or performed by or on behalf of the District, the Corporation or the Trustee or any officer thereof will
bind and inure to the benefit of the respective successors thereof whether so expressed or not.
Execution of Documents by Owners. Any declaration, request or other instrument which is permitted or
required in the Trust Agreement to be executed by Owners may be in one or more instruments of similar tenor and
may be executed by Owners in person or by their attorneys appointed in writing. The fact and date of the execution
by any Owner or such Owner's attorney of any declaration, request or other instrument or of any writing appointing
such attorney may be proved by the certificate of any notary public or other officer authorized to take
acknowledgments of deeds to be recorded in the state or territory in which he or she purports to act that the person
signing such declaration,request or other instrument or writing acknowledged to him or her the execution thereof, or
by an affidavit of a witness of such execution duly sworn to before such notary public or other officer, or by such
other proof as the Trustee may accept which it may deem sufficient.
The ownership of any Certificates and the amount,payment date,number and date of own ng the same may
be proved by the books required to be kept by the Trustee pursuant to the provisions of the Trust Agreement.
Any declaration, request or other instrument in writing of the Owner of any Certificate will bind all future
Owners of such Certificate with respect to anything done or suffered to be done by the District or the Trustee in
good faith and in accordance therewith.
Disqualified Certificates. Certificates owned or held by or for the account of the Corporation or the District
(but excluding Certificates held in any pension or retirement fund) will not be deemed Outstanding for the purpose
of any consent or other action or any calculation of Outstanding Certificates provided for in the Trust Agreement,
and will not be entitled to consent to or take any other action provided for in the Trust Agreement.
z
The Trustee may adopt appropriate regulations to require each Owner of Certificates, before his or her
consent provided for in the Trust Agreement will be deemed effective, to reveal if the Certificates as to which such
consent is given are disqualified as provided in the Trust Agreement.
Waiver of Personal Liability. No director, officer or employee of the District or the Corporation will be
individually or personally liable for the payment of the interest, principal or the prepayment premiums, if any,
represented by the Certificates, but nothing contained in the Trust Agreement will relieve any director, officer or
3
B-20 #
r
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ct or Corporation from the performance of any official duty provided by any applicable
employee of the Distr
Provisions of law or by the Installment Purchase Agreement or by the Trust Agreement.
Acquisition of Certificates
District, whether by purchase or gift b the District Destruction of Certificates. All Certificates acquired by the
or otherwise will be surrendered to the Trustee for cancellation. Whenever in
the Trust Agreement provision is made for the cancellation by the Trustee of any Certificates, the Trustee will
t deliver a certificate of such destruction to the District.
destroy such Certificates and upon written reques
Funds an,___._.__d ACCOunts. Any fund required by the Trust Agreement to be established and maintained by the
unting
recor
he
Trustee may be estubloses of sn account,
a h recordsmaintaineaanytauditsohereof and ahe accny
oetorts orsstatementstee either aw with res a funs ector atheret be s
and may, for the p rp
Y P p
treated either as a fund or as an account; but all such records with respect to all such funds will at all times be
trust industry practices and with due regard for the protection of
maintained in accordance with sound corporate the
security of the Certificates and the rights of every owner thereof.
Partial Invalidity,+. If any one or more of the agreements, conditions, covenants or terms required i the
Trust Agreement to be observed or performed by or on the part of the District,the Corporation or the Trustee ee will be
contrary to law, then such agreement or agreements, such condition or conditions, such covenant or covenants or
such term or terms will be null and void and will be deemed separable from the remaining agreements, conditions,
covenants and terms thereof and will in noway affect the validity thereof or of the Certificates,and the owners will
retain all the benefit, protection and security afforded to them under any applicable provisions of law. The District,
the Corporation and the Trustee declare that they would have executed the Trust Agreement, and each and every
other article, section, h
on, paragraph, subdivision, sentence, clause and phrase thereof and would have authorized the
one or more articles,
execution and delivery of the Certificates pursuant thereto irrespective of the fact that anyclause$ or
se circumstances paragrapy beshubd
e dttosbe unconstitutional,unenforceable orihrases nvalidreof r the application thereof to any person or
California Law. THE TRUST AGREEMENT WILL BE CONSTRUED AND GOVERNED IN
ACCORDANCE WITH THE LAWS OE THE STATE.
nything contained in the Trust Agreement,the
Liabilit of District Limited to Revenues. Notwithstanding a
District shall not be required to advance any moneys derived from any source of income other than the Revenues for
the payment of amounts due hereunder and/or for the performance of any agreements or covenants required to be
performed by it contained in the Trust Agreement and is prohibited from using any other District moneys for any
such purpose.
[The Remainder of this Page Intentionally Left Blank]
B-21
APPENDIX C
FORM OF OPINION OF SPECIAL COUNSEL
Upon execution and delivery of the Certificates, Stradling Yocca Carlson & Rauth, a Professional
Corporation, Special Counsel,proposes to render its final approving opinion in substantially the following form:
November_,2004
Truckee Donner Public Utility District
Truckee,CA
Members of the Board of Directors:
We have acted as Special Counsel to the Truckee Donner Public Utility District (the "District') in
connection with the execution and delivery of$24,000,000 aggregate principal amount of Revenue Certificates of
Participation, Series 2004, dated November_, 2004 (the "Certificates"), each evidencing and representing an
interest of the registered owner thereof in the right to receive Installment Payments (as that term is defined in the
Trust Agreement hereinafter mentioned) under and pursuant to that certain Installment Purchase Agreement (the
"Agreement'), dated as of November 1, 2004, by and between the District and the Truckee Donner Public Utility
District Financing Corporation (the "Corporation"), which right to receive such Installment Payments has been
assigned by the Corporation to BNY Western Trust Company, as trustee(the "Trustee"), pursuant to the Assignment
Agreement, dated as of November 1, 2004, by and between the Trustee and the Corporation. The Certificates have
been executed by the Trustee pursuant to the terms of the Trust Agreement, dated as of November 1, 2004 (the
"Trust Agreement'),by and among the District,the Corporation and the Trustee.
In connection with our representation we have examined a certified copy of the proceedings relating to the
Certificates. As to questions of fact material to our opinion,we have relied upon the certified proceedings and other
certifications of public officials furnished to us without undertaking to verify the same by independent
investigations.
Based upon the foregoing and after examination of such questions of law as we have deemed relevant in
the circumstances,but subject to the limitations set forth herein,we are of the opinion that:
I. The proceedings show lawful authority for the execution and delivery by the District of the
Agreement and the Trust Agreement under the laws of the State of California now in force, and the Agreement and
the Trust Agreement have been duly authorized, executed and delivered by the District, and, assuming due
authorization, execution and delivery by the Trustee and the Corporation, as appropriate, are valid and binding
obligations of the District enforceable against the District in accordance with their respective terms.
2. The Certificates, assuming due execution and delivery by the Trustee, are entitled to the benefits
of the Trust Agreement, and the proceeds of the Certificates may be used by the District as contemplated in the
transaction described in the Private Placement Memorandum related to the Certificates,dated September_,2004.
3. The obligation of the District to make the Installment Payments from Net Revenues(as defined in
the Agreement) is an enforceable obligation of the District and does not constitute a debt of the District, or of the
State of California or of any political subdivision thereof in contravention of any constitutional or statutory debt
limit or restriction, and does not constitute an obligation for which the District is obligated to levy or pledge any
form of taxation or for which the District has levied or pledged any form of taxation.
4. Under existing statutes, regulations, rulings and judicial decisions, the portion of each Installment
Payment constituting interest is excluded from gross income for federal income tax purposes and is not an item of
tax preference for purposes of calculating the federal alternative minimum tax imposed on individuals and
corporations; however, it should be noted that, with respect to corporations,the portion of each Installment Payment
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constituting interest may be included as an adjustment in the calculation of alternative minimum taxable income, z
tive minimum tax liability of corporations.
which may affect the alterna
5. The portion of each Installment Payment constituting interest is exempt from State of California
personal income tax.
s
6. The difference between the issue price of
Certificate
and a substantial
the statedfiredemption pricerst price at which
at maturity with
amount of the Certificates of a maturity is to be sold to the public)
respect to such Certificate constitutes original issue discount. Original issue discount accrues under a constant yield
method, and original issue discount will accrue to a Certificate Owner before receipt of cash attributable to such
discount deemed received by a Certificate Owner
excludable income. The amount of original issue will increase the
Owner's basis in the applicable Certificate. Original issue discount that accrues to the Certificate Owner is exclude 3
from the gross income of such owner for federal income tax purposes, is not an item of tax preference for pure
of the federal alternative minimum tax imposed on individuals and corporations, and is exempt from State of
California personal income tax. x
The opinions expressed herein as to the exclusion from gross income of the portion of each Installment
Payment constituting interest (and original issue discount) are based upon certain representations of fact and
certifications made by the District and others and are subject to the condition that the District complies with all
requirements of the Internal Revenue Code of 1986, as amended (the "Code"), that must be satisfied subsequent to
the execution and delivery of the Certificates to assure that such portion of each Installment Payment constituting
interest (and original issue discount) will not become includable in gross income for federal income tax purposes.
Failure to comply with such requirements of the Code might cause the portion of each Installment Payment
constituting interest (and original issue discount) to be included in gross income for federal income tax purposes
retroactive to the date of execution and delivery of the Certificates. The District has covenanted to comply with all
such requirements.
The opinions expressed herein may be affected by actions taken (or not taken) or events occurring(or not
occurring) after the date hereof. We have not undertaken to determine, or to inform any person,whether any such
actions or events are taken or do occur. The Trust Agreement,the Agreement and the Tax Certificate permit certain
actions to be taken or to be omitted if a favorable opinion of Special Counsel is provided with respect thereto. No
opinion is expressed herein as to the exclusion from gross income of the portion of each Installment Payment
constituting interest(and original issue discount) for federal income tax purposes with respect to any Certificate if
any such action is taken or omitted based upon the opinion or advice of counsel other than ourselves. Other than
expressly stated herein,we express no other opinion regarding tax consequences with respect to the Certificates.
The opinions expressed herein are based upon our analysis and interpretation of existing laws, regulations,
matters not directly addressed by such authorities. We call attention
rulings and judicial decisions and cover certain
to the fact that the rights and obligations under the Trust Agreement,the Agreement, and the Certificates are subject
to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws affecting
creditors' rights,to the application of equitable principles if equitable remedies are sought,to the exercise of judicial
discretion in appropriate cases and to limitations on legal remedies against public agencies in the State of California.
Respectfully submitted,
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APPENDIX D
INFORMATION CONCERNI.NG DTC
The information concerning DTC set forth herein has been supplied by DTC, and the District assumes no
responsibility for the accuracy thereof.
DTC is a limited-purpose trust company organized under the New York Banking Law, a "banking
organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934, DTC holds securities
that its participants ("Participants') deposit with DTC. DTC also facilitates the settlement among Participants of
securities transactions, such as transfers and pledges, in deposited securities through electronic computerized
book-entry changes in Participants' accounts, thereby eliminating the need for physical movement of securities
certificates. "Direct Participants" include securities brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations. DTC is owned by a number of its Direct Participants and by the New
York Stock Exchange, Inc, the American Stock Exchange, Inc., and the National Association of Securities Dealers,
Inc. Access to the DTC system is also available to others such as securities brokers and dealers, banks, and trust
companies that clear through or maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The Rules applicable to DTC and its Participants are on file with the Securities
and Exchange Commission.
Purchases of the Certificates under the DTC system must be made by or though Direct Participants, which
will receive credit for the Certificates on DTC's records. The ownership interest of each actual purchaser of each
Certificate (a "Beneficial Owner") is in turn to be recorded on the Direct and Indirect Participants' records.
Beneficial Owners will not receive written confirmation from DTC of their purchase, but Beneficial Owners are
expected to receive written confirmations providing details of the transaction, as well as periodic statements of their
holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction.
Transfers of ownership interests in the Certificates are to be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing
their ownership interests in Certificates, except in the event that use of the book-entry system for the Certificates is
discontinued.
To facilitate subsequent transfers, all Certificates deposited by Participants with DTC are registered in the
name of DTC's partnership nominee, Cede& Co. The deposit of Certificates with DTC and their registration in the
name of Cede& Co. effect no change in beneficial ownership. DTC has no knowledge of the actual Beneficial
Owners of the Certificates; DTC's records reflect only the identity of the Direct Participants to whose accounts such
Certificates are credited, which may or may not be the Beneficial Owners. The Participants will remain responsible
for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to
Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time.
Prepyment nices shall be
t to Cede&Co if less than all
f the
rtificates within an issue are bng
prepaid, DTCas p actice is to determine eby lot he amount of the interest oof each eDirect Participant in such issue to
be redeemed.
Neither DTC nor Cede& Co. will consent or vote with respect to Certificates. Under its usual procedures,
DTC mails an Omnibus Proxy to the District as soon as possible after the record date. The Omnibus Proxy assigns
Cede& CO.'s consenting or voting rights to those Direct Participants to whose accounts the Certificates are credited
on the record date(identified in a listing attached to the Omnibus Proxy).
Payments on the Certificates will be made to DTC. DTC's practice is to credit Direct Participants'
accounts on the payment date in accordance with their respective holdings shown on DTC's records unless DTC has
reason to believe that it will not receive payment on a payment date. Payments by Participants to Beneficial Owners
D-1
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will be governed by standing instructions and customary practices,as is the case with securities held for the accounts
sibility of such Participant and not
of customers in bearer form or registered in"street name," and will be the respon
of DTC, the Trustee, or the District, subject to any statutory or regulatory requirements as may be in effect from
time to time. Payments to DTC are the responsibility of the Trustee, disbursement of such payments to Direct
Participants shall be the responsibility of DTC, and disbursement of such payments to the Beneficial Owners shall s
be the responsibility of Direct and Indirect Participants.
ces that DTC Direct Participants or DTC
The District and the Trustee cannot and do not give any asstuan
Indirect Participants will distribute to the Beneficial Owners(i)principal and interest with respect to the Certificates,
(ii)certificates representing an ownership interest in or other confirmation of ownership interests in the Certificates,
}
or(iii)prepayment or other notices sent to DTC or Cede& Co.,its nominee, as registered owner of the Certificates,
or that they will do so on a timely basis or that DTC, DTC Direct Participants or DTC Indirect Participants will t
service and act in the manner described in the Pr vale Placement Memorandum.
ificate is registered
The District and the Trustee shall be entitled to treat the person in whose name any Cert
cable laws, notwithstanding
as the Certificate Owner thereof for all purposes of the Trust Agreement and any at a
any notice to the contrary received by the Trustee or the District; and the District and the Trustee shall have no
responsibility for transmitting payments to,communication with,notifying,or otherwise dealing with any Beneficial
Owners of the Certificates. Neither the District nor the Trustee will have any responsibility or obligations,legal or
Otherwise,to the Beneficial Owners or to any other party including DTC or its successor(or substitute depository or
its successor), except for the registered owner of any Certificate.
DTC may discontinue providing its services as securities depository with respect to the Certificates at any
time by giving notice to the District or the Trustee. Under such circumstances, in the event that a successor
securities depository is not obtained, Certificates are required to be printed and delivered.
THE TRUSTEE, AS LONG AS A BOOK-ENTRY ONLY SYSTEM IS USED FOR THE
CERTIFICATES, WILL SEND ANY NOTICE OF PREPAYMENT OR OTHER NOTICES TO OWNERS ONLY
TO DTC. ANY FAILURE OF DTC TO ADVISE ANY DTC PARTICIPANT,OR OF ANY DTC PARTICIPANT
F ANY NTENT OR EFFECT WILL NOT
TO NOTIFY
THE VALIDITY OF SUICIAL FFICIENCY 0 OF THEOPROCEED PROCEEDINGS RETICE AND ITS LATING TO THE PREPAYMENT
OF THE CERTIFICATES CALLED FOR PREPAYMENT OR OF ANY OTHER ACTION PREMISED ON
SUCH NOTICE.
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APPENDIX E
FORM OF CONTINUING DISCLOSURE CERTIFICATE
This Continuing Disclosure Certificate (the "Disclosure Certificate") is executed and delivered by the
Truckee Donner Public Utility District(the `District')in connection with the execution and delivery of$24,000,000
Revenue Certificates of Participation, Series 2004 (the "Certificates"). The Certificates are being executed and
delivered pursuant to a Trust Agreement,dated as of November 1, 2004(the"Trust Agreement'), by and among the
District, the Truckee Donner Public Utility District Financing Corporation (the "Corporation") and BNY Western
Trust Company as trustee(the "Trustee"). The District covenants and agrees as follows:
1. Pt t se of this Disclosure Certificate This Disclosure Certificate is being executed and delivered
by the District for the benefit of the Holders and Beneficial Owners of the Certificates and in order to assist the
Participating Placement Agent in complying with the Rule.
2. Definitions In addition to the definitions set forth in the Trust Agreement, which apply to any
capitalized term used in this Disclosure Certificate unless otherwise defined in this Section,the following capitalized
terms shall have the following meanings:
"Annual Report" shall mean any Annual Report provided by the District pursuant to, and as described in,
Sections 3 and 4 of this Disclosure Certificate.
"Beneficial Owner" shall mean any person which (a) has the power, directly or indirectly, to vote or
consent with respect to, or to dispose of ownership of, any Certificates (including persons holding Certificates
through nominees, depositories or other intermediaries), or(b)is treated as the owner of any Certificates for federal
income tax purposes.
"Dissemination Agent"shall mean any agent of the district(including the Trustee), acting in its capacity as
Dissemination Agent hereunder, or any successor Dissemination Agent designated in writing by the District and
which has filed with the District and the Trustee a written acceptance of such designation
"Fiscal Year"shall mean the one-year period ending on the last day of December of each year.
"Holder"means a registered owner of the Certificates.
"Installment Purchase Agreement" shall mean that certain Installment Purchase Agreement executed and
entered into as of November 1,2004, by and between the District and the Corporation.
"Listed Events"shall mean any of the events listed in Section 5(a)of this Disclosure Certificate.
"National Repository"shall mean any Nationally Recognized Municipal Securities Information Repository
for purposes of the Rule.The National Repositories currently approved by the Securities and Exchange Commission
are set forth in Exhibit A.
"Participating Placement Agent" shall mean any of the original Placement Agents of the Certificates
required to comply with the Rule in connection with offering of the Certificates.
"Repository"shall mean each National Repository and each State Repository.
"Rule"shall mean Rule 15c2-12 adopted by the Securities and Exchange Commission under the Securities
Exchange Act of 1934,as the same may be amended from time to time.
"State"shall mean the State of California.
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"State Repository" shall mean any public or private repository or entity designated by the State as a state
repository for the purpose of the Rule and recognized as such by the Securities and Exchange Commission. As of
the date of this Disclosure Certificate,there is no State Repository.
3. provisio�ual Reports.
than
(a) The District shall provide (or cause the Dissemination Agent to p�each Ret later ository an .;
270 days following the end of its Fiscal Year (commencing with the Fiscal Year _� p �a
Annual Report relating to the immediately preceding Fiscal Year which is consistent with the requirements of
Section 4 of this Disclosure Certificate,which Annual Report may be submitted as a single document or as separate s
documents comprising a package, and may cross-reference other information as provided in Section 4 of this
Disclosure Certificate-
(b) If the District is unable to provide to each Repository an Annual Report by the date
required in subsection (a), the District shall send to each Repository a notice in substantially the form attached
hereto as Exhibit B.
4, Content of Annual Reports. The Annual Report shall contain or incorporate by reference the
following:
(a) The audited financial statements of the District for the prior fiscal year, prepared in
accordance with generally accepted accounting principles as promulgated to apply to governmental entities from
andards Board. if the District's audited financial statements are not
time to time by the Governmental Accounting St
available by the time the Annual Report is required to be filed pursuant to Section 4(l), the Annual Report shall
contain unaudited financial statements in a format similar to the Distr riot Annual Audit, and the audited financial
statements shall be filed in the same manner as the Annual Report when they come available. [To be revised to
discuss Broadband System revenues.]
(b) Principal amount of the Certificates outstanding.
(c) Balance in the Reserve Fund and a statement of the reserve requirement with respect
thereto.
(d) An update of the information in the following tables or paragraphs under caption entitled
"THE PROJECT"in the Private Placement Memorandum:
1.
2.
3.
4.
5.
6
Any or all of the items listed above may be included by specific reference to other documents, including
official statements of debt issues of the District or related public entities, which have been submitted to each of the
Repositories;provided,that if any document included by reference is a final official statement, it must be available
ties Rulemaking Board; and provided further, that the District shall clearly identify each
from the Municipal Secur
such document so included by reference.
5 Reporting of SSenificant Events.
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(a) Pursuant to the provisions of this Section 5, the District shall give, or cause to be given,
notice of the occurrence of any of the following events with respect to the Certificates, if material:
1 principal and interest payment delinquencies.
2. non-payment related defaults.
3. modifications to rights of Certificate holders.
4. optional,contingent or unscheduled Certificate calls.
5. defeasances.
6. rating changes.
7. adverse tax opinions or events affecting the tax-exempt status of the Certificates.
8. unscheduled draws on the debt service reserves reflecting financial difficulties.
9, unscheduled draws on the credit enhancements reflecting financial difficulties.
10. substitution of the credit or liquidity providers or their failure to perform.
11. release, substitution or sale of property securing repayment of the Certificates.
(b) Whenever the District obtains knowledge of the occurrence of a Listed Event,the District
shall as soon as possible determine if such event would be material under applicable federal securities laws.
(c) If the District determines that knowledge of the occurrence of a Listed Event would be
material under applicable federal securities laws, the District shall promptly file a notice of such occurrence with the
Repositories. Notwithstanding the foregoing, notice of Listed Events described in subsections (a)(4) and (5) need
not be given under this subsection any earlier than the notice(if any) of the underlying event is given to Holders of
affected Certificates pursuant to the Trust Agreement.
6. Customarily Prepared and Public Information. Upon request, the District shall provide to any
person financial information and
and is publicly available. operating data regarding the District which is customarily prepared by the District
available.
7. Termination of Obligation. The District's obligations under this Discl osure Cc rtificate l
shal
terminate upon the legal defeasanee, prior prepayment or payment in full of all of the Cert ficates. If such
termination occurs prior to the final maturity of the Certificates, the District shall give notice of such termination in
the same manner as for a Listed Event under Section 5(c).
8. Amendment: Waiver. Notwithstanding any other provision of this Disclosure Certificate, the
District may amend this Disclosure Certificate, and any provision of this Disclosure Certificate may be waived,
provided that, in the opinion of nationally recognized bond counsel, such amendment or waiver is permitted by the
Rule.
9. Additional Information. Nothing in this Disclosure Certificate shall be deemed to prevent the
District from disseminating any other information, using the means of dissemination set forth in this Disclosure f
Certificate or any other means of communication, or including any other information in any notice of occurrence of
a Listed Event, in addition to that which is required by this Disclosure Certificate. If the District chooses to include
any information in any notice of occurrence of a Listed Event in addition to that which is specifically required by
this Disclosure Certificate, the District shall not thereby have any obligation under this Disclosure Certificate to
update such information or include it in any future notice of occurrence of a Listed Event.
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4
{
10. Default. In the event of a failure of the District to comply with any provision of this Disclosure
Certificate, any Holder or Beneficial Owner of the Certificates may take such actions as may be necessary and
appropriate,including seeking mandate or specific performance by court order,to cause the District to comply with
is obligations under this Disclosure Certificate. A default under this Disclosure Certificate shall not be deemed an
Event of Default under the Trust Agreement, and the sole remedy under this Disclosure Certificate in the event of
any failure of the District to comply with this Disclosure Certificate shall be an action to compel performance. v
No Holder or Beneficial Owner of the Certificates may institute such action, suit or proceeding to compel
performance unless they shall have first delivered to the District satisfactory written evidence of their status as such,
failure, and the District shall have refused to comply therewith
and a written notice of and request to cure such
within a reasonable time.
11. Beneficiaries, This Disclosure Certificate shall inure solely to the benefit of the District, the
Participating Placement Agentand Holders and Beneficial Owners from time to time of the Certificates, and shall
create no rights in any other person or entity.
Dated: November 1,2004 TRUCKEE DONNER PUBLIC
UTILITY DISTRICT
By:
Its: President
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EXHIBIT A
Nationally Recognized Municipal. Securities Information Repositories approved by the Securities and
Exchange Commission as of September 1,2004:
Bloomberg Municipal Repositories
P.O.Box 840
Princeton,NJ 08542-0840
E-mail: Munis@Bloomberg.com
(609)279-3225
FAX(609)279-5962
DPC Data Inc.
One Executive Drive
Fort Lee,NJ 07024
E-mail: nnnsir@dpcdata.com
(201)346-0701
FAX(201)947-0107
Interactive Data
Attn:Repository
100 Williams Street
New York,NY 10038
Phone: (212)771-6899
Fax:(212)771-7390
E-Mail:NRMSIR@interactivedata.com
Website:http://www.InteractiveData.com
Standard &Poor's J.J.Kenny Repository
55 Public Utility Street,45th Floor
New York,NY 10041
(212)438-4595
FAX(212)438-3975
Y
z
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i
r
EXHIBIT B
Y
NOTICE TO REPOSITORIES OF FAILURE TO FILE ANNUAL REPORT
Name of Issuer: TRUCKEE DONNER PUBLIC UTILITY DISTRICT
i
Name of Issue: REVENUE CERTIFICATES OF PARTICIPATION, SERIES 2004
Date of Issuance November,2004
District has not provided an Annual Report with respect to the
NOTICE IS HEREBY GIVEN that the to a
above-named Certificates as required by the Cont inning Disclosure Certificate ap ro Tha D pursuant
ct anti pates that the
adopted by the Board of Directors of the District on — —
Annual Report will be filed by
Dated:
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
By
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