HomeMy WebLinkAbout2006-09-20 Agenda Packet - Board (17) Agenda Item #
TRUCKEE DONNER
Public Utility D�stric
Memorandum
To: Board of Directors
From: Peter Holzmeister
Date: September 15, 2006
Subject: Resolution related to issuance of 2006 water Certificates of Participation
Why this matter is before the Board: This matter involves adopting a resolution approving various
documents that implement issuance of series 2006 water system Certificates of Participation. Only
the Board can adopt this resolution
History: Issuing COPS involves adopting certain documents by the TDPUD Board of Directors and
adopting a similar set of Documents by the TDPUD Financing Corporation. At this point in the
meeting you will be sitting as the Board of Directors of the Financing Corporation, considering
adoption of its resolution which adopts its set of COP documents.
There is a long history to the Board's discussion of this matter. The purpose of issuing COPS at this
time is to provide funds to pay for:
• Replacement of leaking water lines in Tahoe Donner and elsewhere in the District during the
next four years,
• Construction of the Brockway Road pipeline,
• Restoring funds to the Land Sale Trust Fund that had been temporarily borrowed to
reconstruct the Donner Lake water system,
• Purchase generators
• Upgrade SCADA
• Refinance 1996 water COPS
A finance team has been assembled to help us issue the new COPS. The team consists of McDonald
Partners as financial advisor, Stradling Yoca Carlson and Roth as bond counsel, Stone and
Youngberg as underwriter, and Bank of New York as Trustee. This team has been working with staff
to prepare the needed documents to complete the borrowing.
New information: Attached is a resolution prepared by bond counsel for your consideration. By
adopting the resolution you are adopting a serried of documents that implement the issuance of
COPS. The referenced documents are also attached for your review. As you will quickly see, the
documents are legalistic and are quite similar to documents we have adopted in issuing prior COPS.
Members of the finance team will be present at Wednesday's meeting to describe the documents and
answer questions.
Recommendation: I recommend that the Board adopt the Resolution Authorizing the Execution and
Delivery of Refunding Revenue Certificates of Participation, Approving the Execution and Delivery of
Certain Documents and Authorizing Certain Actions in Connection Therewith
F
Public Utility District
f
PF
Resolution No. 2006 - XXX
RESOLUTION OF THE BOAR STORICT FICTORS OF THE
NANCING NG CORPORATION
TRUCKEE DONNER PUBLIC UTILITY
AUTHORIZING THE EXECUTION AND DELIVERY OF
REFUNDING REVENUE CERTIFICATES OF PARTICIPATION, APPROVING THE
EXECUTION AND DELIVERY OF CERTAIN DOCUMENTSAND
DUTHORIZING
CERTAIN ACTIONS IN CONNECTION
THEREWITH
WHEREAS, the Truckee Donner Public Utility District Financing Corporation is a nonprofit
public benefit corporation organized and existing under the laws of the State of California (the
"Corporation") with the authority to provide financial assistance to the Truckee Donner Public Utility
District (the "District") by acquiring, constructing
land a'nd equipmentlng for thelous use, benlic efit anldles, land enjoymen nd of
equipment, and the leasing of facilities,
the public (the "facilities");
WHEREAS, the District has determined that it would be in the best interests of the
Corporation, District, and citizens of the community to authorize the preparation and delivery of
Truckee Donner Public Utility District Refunding Revenue Certificates of Participation, Series 2006
(the "Certificates") to refinance and finance water system facilities of the District;
WHEREAS, the District and the Corporation desire to enter into that certain Installment
Purchase Agreement, by and between the District and the Corporation (the "Installment Purchase
Agreement"), the form of which is on file with the Corporation, that certain Trust Agreement, by and
among the Trustee named therein, as trustee (the "Trustee"), the District and the Corporation (the
"Trust Agreement"), the form of which is on file with the Corporation and that certain Assignment
Agreement, by and between the Corporation and the Trustee (the "Assignment Agreement"), the
form of which is on file with the Corporation; and
WHEREAS, the Certificates will be sold to the underwriter (the 'Underwriter') named in a
Purchase Contract, by and among the District and the Underwriter and acknowledged by the
Corporation (the "Purchase Contract"), the form of which is on file with the Corporation.
NOW, THEREFORE, the Board of Directors of the Corporation (the "Board") does hereby
resolve as follows:
Section 1. Certificates. This Board hereby authorizes the preparation, sale and delivery
of the Certificates in an aggregate principal amount not to exceed $28,000,000 (except such amount
may be increased to the extent the General Manager of the District approves original issue discount
in connection with the sale of the Certificates) in accordance with the terms and provisions of the
Trust Agreement. The purposes for which the proceeds of the sale of the Certificates shall be
expended is to refinance and finance certain water system facilities of the District as described in the
Installment Purchase Agreement, to fund a deposit to a reserve fund for the Certificates and to pay
the costs of delivery of the Certificates.
Resolution 2006-XX
Section 2. Certificate Documents. The Installment Purchase Agreement, the Assignment
Agreement, the Trust Agreement and the Purchase Contract presented at this meeting are
approved. The President or Vice-President of the Corporation or the President's designee is
authorized and directed to execute and deliver the Installment Purchase Agreement, the Assignment
Agreement and the Trust Agreement and the Treasurer is authorized and directed to acknowledge
said Purchase Contract. Such agreements and contract shall be executed or acknowledged, as the
case may, in substantially the forms hereby approved, with such additions thereto and changes
therein as may be recommended by General Counsel or Special Counsel and as are approved by
the officers executing such agreements and contract, such approval to be conclusively evidenced by
the execution and delivery or acknowledgment thereof.
Section 3. Other Actions. The President, Vice-President, the Secretary, Treasurer and
such other officers of the Corporation are authorized and directed, acting singly, to do any and all
things and to execute and deliver any and all documents which such officers may deem necessary
or advisable in order to consummate the sale and delivery of the Certificates, and the delivery of the
Installment Purchase Agreement,
ase Contract and otherwise effectuate he purposes of this Resolution,
and such actions previously taken by such officers are hereby ratified and confirmed.
Section 4. Effect. This Resolution shall take effect immediately.
I certify that the foregoing resolution was adopted by the Board of Directors of the Truckee
Donner Public Utility District Financing Corporation on September 20, 2006.
AYES:
NOES:
ABSENT:
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
FINANCING CORPORATION
President
ATTEST:
Secretary
Resolution 2006-XX 2
I, the undersigned, hereby certify: That I am the duly appointed and acting Secretary of the
Truckee Donner Public Utility District Financing Corporation and that a special meeting of the Board
of said Corporation was held on September 20, 2006, the minutes of the regular meeting of the
Board of Directors were duly regularlyand adopted
adoptiold Board n, and that they, and thare said
now n full force and
been rescinded or amended since the date o
effect.
Dated: September 20, 2006
Secretary
Truckee Donner Public Utility District
Financing Corporation
Resolution 2006-XX 3
Stradling Yocca Carlson &Rauth
Draft of 911412006
INSTALLMENT PURCHASE AGREEMENT
by and between
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
and
TRUCKEE DONNER PUBLIC UTILITY DISTRICT FINANCING CORPORATION
Dated as of September 1, 2006
relating to
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
REFUNDING REVENUE CERTIFICATES OF PARTICIPATION
(WATER SYSTEM IMPROVEMENT PROJECTS),
SERIES 2006
DOC S S F/59523 v 6/022925-0017
INSTALLMENT PURCHASE AGREEMENT
This INSTALLMENT PURCHASE AGREEMENT, made and entered into as of
September 1, 2006 by and between 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
(the "District"), and 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(the"Corporation").
WITNESSETH:
WHEREAS, the District proposes to undertake the refinancing of certain equipment and
facilities within the District Water System (the "1996 Project") and to finance certain equipment and
facilities within the District Water System (the "2006 Project") as more particularly described in
Exhibit B hereto(collectively, the"Project");
WHEREAS, the District and the Corporation have previously entered into an Installment
Purchase Agreement, dated as of November 1, 1996 (the "1996 Installment Purchase Agreement")
whereby the Corporation agreed to assist the District in refinancing the 1996 Project;
WHEREAS, the District is authorized by Division 7 of the Public Utility Code of the State of
California, including but not limited to Section 16431, to acquire property for its Water System, and
by Article 11 of Chapter 3 of Part 1 of Division 2 of Title 5 of the Government Code of the State of
California to refinance the acquisition of property for its Water System;
WHEREAS, the Corporation has agreed to assist the District to finance and refinance the
Project;
WHEREAS, the District and the Corporation have duly authorized the execution of this
Agreement;
WHEREAS, all acts, conditions and things required by law to exist, to have happened and to
have been performed precedent to and in connection with the execution and delivery of this
Installment Purchase Agreement do exist, have happened and have been performed in regular and
due time, form and manner as required by law, and the parties hereto are now duly authorized to
execute and enter into this Installment Purchase Agreement;
NOW, THEREFORE, IN CONSIDERATION OF THESE PREMISES AND OF THE
MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN AND FOR OTHER
VALUABLE CONSIDERATION, THE PARTIES HERETO DO HEREBY AGREE AS
FOLLOWS:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Unless the context otherwise requires, the terms defined in this
section shall for all purposes hereof and of any amendment hereof or supplement hereto and of any
report or other document mentioned herein or therein have the meanings defined herein, the
DOCS SF/59523v6/022925-0017
following definitions to be equally applicable to both the singular and plural forms of any of the
terms defined herein. Unless the context otherwise requires, all capitalized terms used herein and not
defined herein shall have the meanings ascribed thereto in the Trust Agreement.
Accountant's Report
The term "Accountant's Report" means a report signed by an Independent Certified Public
Accountant.
Acquisition Fund
The term "Acquisition Fund" means the fund by that name established pursuant to
Section 3.6 hereof.
Administrative Services Manaizer/Treasurer
The Term "Administrative Services Manager/Treasurer" means the Administrative Services
Manager/Treasurer of the District, or any other person designated by the Administrative Services
Manager/Treasurer to act on behalf of the Administrative Services Manager/Treasurer.
Agreement
The term "Agreement" means this Installment Purchase Agreement, by and between the
District and the Corporation, dated as of September 1, 2006, as originally executed and as it may
from time to time be amended or supplemented in accordance herewith.
Assignment Agreement
The term "Assignment Agreement" means the Assignment Agreement, by and between the
Corporation and the Trustee, dated as of September 1, 2006, as originally executed and as it may
from time to time be amended or supplemented in accordance with its terms.
Bonds
The term "Bonds" means all revenue bonds or notes of the District authorized, executed,
issued and delivered by the District, the payments of which are on a parity with the Installment
Payments and which are secured by a pledge of and lien on the Revenues as described in Section 5.1
hereof.
Business Day
The term "Business Day" 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
The term "Certificates" means the $ aggregate principal amount of Truckee
Donner Public Utility District Refunding Revenue Certificates of Participation (Water System
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Improvement Projects), Series 2006, executed and delivered on behalf of the District and at any time
outstanding pursuant to the Trust Agreement.
Continuing_Disclosure Certificate
The term "Continuing Disclosure Certificate" shall mean that certain Continuing Disclosure
Certificate executed by the District and dated the date of execution and delivery of the Certificates, as
originally executed and as it may be amended from time to time in accordance with the terms thereof.
Contracts
The term "Contracts" means this Installment Purchase Agreement and any amendments and
supplements hereto, and all contracts of the District previously or hereafter authorized and executed
by the District, the Parity Installment Payments which are on a parity with the Installment Payments
and which are secured by a pledge
and
lien
excludi Revenues
cont acts entereddescribed
into for Section
operation hereof,
and
including the DWR Proposition SS Loan, ng
maintenance of the Water System.
Corp
The term "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.
Date of Operation
The term "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.
Debt Service
The term"Debt Service" means, for any period of calculation, the sum of:
(1) the interest accrued during such period on all outstanding Bonds during such
period, assuming that all outstanding serial Bonds are retired as scheduled and that all
outstanding term Bonds are prepaid or paid from sinking fund payments as scheduled(except
to the extent that such interest is capitalized),
(2) those portions of the principal amount of all outstanding serial Bonds
maturing in such period or the next succeeding period, in each case accruing during such
period in each case and computed as if such principal were deemed to accrue daily during
such period in equal amounts,
(3) those portions of the principal amount of all outstanding term Bonds required
to be prepaid or paid in such period or the next succeeding period, in each case accruing
during such period and computed as if such principal were deemed to accrue daily during
such period in equal amounts, and
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(4) those portions of the Contracts required to be made during such period, or the
next succeeding period, in each case accruing during such period and computed as if such
Contract was deemed to accrue daily during such period in equal amounts (except to the
extent the interest evidenced and represented thereby is capitalized);
but less the earnings to be derived from the investment of moneys on deposit in debt service reserve
funds established for Bonds or Contracts;
provided that, as to any such Bonds or Contracts bearing or comprising interest at other than a fixed
rate, the rate of interest used to calculate Debt Service shall, 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 such Contract or Bond is not
yet outstanding, the initial rate(if established and binding), and
(ii) the highest average variable rate borne over a 3 month period of the preceding
12 months by outstanding variable rate debt issued by the District or, if no
such variable rate debt is at the time outstanding, by variable rate debt of
which the interest rate is computed by reference to an index comparable to
that to be utilized in determining the interest rate for the debt then proposed to
be issued;
provided further that if any series or issue of such Bonds or Contracts have twenty-five percent
(25%) or more of the aggregate principal amount of such series or issue due in any one year, Debt
Service shall be determined for the period of determination as if the principal of and interest on such
series or issue of such Bonds or Contracts were being paid from the date of incurrence r om thereof d in
ate of
substantially equal annual amounts over a period of twenty-five (25) years
calculation; and
provided further that, as to any such Bonds or Contracts or portions thereof bearing no interest but
which are sold at a discount and which discount accretes with respect to such Bonds or Contracts or
portions thereof, such accreted discount shall be treated as interest in the calculation of Debt Service;
and
provided further that if the Bonds or Contracts constitute Paired Obligations, the interest rate on such
Bonds or Contracts shall be the resulting linked rate or the effective fixed interest rate to be paid by
the District with respect to such Paired Obligations; and
provided further that the amount on deposit in a debt service reserve fund on any date of calculation
of Debt Service shall 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 to the extent the amount
in such debt service reserve fund is in excess of such amount of principal, such excess shall be
applied to the full amount of principal due, in each preceding year, in descending order, until such
amount is exhausted.
District
The term "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.
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Donner Lake Water Assessment District Number 00-1
The term "Donner Lake Water Assessment District Number 00-1" means the assessment
district established by that name by the District.
DWR Proposition 55 Loan
The term "DWR Proposition 55 Loan" means the loan agreement, dated as of August 13,
1992 (numbered E53311), by and between the State of California Department of Water Resources
and the District, as such DWR Proposition 55 Loan may be amended or supplemented in accordance
with its terms.
Event of Default
The term"Event of Default"means an event described in Section 8.1.
Fiscal Year
The term "Fiscal Year" means the period beginning on January 1 of each year and ending on
the next succeeding December 31, or any other twelve-month period selected and designated as the
official Fiscal Year of the District.
Independent Certified Public Accountant
The term "Independent Certified Public Accountant' means any firm of certified public
accountants appointed by the District, each of whom is independent of the District and the
Corporation pursuant to the Statement on Auditing Standards No. 1 of the American Institute of
Certified Public Accountants.
Independent Financial Consultant
The term "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 have any substantial interest, direct or indirect, with the
District; and (3) is not connected with the District as an officer or employee thereof, but who may be
regularly retained to make reports thereto.
Installment Payment Date Parity Installment Payment Date
The term "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 Payments Parity Installment Payments
The term "Installment Payments" means the Installment Payments of interest and principal
scheduled to be paid by the District under and pursuant hereto. 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.
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Installment Purchase Agreement
The term "Installment Purchase Agreement" means the Installment Purchase Agreement,
dated as of September 1, 2006, by and between the District and the Corporation, as originally
executed and as it may from time to time be amended or supplemented in accordance therewith.
1996 Installment Purchase Agreement
The term "1996 Installment Purchase Agreement" means the Installment Purchase
Agreement, dated as of November 1, 1996, by and between the District and the Corporation, as
originally executed and as it may from time to time be amended or supplemented in accordance
therewith.
1996 Project
The term "1996 Project" means the additions, betterments, extensions and improvements
described in Exhibit B hereto under the heading"1996 Project".
Interest Payment Date
The term "Interest Payment Date" means May 15 and November 15 of each year,
commencing May 15, 2007.
Law
The term "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 Article 11 of
Chapter 3 of Part 1 of Division 2 of Title 5 of the Government Code of the State of California, and all
laws amendatory thereof or supplemental thereto.
Manager
The Term "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
The term "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
The term "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
The term "Operation and Maintenance Costs" means (i)costs spent or incurred for
maintenance and operation of the Water System calculated in accordance with generally accepted
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accounting principles, including (among other things) the reasonable expenses of management and
repair and other expenses necessary to maintain and preserve the Water System in good repair and
working order, and including administrative costs of the District that are charged directly or
apportioned to the Water System, including but not limited to salaries and wages of employees,
payments to the Public Employees Retirement System, overhead, insurance, taxes (if any), fees of
auditors, accountants, attorneys, consultants or engineers and insurance premiums, and including all
other reasonable and necessary costs of the District or charges (other than Debt Service) required to
be paid by it to comply with the terms of this Agreement or any other Contract or of any resolution or
indenture authorizing the issuance of any Bonds or of such Bonds and (ii) all costs of water
purchased or otherwise acquired for delivery by the Water System (including any interim or renewed
arrangement therefor), but excluding in all cases depreciation, replacement and obsolescence charges
or reserves therefor and amortization of intangibles or other bookkeeping entries of a similar nature.
Paired Obli q ions
The term "Paired Obligations"means any Bond or Contract(or portion thereof) designated as
Paired Obligations in the resolution, indenture or other document authorizing the issuance or
execution and delivery thereof, which are simultaneously issued or executed and delivered (i) the
principal of which is of equal amount maturing and to be redeemed or prepaid (or cancelled after
acquisition thereof) on the same dates and in the same amounts, and (ii) the interest rates which,
taken together, result in an irrevocably fixed interest rate obligation of the District for the term of
such Bond or Contract.
Participatin;Underwriter
The term "Participating Underwriter" shall have the meaning ascribed thereto in the
Continuing Disclosure Certificate.
Project• Parity Project
The term "Project" means the 1996 Project and the 2006 Project. The term "Parity Project"
means any additions, betterments, extensions or improvements to the District's Water System
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
The term "Purchase Price" means the principal amount plus interest thereon owed by the
District to the Corporation under the terms hereof as provided in Section 4.1.
Rate Stabilization Fund
The term "Rate Stabilization Fund" means the fund by that name created pursuant to Section
5.5 hereof.
Reserve Requirement
The term "Reserve Requirement" means initially, $[ ], and thereafter the lesser of
(i) $[ ] or (ii)the maximum principal of and interest with respect to the Certificates due in the
then current or any future Fiscal Year.
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Revenue Fund
The term "Revenue Fund" means the fund by that name established pursuant to Section 5.2
hereunder; provided, however, the Revenue Fund excludes any account into which ad valorem taxes
levied by the District are deposited.
Revenues
The term "Revenues" means all income, rents, rates, fees, charges and other moneys derived
from the ownership or operation of the Water System, including, without limiting the generality of
the foregoing,
(1) all income, rents, rates, fees, charges, business interruption insurance
proceeds or other moneys derived by the District from the sale, furnishing and supplying of
water or other services, facilities, and commodities sold, furnished or supplied through the
facilities of or in the conduct or operation of the business of the Water System, plus
(2) the proceeds of any stand-by water availability charges, plus
(3) the connection charges and facility fees or similar charges related to the
Water System, plus
(4) the earnings on and income derived from the investment of the amounts
described in clauses (1), (2) and (3) hereof and on Water System reserves and amounts on
deposit in the Rate Stabilization Fund,
but excluding in all cases customer deposits or any other deposits or advances subject to refund until
such deposits or advances have become the property of the District, revenues from Donner Lake
Water Assessment District Number 00-1, and any proceeds of taxes restricted by law to be used by
the District to pay bonds hereafter issued.
"Revenues" shall also include all amounts transferred from the Rate Stabilization Fund to the
Revenue Fund during any Fiscal Year in accordance with Section 5.5 hereof and shall not include
any amounts transferred from the Revenue Fund to the Rate Stabilization Fund during any Fiscal
Year in accordance with Section 5.2(c)hereof.
Trust Agreement
The term "Trust Agreement" means the Trust Agreement, dated as of September 1, 2006, 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 be amended or supplemented in accordance with its terms.
Trustee
The term "Trustee" means The Bank of New York Trust Company, N.A., acting in its
capacity as Trustee under and pursuant to the Trust Agreement, and its successors and assigns.
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2006 Project
The term "2006 Project" means the additions, betterments, extensions and improvements
described in Exhibit B hereto under the heading"2006 Project".
Water Service
The term "Water Service" means the water distribution service made available or provided
by the Water System.
Water S sy tem
The term "Water System" means the whole and each and every part of the water system of
the District, including the portion thereof existing on the date hereof, and including all additions,
betterments, extensions and improvements to such water system or any part thereof hereafter
acquired or constructed.
Written Consent of the C )Kporaion or District Written Order of the Co oration 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 Authorized Representative or (ii)the District by
the President of its Board of Directors or the Manager of the District or by any two persons (whether
or not officers of the Board of Directors of the District) who are specifically authorized by resolution
of the District to sign or execute such a document on its behalf.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations by the District. The District makes the following
representations:
(a) The District is a public utility district duly organized and existing under and
pursuant to the laws of the State of California.
(b) The District has full legal right, power and authority to enter into this
Agreement and carry out its obligations hereunder, to carry out and consummate all other
transactions contemplated by this Agreement, and the District has complied with the provisions of
the Law in all matters relating to such transactions.
(c) By proper action, the District has duly authorized the execution, delivery and
due performance of this Agreement.
(d) The District will not take or, to the extent within its power, permit any action
to be taken which results in the interest paid for the installment purchase of the Project under the
terms of this Agreement being included in the gross income of the Certificate Owners or their assigns
for purposes of federal or State of California income taxation.
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(e) The District has determined that it is necessary and proper for District uses
and purposes within the terms of the Law that the District finance and refinance the acquisition of the
Project.
Section 2.2. Representations and Warranties by the Corooration. The Corporation makes
the following representations and warranties:
(a) The Corporation is a nonprofit public benefit corporation duly organized and
in good standing under the laws of the State of California, has full legal right, power and authority to
enter into this Agreement and to carry out and consummate all transactions contemplated by this
Agreement and by proper action has duly authorized the execution and delivery and due performance
of this Agreement.
(b) The execution and delivery of this Agreement and the consummation of the
transactions herein contemplated will not violate any provision of law, any order of any court or
other agency of government, or any indenture, material agreement or other instrument to which the
Corporation is now a party or by which it or any of its properties or assets is bound, or be in conflict
with, result in a breach of or constitute a default (with due notice or the passage of time or both)
under any such indenture, agreement or other instrument, or result in the creation or imposition of
any prohibited lien, charge or encumbrance of any nature whatsoever upon any of the properties or
assets of the Corporation.
(c) The Corporation will not take or permit any action to be taken which results
in interest paid for the installment purchase of the Project under the terms of this Agreement being
included in the gross income of the Certificate Owners or their assigns for purposes of federal or
State of California income taxation.
ARTICLE III
SALE AND PURCHASE OF THE PROJECT
Section 3.1. Sale and Purchase of 1he Project. In consideration for the Corporation's
assistance in refinancing the 1996 Project, the District agrees to sell, and hereby sells, to the
Corporation, and the Corporation agrees to purchase and hereby purchases, from the District, the
1996 Project at the purchase price specified in Section 4.01 hereof and otherwise in the manner and
in accordance with the provisions of this Agreement.
Section 3.2. Purchase and Sale of the Project. In consideration for the Installment
Payments as set forth in Section 4.2, the Corporation agrees to sell, and hereby sells, to the District,
and the District agrees to purchase, and hereby purchases, from the Corporation, the Project at the
purchase price specified in Section 4.1 hereof and otherwise in the manner and in accordance with
the provisions of this Agreement.
Section 3.3. Title. All right, title and interest in each component of the 1996 Project shall
vest in the District immediately upon execution and delivery of this Agreement. All right, title and
interest in each component of the 2006 Project shall vest in the District immediately upon acquisition
thereof. Such vesting shall occur without further action by the Corporation or the District and the
Corporation shall, if requested by the District or, if necessary to assure such automatic vesting,
deliver any and all documents required to assume such vesting.
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Section 3.4. Acquisition and Construction of the Project. The Corporation hereby agrees
to cause the 2006 Project, and any additions or modifications thereto to be constructed, acquired or
installed by the District as its agent, and the District shall enter into contracts and provide for, as
agent of the Corporation, the complete construction, acquisition and installation of the 2006 Project.
The District hereby agrees that the District will cause the construction, acquisition and installation of
the 2006 Project to be diligently performed after the deposit of funds with the Trustee pursuant to
Section 3.2 of the Trust Agreement, upon satisfactory completion of design work and compliance
with CEQA and approval by the Board of Directors of the District, unforeseeable delays beyond the
reasonable control of the District only excepted. It is hereby expressly understood and agreed that
the Corporation shall be under no liability of any kind or character whatsoever for the payment of
any cost of the 2006 Project and that all such costs and expenses shall be paid by the District,
regardless of whether the funds deposited in the Acquisition Fund are sufficient to cover all such
costs and expenses.
Section 3.5. Changes to the 2006 Project. The District may add other improvements to or
substitute other improvements for those listed as components of the 2006 Project in Exhibit B hereto,
but only if the District first files with the Corporation and the Trustee a statement of the District:
(a) identifying the improvements to be deleted from such Exhibit, if any, and the
improvements to added or replaced, if any; and
(b) stating that the estimated costs of construction, acquisition and installation of
the added or substituted improvements will not cause the cost of the uncompleted portion of the 2006
Project to exceed the amount available therefore in the Acquisition Fund.
Section 3.6. Acquisition Fund. There is hereby established with the Trustee the
Acquisition Fund. The moneys in the Acquisition Fund shall be held by the District in trust and shall
be applied to the payment of the costs of acquisition and construction of the 2006 Project, and of
expenses incidental thereto, including Delivery Costs. Before any payment is made from the
Acquisition Fund by the Administrative Services Manager/Treasurer of the District, the Manager
shall cause to be filed with the Administrative Services Manager/Treasurer of the District a Written
Requisition of the District in the form set forth in Exhibit C hereto.
Upon receipt of each such Written Requisition the Administrative Services
Manager/Treasurer of the District will pay the amount set forth in such Written Requisition as
directed by the terms thereof. The Administrative Services Manager/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 2006 Project shall have been constructed and acquired in accordance with the
Installment Purchase Agreement, a statement of the District stating the fact and date of such
acquisition, 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), shall be
delivered to the Administrative Services Manager/Treasurer of the District and the Trustee by the
District. Upon the receipt of such statement, the Administrative Services Manager/Treasurer of the
District shall transfer any remaining balance in the Acquisition Fund not needed for Acquisition
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Fund purposes (but less the amount of any such retention which amount shall be certified to the
Administrative Services Manager/Treasurer of the District by the District) to the Trustee which shall
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 Section 4.1 of the Trust Agreement.
ARTICLE IV
INSTALLMENT PAYMENTS
Section 4.1. Purchase Price.
(a) The Purchase Price to be paid by the District hereunder to the Corporation is
the sum of the principal amount of the District's obligations hereunder plus the interest to accrue on
the unpaid balance of such principal amount from the effective date hereof over the term hereof,
subject to prepayment as provided in Article VII.
(b) The principal amount of the payments to be made by the District hereunder is
set forth in Exhibit A hereto.
(c) The interest to accrue on the unpaid balance of such principal amount is as
specified in Section 4.2 and Exhibit A hereto, and shall be paid by the District as and constitute
interest paid on the principal amount of the District's obligations hereunder.
Section 4.2. Installment Payments. The District shall, subject to any rights of prepayment
provided in Article VII, 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 Exhibit A hereto;
provided, however, that the amount of Installment Payments payable on any Installment Payment
Date shall be reduced by the amounts on deposit in the Certificate Payment Fund on such Installment
Payment Date, if any.
Each Installment Payment shall 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 this section, such payment shall continue as an obligation of the District until such amount
shall have been fully paid; and the District agrees to 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 is absolute and
unconditional, and until such time as the Purchase Price shall have been paid in full (or provision for
the payment thereof shall have been made pursuant to Article IX), the District will not discontinue or
suspend any Installment Payments required to be made by it under this section when due, whether or
not the Water 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 2006 Project has
been completed, and such payments shall not be subject to reduction whether by offset or otherwise
and shall not be conditional upon the performance or nonperformance by any party of any agreement
for any cause whatsoever.
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ARTICLE V
SECURITY
Section 5.1. Pledge of Revenues. All Revenues and all amounts on deposit in the
Revenue Fund and the Rate Stabilization Fund are hereby irrevocably pledged to the payment of the
Installment Payments as provided herein; and the Revenues shall not be used for any other purpose
while any of the Installment Payments remain unpaid; provided that out of the Revenues and
amounts on deposit in the Revenue Fund and the Rate Stabilization Fund there may be apportioned
such sums for such purposes as are expressly permitted herein. This pledge, together with the pledge
created by all other Contracts and Bonds, shall constitute a first lien on Revenues and, subject to
application of Revenues and all amounts on deposit therein as permitted herein, the Revenue Fund,
the Rate Stabilization Fund and other funds and accounts created hereunder for the payment of the
Installment Payments and all other Contracts and Bonds in accordance with the terms hereof and the
Trust Agreement.
Section 5.2. Allocation of Revenues. In order to carry out and effectuate the pledge and
lien contained herein, the District agrees and covenants that all Revenues shall be received by the
District in trust hereunder and shall be deposited when and as received in a special fund designated as
the "Revenue Fund," which fund is hereby established and which fund the District agrees and
covenants 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 this Agreement.
The District shall, from the moneys in the Revenue Fund, pay all Operation and Maintenance
Costs (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. Thereafter all remaining moneys in the Revenue
Fund shall be applied by the District at the following times for the transfer to the following respective
special funds in the following order of priority; and all moneys in each of such funds shall be held in
trust and shall be applied, used and withdrawn only for the purposes set forth in this Section.
(a) Installment Payments. Not later than each Installment Payment Date, the
District shall, from the moneys in the Revenue Fund, transfer to the Trustee the Installment Payment
due and payable on that Installment Payment Date. The District shall also, from the moneys in the
Revenue Fund, transfer to the applicable trustee for deposit in the respective payment fund, without
preference or priority, and in the event of any 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
shall, from the remaining moneys in the Revenue Fund, thereafter, without preference or priority and
in the event of any insufficiency of such moneys ratably without any discrimination or preference,
and to the Trustee for deposit in the Reserve Fund and to the applicable trustee for such other reserve
funds and/or accounts, if any, as may have been established in connection with Bonds or Contracts
other than this Agreement, that sum, if any, necessary to restore the Reserve Fund to an amount equal
to the Reserve Requirement; provided, however, that the District may provide for the Reserve Fund
by means other than cash and Permitted Investments pursuant to Section 5.4 of the Trust Agreement.
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(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 purpose permitted by law, including but not limited to deposits to the
Rate Stabilization Fund.
Section 5.3. Additional Contracts and Bonds. The District may at any time execute any
Contract or issue any Bonds, as the case may be, in accordance herewith; provided:
(a) The Net Revenues (not including amounts transferred from the Rate
Stabilization Fund pursuant to Section 5.5 hereof to the Revenue Fund in excess of twenty five
percent (25%) of Debt Service for such Fiscal Year) 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
(b) The Net Revenues (not including amounts transferred from the Rate
Stabilization Fund pursuant to Section 5.5 hereof to the Revenue Fund in excess of twenty five
percent (25%) of Debt Service for such Fiscal Year) 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 Water Service approved and in effect as of the date of calculation, as evidenced by a
calculation prepared by the District, shall have produced a sum equal to at least one hundred twenty—
five percent (125%) of (x) the Debt Service for such Fiscal Year plus (y) 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 (z) the Debt Service which would have accrued on the Contract to be executed on Bond to
be issued had such Contract been executed or Bonds been issued at the beginning of such Fiscal
Year; and
(c) The estimated Net Revenues (not including amounts transferred from the
Rate Stabilization Fund pursuant to Section 5.5 hereof to the Revenue Fund in excess of twenty five
percent (25%) of Debt Service for such Fiscal Year) 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, 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 (not including amounts
transferred from the Rate Stabilization Fund pursuant to Section 5.5 hereof to the Revenue Fund in
excess of twenty five percent (25%) of Debt Service for such Fiscal Year) 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 the Water Service and which are economically feasible and reasonably
considered necessary based on projected operations for such period, as evidenced by a certificate of
the General Manager on file with the District, shall 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
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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; and
Notwithstanding the foregoing, 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.
Section 5.4. Investments. All moneys held by the District in the Revenue Fund and Rate
Stabilization Fund shall be invested in Permitted Investments and the investment earnings thereon
shall remain on deposit in such fund, except as otherwise provided herein.
Section 5.5. Rate Stabilization Fund. There is hereby established with the District a
special fund designated as the"Rate Stabilization Fund" to be held by the District in trust hereunder,
which fund the District agrees and covenants to maintain and to hold separate and apart from other
funds so long as any Contracts or Bonds remain unpaid. The initial deposit to the Rate Stabilization
Fund is $0. Money transferred by the District from the Revenue Fund to the Rate Stabilization Fund
in accordance with Section 5.2(c), if any, shall be held in the Rate Stabilization Fund and applied in
accordance with this Agreement.
The District may withdraw all or any portion of the amounts on deposit in the Rate
Stabilization Fund and transfer such amounts to the Revenue Fund for application in accordance with
Section 5.2 hereof or, in the event that all or a portion of the Installment Payments are discharged in
accordance with Section 9.1(b) or (c) hereof, transfer all or any portion of such amounts for
application in accordance with said Section.
ARTICLE VI
COVENANTS OF THE DISTRICT
Section 6.1. Compliance with Installment Purchase Agreement and Ancillary Agreements.
The District will punctually pay the Installment Payments in strict conformity with the terms hereof,
and will faithfully observe and perform all the agreements, conditions, covenants and terms
contained herein required to be observed and performed by it, and will not terminate this 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 Project, 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 herein required to be observed and
performed by it, whether express or implied, or any duty, liability or obligation arising out of or
connected herewith 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 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.
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It is expressly understood and agreed by and among the parties to this Agreement that,
subject to Section 10.6 hereof, each of the agreements, conditions, covenants and terms contained in
this Agreement is an essential and material term of the purchase of and payment for the Project by
the District pursuant to, and in accordance with, and as authorized under the Law.
The District will faithfully observe and perform all the agreements, conditions, covenants and
terms required to be observed and performed by it pursuant to all outstanding Contracts and Bonds as
such may from time to time be executed or issued, as the case may be.
Section 6.2. Against Encumbrances. The District will not make any pledge of or place
any lien on Revenues or the moneys in the Revenue Fund or the Rate Stabilization Fund except as
provided herein. The District may at any time, or from time to time, execute Contracts or issue
Bonds as permitted herein or incur evidences of indebtedness or incur other obligations for any
lawful purpose which are payable from and secured by a pledge of and lien on Revenues and on any
moneys in the Revenue Fund and the Rate Stabilization Fund as may from time to time be deposited
therein, provided that such pledge and lien shall be subordinate in all respects to the pledge of and
lien thereon provided herein.
Section 6.3. Against Sale or Other Disposition of Property. The District will not enter into
any agreement or lease which impairs the operation of the Water System or any part thereof
necessary to secure adequate Revenues for the payment of the Installment Payments, or which would
otherwise impair the rights of the Corporation hereunder or the operation of the Water System. Any
real or personal property which has become nonoperative or which is not needed for the efficient and
proper operation of the Water System, or any material or equipment which has become worn out,
may be sold if such sale will not impair the ability of the District to pay the Installment Payments and
if the proceeds of such sale are deposited in the Revenue Fund.
Nothing herein shall restrict the ability of the District to sell any portion of the Water 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 Water System exercising any remedy which
would deprive the District of or otherwise interfere with its right to own and operate such portion of
the Water System.
Section 6.4. Ap-ainst Competitive Facilities. To the extent permitted by law, the District
covenants that it will not acquire, construct, maintain or operate and will not, to the extent permitted
by law and within the scope of its powers, permit any other public or private agency, corporation,
district or political subdivision or any person whomsoever to acquire, construct, maintain or operate
within the District any water system competitive with the Water System.
Section 6.5. Tax Covenants. Notwithstanding any other provision of this 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 and the
Corporation covenant to 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 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
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property which would cause the Certificates to be "private activity bonds" within the meaning of
Section 141 of the Code.
(b) Arbitrage. 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 Guarantee. 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 Corporation will take or cause to
be taken all necessary action to comply with the informational reporting requirements of
Section 149(e)of the Code.
(e) Hedge Bonds. The District and the Corporation will make no use of the
proceeds of the Certificates or any other amounts or property, regardless of the source, or take any
action or refrain from taking any action that would cause the Certificates to be considered "hedge
bonds" within the meaning of Section 149(g) of the Code unless the District takes all necessary
action to assure compliance with the requirements of Section 149(g) of the Code to maintain the
exclusion from gross income of interest on the Certificates for federal income tax purposes.
(f) Miscellaneous. The District and the Corporation will take no action, or omit
to take any action, inconsistent with the 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 herein.
This Section and the covenants set forth herein shall not be applicable to, and nothing
contained herein shall be deemed to prevent the District and the Corporation from executing and
delivering Certificates, the interest with respect to which has been determined by Special Counsel to
be subject to federal income taxation.
Section 6.6. Maintenance and Operation of the Water System. The District will maintain
and preserve the Water System in good repair and working order at all times and will operate the
Water System in an efficient and economical manner and will pay all Operation and Maintenance
Costs as they become due and payable.
Section 6.7. Payment of Claims. 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 hereunder or on any funds in the hands of the District 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.
Section 6.8. 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,
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required to be performed by it contained in all other contracts affecting or involving the Water
System, to the extent that the District is a party thereto.
Section 6.9. Insurance.
(a) The District will procure and maintain or cause to be procured and
maintained insurance on the Water System with responsible insurers in such amounts and against
such risks (including damage to or destruction of the Water System) as are usually covered in
connection with a water system similar to the Water System so long as such insurance is available
from reputable insurance companies on commercially reasonable terms.
In the event of any damage to or destruction of the Water System caused by the perils
covered by such insurance, the Net Proceeds thereof shall be applied to the reconstruction, repair or
replacement of the damaged or destroyed portion of the Water System. The District shall begin such
reconstruction, repair or replacement promptly after such damage or destruction shall occur, and shall
continue and properly complete such reconstruction, repair or replacement as expeditiously as
possible, and shall pay out of such Net Proceeds all costs and expenses in connection with such
reconstruction, repair or replacement so that the same shall be completed and the Water System shall
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 Water System, and/or the cost of the construction of additions, betterments, extensions
or improvements to the Water System, then the excess Net Proceeds may, at the option of the
District, be applied in part to the prepayment of Installment Payments as provided in Article VII 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 hereby 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 Water System, and/or
not to construct other additions, betterments, extensions or improvements to the Water System; and
thereupon such Net Proceeds shall be applied to the prepayment of Installment Payments as provided
in Article VII and to the retirement of such Bonds and Contracts.
(b) The District will procure and maintain such other insurance as it shall deem
advisable or necessary to protect its interests and the interests of the Corporation, which insurance
shall afford protection in such amounts and against such risks as are usually covered in connection
with a water system similar to the Water System.
(c) Any insurance required to be maintained by paragraph (a) above and, if the
District determines to procure and maintain insurance pursuant to paragraph (b) above, such
insurance, may be maintained under a self-insurance program so long as such self-insurance is
maintained in the amounts and manner usually maintained in connection with a water system similar
to the Water System and is, in the opinion of an accredited actuary, actuarially sound.
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Section 6.10. Accounting Records; Financial Statements and Other Resorts.
(a) The District will keep appropriate accounting records in which complete and
correct entries shall be made of all transactions relating to the District, which records shall be
available for inspection by the Corporation, the Bond Insurer and the Trustee at reasonable hours and.
under reasonable conditions.
(b) The District will prepare and file with the Corporation, the Bond Insurer and
the Trustee annually within one hundred eighty (180) days after the close of each Fiscal Year
(commencing with the Fiscal Year ending December 31, 2006)financial statements of the District for
the preceding Fiscal Year prepared in accordance with generally accepted accounting principles,
together with an Accountant's Report thereon.
Section 6.11. Protection of Security and Rights of the Corporation. The District will
preserve and protect the security hereof and the rights of the Corporation to the Installment Payments
hereunder and will warrant and defend such rights against all claims and demands of all persons.
Section 6.12. Payment of Taxes and Compliance with Governmental Regulations. The
District will pay and discharge all taxes, assessments and other governmental charges which may
hereafter be lawfully imposed upon the Water System, or any part thereof or upon the Revenues
when the same shall become due. The District will duly observe and conform with all valid
regulations and requirements of any governmental authority relative to the operation of the Water
System, or any part thereof, but the District shall not be required to comply with any regulations or
requirements so long as the validity or application thereof shall be contested in good faith.
Section 6.13. Amount of Rates and Charges.
(a) To the fullest extent permitted by law, the District shall fix, prescribe and
collect rates and charges for the Water Service provided by the Water System which will be at least
sufficient to yield during each Fiscal Year Net Revenues (not including amounts transferred from the
Rate Stabilization Fund pursuant to Section 5.5 hereof in excess of twenty five percent(25%) of Debt
Service for such Fiscal Year) equal to one hundred twenty—five percent (125%) of Debt Service for
such Fiscal Year allocable to the Water System.
(b) The District may make adjustments from time to time in such rates and
charges and may make such classification thereof as it deems necessary, but shall not reduce the rates
and charges then in effect unless the Net Revenues from such reduced rates and charges will at all
times be sufficient to meet the requirements of this section.
Section 6.14. Collection 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
Water Service and providing for the billing thereof and for a due date and a delinquency date for
each bill.
Section 6.15. Eminent Domain Proceeds. If all or any part of the Water System shall be
taken by eminent domain proceedings, the Net Proceeds thereof shall be applied as follows:
(a) If (1) the District files with the Corporation and the Trustee a certificate
showing (i) the estimated loss of annual Net Revenues, if any, suffered or to be suffered by the
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District by reason of such eminent domain proceedings, (ii) a general description of the additions,
betterments, extensions or improvements to the Water System proposed to be acquired and
constructed by the District from such Net Proceeds, and(iii) an estimate of the additional annual Net
Revenues to be derived from such additions, betterments, extensions or improvements, and (2) the
District, on the basis of such certificate filed with the Corporation and the Trustee, determines that
the estimated additional annual Net Revenues will sufficiently offset the estimated loss of annual Net
Revenues resulting from such eminent domain proceedings so that the ability of the District to meet
its obligations hereunder will not be substantially impaired (which determination shall be final and
conclusive), then the District shall promptly proceed with the acquisition and construction of such
additions, betterments, extensions or improvements substantially in accordance with such certificate
and such Net Proceeds shall 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
shall be deposited in the Revenue Fund.
(b) If the foregoing conditions are not met, then such Net Proceeds shall be
applied by the District in part to the prepayment of Installment Payments as provided in Article VII
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.
Section 6.16. 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 hereof and for the better assuring and
confirming unto the Corporation and the Bond Insurer of the rights and benefits provided to it herein.
Section 6.17. Enforcement of Contracts. The District will not voluntarily consent to or
permit any rescission of, nor will it consent to any amendment to or otherwise take any action under
or in connection with any contracts previously or hereafter entered into if such rescission or
amendment would in any manner impair or adversely affect the ability of the District to pay
Installment Payments.
Section 6.18. Continuing Disclosure. The District hereby covenants and agrees that it will
comply with and carry out all of the provisions of the Continuing Disclosure Certificate.
Notwithstanding any other provision of this Agreement, failure of the District to comply with the
Continuing Disclosure Certificate shall not be considered an Event of Default; however, any Owner
of Certificates or Beneficial Owner 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 its obligations under this Section. For purposes of this Section, `Beneficial Owner" means 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.
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ARTICLE VII
PREPAYMENT OF INSTALLMENT PAYMENTS
Section 7.1. Prepayment.
(a) The District may or shall, as the case may be, prepay from the Net Proceeds
as provided herein on any date, all or any part on any Installment Payment Date, of the principal
amount of the unpaid Installment Payments at a prepayment price equal to the sum of the principal
amount prepaid plus accrued interest thereon to the date of prepayment.
(b) The District may prepay the Installment Payments in the order as directed in a
Written Request of the District to the Trustee, and by lot within a maturity, as a whole or in part, on
any date on or after [ ] from any available funds. The principal amount of the
unpaid Installment Payments is payable at a prepayment price equal to the principal amount of the
Installment Payments to be prepaid plus accrued interest thereon to the date of prepayment without
premium.
Notwithstanding any such prepayment, the District shall not be relieved of its obligations
hereunder, including its obligations under Article IV, until the Purchase Price shall have been fully
paid (or provision for payment thereof shall have been provided to the written satisfaction of the
Corporation).
Section 7.2. Method of Prepayment. Before making any prepayment pursuant to
Section 7.1(a), the District may, within five (5) days following the event permitting the exercise of
such right to prepay or creating such obligation to prepay, give written notice to the Corporation and
the Trustee describing such event and specifying the date on which the prepayment of the Certificates
will be paid, which date shall be not less than thirty (30) days from the date such notice is given,
unless such prepayment must occur on an Interest Payment Date, in which case such date shall be the
next Interest Payment Date with respect to which notice of prepayment may be timely given pursuant
to the Trust Agreement.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES OF THE CORPORATION
Section 5.1. Events of Default and Acceleration of Maturities. If one or more of the
following Events of Default shall happen, that is to say --
(a) if default shall be made by the District in the due and punctual payment of
any Installment Payment or any Contract or Bond when and as the same shall become due and
payable;
(b) if default shall be made by the District in the performance of any of the other
agreements or covenants required herein or in any Contract or Bond to be performed by it, and such
default shall have continued for a period of thirty (30) days after the District shall have been given
notice in writing of such default by the Corporation;
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(c) if the District shall file 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 shall approve 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 shall assume 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 (c) and(d) above, the Corporation shall, with the written consent of the Bond Insurer so long
as the Bond Insurance Policy is in full force and effect, and for any other such Event of Default the
Corporation may, with the written consent of the Bond Insurer so long as the Bond Insurance Policy
is in full force and effect, and in each and every such case the Corporation, at the written direction of
the Bond Insurer so long as the Bond Insurance Policy is in full force and effect by notice in writing
to the District, shall declare the entire principal amount of the unpaid Installment Payments and the
accrued interest thereon to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable, anything contained herein to the contrary
notwithstanding. This subsection 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 shall
have been so declared due and payable and before any judgment or decree for the payment of the
moneys due shall have been obtained or entered the District shall 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 Bond referred to in clause (a) above due prior to such declaration and the
accrued interest thereon, with interest on such overdue installments, at the rate or rates applicable 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 reason of
such declaration) shall have been made good or cured to the satisfaction of the Corporation and the
Bond Insurer or provision deemed by the Corporation and the Bond Insurer to be adequate shall have
been made therefor, then and in every such case the Corporation and the Bond Insurer, by written
notice to the District, may rescind and annul such declaration and its consequences; but no such
rescission and annulment shall extend to or shall affect any subsequent default or shall impair or
exhaust any right or power consequent thereon.
Section 8.2. Application of Funds Upon Acceleration. Upon the date of the declaration of
acceleration as provided in Section 8.1, all Revenues thereafter received and all amounts in the Rate
Stabilization Fund shall be applied in the following order-
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 and amounts payable to the Bond Insurer pursuant to Section 5.7 of
the Trust Agreement;
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DOCS S F/59523 v 6/022925-0017
Second, to the payment of the Operation and Maintenance Costs; and
Third, 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 on the overdue installments at the rate or rates of interest applicable to the unpaid
Installment Payments and such Bonds and Contracts if paid in accordance with their
respective terms.
Section 8.3. Other Remedies of the Corporation. The Corporation shall have the right
with the written consent of the Bond Insurer so long as the Bond Insurance Policy is in full force and
effect and shall at the direction of the Bond Insurer so long as the Bond Insurance Policy is in full
force and effect:
(a) by mandamus or other action or proceeding or suit at law or in 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 or his duties under the
Law and the agreements and covenants required to be performed by it or him contained herein;
(b) by suit in equity to enjoin any acts or things which are unlawful or violate the
rights of the 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 herein, neither the Corporation nor the Bond Insurer
shall have a security interest in or mortgage on the Project, the Water System or other assets of the
District, and no default hereunder shall result in the loss of the Project, the Water System or other
assets of the District.
Section 8.4. Non-Waiver. Nothing in this article or in any other provision hereof shall
affect or impair the obligation of the District, which is absolute and unconditional, to pay the
Installment Payments to the Corporation at the respective due dates or upon prepayment from the Net
Revenues, the Revenue Fund and the other funds herein pledged for such payment, or shall affect or
impair the right of the Corporation, which is also absolute and unconditional, to institute suit to
enforce such payment by virtue of the contract embodied herein.
A waiver of any default or breach of duty or contract by the Corporation shall 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 shall impair any
such right or remedy or shall 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 Corporation by the
Law or by this article may be enforced and exercised from time to time and as often as shall be
deemed expedient by the Corporation.
If any action, proceeding or suit to enforce any right or exercise any remedy is discontinued
or abandoned, the District, the Bond Insurer and the Corporation shall be restored to their former
positions,rights and remedies as if such action, proceeding or suit had not been brought or taken.
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DOCSSF/59523v6/022925-0017
Section 8.5. Remedies Not Exclusive. No remedy herein conferred upon or reserved to
the Corporation is intended to be exclusive of any other remedy, and each such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now or hereafter
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 the Law or any other law.
If any action, proceeding or suit to enforce any right or exercise any remedy is discontinued
or abandoned, the Trustee, the Bond Insurer and Certificate Owners shall be restored to their former
positions.
ARTICLE IX
DISCHARGE OF OBLIGATIONS
Section 9.1. Discharge of Obligations.L
(a) When all or any portion of the Installment Payments shall have become due
and payable in accordance herewith or a written notice of the District to prepay all or any portion of
the Installment Payments shall have been filed with the Trustee; and
(b) there shall 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 shall have been made for paying all fees and expenses of the
Trustee, then and in that event, if an opinion of Bond Counsel acceptable to the Trustee is filed with
the Trustee to the effect that the actions authorized by and taken pursuant to this Article IX shall not
adversely affect the exclusion from gross income for federal income tax purposes of the interest
portion of the Installment Payments, the right, title and interest of the Corporation herein and the
obligations of the District hereunder shall, 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 shall cause an accounting for such
period or periods as may be requested by the District to be prepared and filed with the District and
shall 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 shall 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 hereto 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 shall continue to be held by the
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DOCSSFl59523WO22925-00 P
Trustee in trust for the payment of the Installment Payments and shall be applied by the Trustee to
the payment of the Installment Payments of the District.
ARTICLE X
MISCELLANEOUS
Section 10.1. Liability of District Limited to Revenues. Notwithstanding anything
contained herein, the District shall 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 hereunder
or for the performance of any agreements or covenants required to be performed by it contained
herein. The District may, however, advance moneys for any such purpose so long as such moneys
are derived from a source legally available for such purpose and may be legally used by the District
for such purpose.
The obligation of the District to make the Installment Payments is a special obligation of the
District payable solely from the Net Revenues, 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 limitation or restriction.
Section 10.2. Benefits of Installment Purchase Agreement Limited to Parties. Nothing
contained herein, expressed or implied, is intended to give to any person other than the District, the
Bond Insurer or the Corporation any right, remedy or claim under or pursuant hereto, and any
agreement or covenant required herein to be performed by or on behalf of the District or the
Corporation shall be for the sole and exclusive benefit of the other party and the Bond Insurer.
Section 10.3. Successor Is Deemed Included in all References to Predecessor. Whenever
either the District or the Corporation is named or referred to herein, such reference shall 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 hereby to be performed by or on behalf
of the District or the Corporation shall bind and inure to the benefit of the respective successors
thereof whether so expressed or not.
Section 10.4. Waiver of Personal Liability. No director, officer or employee of the District
shall be individually or personally liable for the payment of the Installment Payments, but nothing
contained herein shall relieve any director, officer or employee of the District from the performance
of any official duty provided by any applicable provisions of law or hereby.
Section 10.5. Article and Section Headings Gender and References. The headings or titles
of the several articles and sections hereof and the table of contents appended hereto shall be solely
for convenience of reference and shall not affect the meaning, construction or effect hereof, and
words of any gender shall be deemed and construed to include all genders. All references herein to
"Articles," "Sections" and other subdivisions or clauses are to the corresponding articles, sections,
subdivisions or clauses hereof; and the words "hereby", "herein," "hereof," "hereto," "herewith" and
other words of similar import refer to this Agreement as a whole and not to any particular article,
section, subdivision or clause hereof.
Section 10.6. Partial Invalidity. If any one or more of the agreements or covenants or
portions thereof required hereby to be performed by or on the part of the District or the Corporation
25
DOCSSF/59523 v6/022925-0017
shall be contrary to law, then such agreement or agreements, such covenant or covenants or such
portions thereof shall be null and void and shall be deemed separable from the remaining agreements
and covenants or portions thereof and shall in no way affect the validity hereof. The District and the
Corporation hereby declare that they would have executed this Agreement, and each and every other
article, section, paragraph, subdivision, sentence, clause and phrase hereof irrespective of the fact
that any one or more articles, sections, paragraphs, subdivisions, sentences, clauses or phrases hereof
or the application thereof to any person or circumstance may be held to be unconstitutional,
unenforceable or invalid.
Section 10.7. Assi ngLment. This Agreement and any rights hereunder may be assigned by
the Corporation, as a whole or in part, without the necessity of obtaining the prior consent of the
District.
Section 10.8. Net Contract. This Agreement shall be deemed and construed to be a net
contract, and the District shall pay absolutely net during the term hereof the Installment Payments
and all other payments required hereunder, free of any deductions and without abatement, diminution
or set-off whatsoever.
Section 10.9. California Law. THE INSTALLMENT PURCHASE AGREEMENT
SHALL BE CONSTRUED AND GOVERNED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA.
Section 10.10. Notices. All written notices to be given hereunder shall be given by mail to
the party entitled thereto at its address set forth below, or at such other address as such party may
provide to the other party in writing from time to time, namely:
If to the District: Truckee Donner Public Utility District
P.O. Box 309
11570 Donner Pass Road
Truckee, CA 96160
Attention: General Manager
If to the Corporation: Truckee Donner Public Utility District Financing Corporation
P.O. Box 309
11570 Donner Pass Road
Truckee, CA 96160
Attention: President
If to the Bond Insurer: [
l
Attention:
Section 10.11. Effective Date. This Agreement shall become effective upon its execution
and delivery, and shall terminate when the Purchase Price shall have been fully paid(or provision for
the payment thereof shall have been made to the written satisfaction of the Corporation).
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DOCSSF/59523v6/022925-0017
Section 10.12. Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of which shall constitute but one and
the same instrument.
Section 10.13. Indemnification of Corporation. The District hereby agrees to 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 expenses, arising out of or in connection with
the acceptance or the performance of its duties hereunder and under the Trust Agreement; provided
that no indemnification will be made for willful misconduct, negligence or breach of an obligation
hereunder or under the Trust Agreement by the Corporation.
Section 10.14. Amendments Permitted. This 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 by an amendment hereto which shall 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, shall have been filed with
the Trustee and, so long as the Bond Insurance Policy is in full force and effect, with the prior written
consent of the Bond Insurer. No such modification or amendment shall (1) extend the stated
maturities of the Certificates, or reduce the rate of interest represented thereby, or change the method
of computing the rate of interest 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
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 this 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.
This 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 hereto
which shall become binding upon adoption, without the consent of the Owners of any Certificates but
with the written consent of the Bond Insurer, 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 this Agreement other covenants and agreements thereafter to be observed or to surrender
any right or power herein reserved to or conferred upon the Corporation or the District, and which
shall not adversely affect the interests of the Owners of the Certificates;
(b) to cure, correct or supplement any ambiguous or defective provision
contained in this Agreement or in regard to questions arising under this Agreement, as the
Corporation or the District may deem necessary or desirable and which shall 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 of the Certificates may modify any of the
rights or obligations of the Trustee without its written consent thereto or the rights or obligations of
the Bond Insurer without its written consent thereto.
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The Trustee shall promptly upon execution and delivery of any amendment pursuant to this
Section send by first class mail a copy of such amendment to the Bond Insurer.
Section 10.15. Notice to Ratin&A egLncy. Copies of all amendments to this Agreement shall
be mailed by first class mail to Standard & Poor's Ratings Services at least 15 days prior to the
effective date of such amendment.
28
DOCSSF/59523v6/022925-0017
IN WITNESS WHEREOF, the parties hereto have executed and attested this Agreement by
their officers thereunto duly authorized as of the day and year first written above.
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
President
ATTEST
Clerk of the Board of the District
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
FINANCING CORPORATION
President
S-1
DOCS SF/59523v6/022925-0017
EXHIBIT A
PURCHASE PRICE
1. The principal amount of payments to be made by the District hereunder is
2. The installment payments of principal and interest are payable in the amounts and on
the Installment Payment Dates as follows:
Amount Attributable to Amount Attributable to
Installment Payment Date Principal Interest
A-1
DOCSSF/59523v6/022925-0017
EXHIBIT B
DESCRIPTION OF THE PROJECT
1996 Project
The 1996 Project comprises the following described improvements to the Water System, a
portion of which correspond to the portion of Truckee Donner Public Utility District Refunding
Certificates of Participation (Water System Improvement Projects), Series 1996 which are being
refinanced:
Component Cost
Replacement of Water Pipeline in Tahoe Donner
and Sierra Meadows Subdivisions
Purchase of Telemetry System
Replacement of Donner Trails Storage Tank
Construction of Hirshdale Water Treatment Plant
Water Line and Pump Improvements
Pipe Lining and Future Access Improvements in
the Vicinity of Interstate 80
2006 PROJECT
The 2006 Project comprises the following described improvements to the Water System.
Component Cost
Brockway Transmission Pipeline Project $4,000,000
Pipeline Replacement Projects (2006-2010) 12,300,000
,479272
180,000272
Donner Lake Acquisition and Construction Project 1,
Generators for District Building and Pumping Facilities 0000
SCADA System Replacement
$18, 2
B-1
DOCS SF/59523 v6/022925-0017
EXHIBIT C
[FORM OF REQUISITION NO. _FOR
DISBURSEMENT FROM ACQUISITION FUND]
$[ ]
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
REFUNDING REVENUE CERTIFICATES OF PARTICIPATION
(WATER SYSTEM IMPROVEMENT PROJECTS),
SERIES 2006
The undersigned hereby states and certifies:
(i) that he is the duly appointed, qualified and acting General Manager of the Truckee
Donner Public Utility District, a California public utility district organized and existing under the
laws of the State of California (the "District"), and as such, is familiar with the facts herein certified
and is authorized to certify the same;
(ii) that, pursuant to Section 3.6 of that certain Installment Purchase Agreement, dated as
of September 1, 2006 (the "Installment Purchase Agreement"), by and between the Truckee Donner
Public Utility District Public Financing Corporation and the District, the undersigned hereby requests
the Administrative Services Manager/Treasurer of the District to disburse this date the following
amounts from the Acquisition Fund established under the Installment Purchase Agreement, to the
payees designated on the attached Exhibit A to Exhibit C;
(iii) that each obligation mentioned herein has been incurred by the District and is a
proper charge against the Acquisition Fund;
(iv) that any approval required under the California Environmental Quality Act, as
amended (Division 13 of the California Public Resources Code), prior to the expenditure of such
amount for the purpose set forth on the attached Exhibit A has been received and is final;
(v) that there has not been filed with or served upon the District notice of any lien, right
to lien or attachment upon, or claim affecting the right to receive payment of, any of the moneys
payable to any of the payees named on the attached Exhibit A, which has not been released or will
not be released simultaneously with the payment of such obligation, other than materialmen's or
mechanics' liens accruing by mere operation of law.
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
General Manager
C-1
DOCS SF/59523v6/022925-0017
Exhibit A to EXHIBIT C
ACQUISITION FUND DISBURSEMENTS
Item Purpose of
Number Payee Name and Address Obligation Amount
C-2
DOCSSP59523 v6/022925-0017
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section1.1. Definitions..................................................................................................................1
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations by the District..................................................................................9
Section 2.2. Representations and Warranties by the Corporation................................................10
ARTICLE III
SALE AND PURCHASE OF THE PROJECT
Section 3.1. Sale and Purchase of the Project..............................................................................10
Section 3.2. Purchase and Sale of the Project..............................................................................10
Section3.3. Title..........................................................................................................................10
Section 3.4. Acquisition and Construction of the Project............................................................l
Section 3.5. Changes to the 2006 Project.....................................................................................11
Section 3.6. Acquisition Fund......................................................................................................11
ARTICLE IV
INSTALLMENT PAYMENTS
Section 4.1. Purchase Price..........................................................................................................12
Section 4.2. Installment Payments...............................................................................................12
ARTICLE V
SECURITY
Section 5.1. Pledge of Revenues..................................................................................................13
Section 5.2. Allocation of Revenues............................................................................................13
Section 5.3. Additional Contracts and Bonds .................14
.............................................................
Section 5.4. Investments ...........15
...................................................................................................
Section 5.5. Rate Stabilization Fund............................................................................................15
i
DOCS SF/59523v6/022925-0017
TABLE OF CONTENTS
(continued)
Page
ARTICLE VI
COVENANTS OF THE DISTRICT
Section 6.1. Compliance with Installment Purchase Agreement and Ancillary
..............1
Agreements................................................................................................
Section 6.2. Against Encumbrances.............................................................................................16
Section 6.3. Against Sale or Other Disposition of Property ........................................................16
Section 6.4. Against Competitive Facilities.................................................................................16
Section 6.5. Tax Covenants ........ ...............................................................................................16
Section 6.6. Maintenance and Operation of the Water System ...................................................17
Section 6.7. Payment of Claims...................................................................................................17
Section 6.8. Compliance with Contracts......................................................................................17
Section6.9. Insurance... ............................................................................................................18
Section 6.10. Accounting Records; Financial Statements and Other Reports...............................1
Section 6.11. Protection of Security and Rights of the Corporation.................
.............................19
Section 6.12. Payment of Taxes and Compliance with Governmental Regulations......................19
Section 6.13. Amount of Rates and Charges. ...............................................................................
Section 6.14. Collection of Rates and Charges..............................................................................19
Section 6.15. Eminent Domain Proceeds.......................................................................................19
Section 6.16. Further Assurances...................................................................................................20
Section 6.17. Enforcement of Contracts.......................................................................
Section 6.18. Continuing Disclosure..............................................................................................20
ARTICLE VII
PREPAYMENT OF INSTALLMENT PAYMENTS
Section7.1. Prepayment. .............................................................................................................21
Section 7.2. Method of Prepayment.............................................................................................21
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES OF THE CORPORATION
Section 8.1. Events of Default and Acceleration of Maturities ...................................................21
Section 8.2. Application of Funds Upon Acceleration................................................................22
Section 8.3. Other Remedies of the Corporation.........................................................................23
Section8.4. Non-Waiver..............................................................................................................23
Section 8.5. Remedies Not Exclusive..........................................................................................24
ii
DOCSSF/59523v6/022925-00 P
TABLE OF CONTENTS
(continued)
Pay
ARTICLE IX
DISCHARGE OF OBLIGATIONS
Section 9.L Discharge of Obligations. ........................................................................................24
ARTICLE X
MISCELLANEOUS
Section 10.1. Liability of District Limited to Revenues................................................................25
Section 10.2. Benefits of Installment Purchase Agreement Limited to Parties.............................25
Section 10.3. Successor Is Deemed Included in all References to Predecessor............................25
Section 10.4. Waiver of Personal Liability....................................................................................25
Section 10.5. Article and Section Headings, Gender and References ...........................................25
Section 10.6. Partial Invalidity.......................................................................................................25
Section10.7. Assignment ..............................................................................................................26
Section 10.8. Net Contract.............................................................................................................26
Section 10.9. California Law.........................................................................................................26
Section10.10. Notices.....................................................................................................................26
Section 10.11. Effective Date..........................................................................................................26
Section 10.12. Execution in Counterparts........................................................................................27
Section 10.13. Indemnification of Corporation ...............................................................................27
Section 10.14. Amendments Permitted............................................................................................27
Section 10.15. Notice to Rating Agency..........................................................................................28
EXHIBIT A PURCHASE PRICE..................................................................................................A-1
......................
EXHIBIT B DESCRIPTION OF THE PROJECT ....................................;.............B-1
EXHIBIT C FORM OF REQUISITION NO. _FOR DISBURSEMENT FROM
ACQUISITIONFUND.............................................................................................C-1
DOGS SF/59523v6/022925-0017
Stradling Yocca Carlson& Rauth
Draft of 9114106
ASSIGNMENT AGREEMENT
by and between
TRUCKEE DONNER PUBLIC UTILITY DISTRICT FINANCING CORPORATION
and
THE BANK OF NEW YORK TRUST COMPANY,N.A.
as Trustee
Dated as of September 1,2006
relating to
$[
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
REFUNDING REVENUE CERTIFICATES OF PARTICIPATION,SERIES 2006
DOGS SF/59563v2/022925-0017
ASSIGNMENT AGREEMENT
This Assignment Agreement is made and entered into as of September 1, 2006 by and
between the Truckee Donner Public Utility District Financing Corporation (the "Corporation"), a
nonprofit public benefit corporation duly organized and existing under the laws of the State of
California and The Bank of New York Trust Company, N.A., a national banking association duly
organized and existing under the laws of the United States of America, as trustee (the"Trustee");
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL AGREEMENTS AND
COVENANTS CONTAINED HEREIN AND FOR OTHER VALUABLE CONSIDERATION, THE
PARTIES HERETO DO HEREBY AGREE AS FOLLOWS:
Section 1. Assignment
The Corporation, for good and valuable consideration in hand received, does hereby sell,
assign and transfer to the Trustee without recourse, for the benefit of the owners of the Truckee
Donner Public Utility District Refunding Revenue Certificates of Participation, Series 2006 (the
"Certificates"), to be executed and delivered by the Trustee pursuant to the Trust Agreement, dated
as of September 1, 2006 (the "Trust Agreement"), by and among the Truckee Donner Public Utility
District (the "District"), the Corporation and the Trustee, all of its rights, title, and interest in the
Installment Purchase Agreement, dated as of September 1, 2006 (the "Installment Purchase
Agreement"), by and between the District and the Corporation including the right to receive all
installment payments from the District under the Installment Purchase Agreement (but not including
the right to be indemnified and the right to receive notices pursuant to the Installment Purchase
Agreement), together with any and all of the other rights of the Corporation under the Installment
Purchase Agreement as may be necessary to enforce payment of such installment payments when
due or otherwise to protect the interests of the owners of the Certificates. The assignment herein is
absolute and presently effective.
Section 2. Acceptance.
The Trustee hereby accepts the foregoing assignment for the purpose of securing the right
assigned to it to receive all such installment payments from the District under the Installment
Purchase Agreement and the other rights assigned to it, subject to the terms and provisions of the
Trust Agreement, and all such installment payments shall be applied and the rights so assigned shall
be exercised by the Trustee as provided in the Trust Agreement.
Section 3. Conditions.
This Assignment Agreement shall confer no rights or impose no obligations upon the Trustee
beyond those expressly provided in the Trust Agreement. This Assignment Agreement shall
constitute a complete assignment by the Corporation of all of its rights under and pursuant to the
Installment Purchase Agreement, except as otherwise provided herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement by
their officers thereunto duly authorized as of the day and year first written above.
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
FINANCING CORPORATION
By:
Its: President
THE BANK OF NEW YORK TRUST COMPANY,
N.A., as Trustee
By:
Its: Authorized Officer
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5tradling Yocca Carlson&Rauth
Draft of 911412006
TRUST AGREEMENT
by and among
THE BANK OF NEW YORK TRUST COMPANY, N.A.
as Trustee
and
TRUCKEE DONNER PUBLIC UTILITY DISTRICT FINANCING CORPORATION
as Corporation
and
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
Dated as of September 1, 2006
Relating to
$[ l
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
REFUNDING REVENUE CERTIFICATES OF PARTICIPATION
(WATER SYSTEM IMPROVEMENT PROJECTS),
SERIES 2006
DOCSSF/59525v5/022925-0017
TRUST AGREEMENT
THIS TRUST AGREEMENT, made and entered into as of September 1, 2006 (the
"Agreement"), by and among THE BANK OF NEW YORK TRUST COMPANY, N.A., as trustee
(the "Trustee"), a national banking association duly organized and existing under the laws of the
United States of America, and TRUCKEE DONNER PUBLIC UTILITY DISTRICT FINANCING
CORPORATION, as seller, hereinafter defined, a nonprofit public benefit corporation duly
organized and existing under the laws of the State of California (the "Corporation"), and TRUCKEE
DONNER PUBLIC UTILITY DISTRICT, as purchaser, a public utility district duly organized and
existing under the laws of the State of California(the"District");
WITNESSETH:
In consideration of the mutual covenants herein contained and for other valuable
consideration, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION; CONTENTS OF
CERTIFICATES AND OPINIONS; RECITALS
Section 1.1. Definitions. Unless the context otherwise requires, the terms defined in this
section shall for all purposes hereof and of any amendment hereof or supplement hereto and of any
report or other document mentioned herein or therein have the meanings defined herein, the
following definitions to be equally applicable to both the singular and plural forms of any of the
terms defined herein. All capitalized terms used herein and not defined herein shall have the
meanings ascribed thereto in the Installment Purchase Agreement:
Agreement. The term "Agreement"means this Trust Agreement, as originally executed or as
it may from time to time be amended or supplemented as provided for herein.
Assignment Agreement. The term "Assignment Agreement" means that certain Assignment
Agreement, by and between the Corporation and the Trustee, dated as of September 1, 2006 as
originally executed or as it may from time to time be amended or supplemented in accordance with
its terms.
Bond Insurance Policy. The term "Bond Insurance Policy" means the municipal bond new
issue insurance policy issued by the Bond Insurer that guarantees the payment of principal and
interest with respect to the Certificates when due.
Bond Insurer. "Bond Insurer" means [ ], a
[ ], or any successor thereto.
Certificate Payment Fund. The term "Certificate Payment Fund" means the fund by that
name established in Section 5.2 hereof.
Certificates. The term "Certificates" means the certificates of participation executed and
delivered by the Trustee pursuant to this Agreement.
DOCSSF/59525v5/022925-0017
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 Section 3.4 hereof.
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 bond insurance
premiums (if any), fees and charges for preparation, execution and safekeeping of the Certificates
and any other cost, charge or fee in connection with the original execution and delivery of the
Certificates.
Depository or DTC. The term "Depository" or "DTC" means The Depository Trust
Company, New York, 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.
Escrow Agent. The term "Escrow Agent" means The Bank of New York Trust Company,
N.A., as escrow agent pursuant to the terms of the Escrow Agreement, or its successor thereunder.
Escrow Agreement. The term "Escrow Agreement" means the Escrow Agreement, dated as
of September 1, 2006, by and between the District and the Escrow Agent, as originally executed or as
it may from time to time be amended or supplemented in accordance with its terms.
Fiscal Year. The term "Fiscal Year" means the period beginning on January 1 of each year
and ending on the last day of December of the same year.
Information Services. The term "Information Services" means Financial Information, Inc.'s
"Daily Called Bond Service," 30 Montgomery Street, 10th Floor, Jersey City, New Jersey 07302,
Attention: Editor; Moody's Municipal and Government, 5250 77 Center Drive, Suite 150, Charlotte,
North Carolina 28217, Attention: Called Bond Department; and Standard and Poor's J.J. Kenny
Information Services' "Called Bond Record," 55 Water Street, 45th Floor, New York, New York
10041; and, in accordance with then current guidelines of the Securities and Exchange Commission,
such other addresses and/or such other services providing information with respect to called bonds as
the District may designate in a Written Request of the District delivered to the Trustee.
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 Agreement. The term "Installment Purchase Agreement" means the
Installment Purchase Agreement, dated as of September 1, 2006, by and between the District and the
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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
Section 5.2 hereof.
Investment Agreement. The term "Investment Agreement" means an investment agreement
supported by appropriate opinions of counsel; provided the guarantor is rated at least"AA-" by S&P
and"AaY by Moody's.
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.
Local Agency Investment Fund. The term "Local Agency Investment Fund" means the fund
by that name established under the California Government Code, Section 16429.1 et seq.
Nominee. The term "Nominee" means the nominee of the Depository, which may be the
Depository, as determined from time to time pursuant to Section 2.10 hereof.
Outstandingz. The term "Outstanding," when used as of any particular time with reference to
Certificates, means (subject to the provisions of Section 11.4) 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 Section 10.1; and(3) Certificates in lieu of or in substitution
for which other Certificates shall have been executed and delivered by the Trustee pursuant to
Section 2.10; provided however, that Certificates paid from amounts paid by the Bond Insurer shall
not be considered paid or deemed paid for purposes of this Agreement but shall remain outstanding
until paid from Installment Payments.
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 shall 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 May 15 and November 15
in each year commencing May 15, 2007 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 Section 8.1 of the Installment Purchase Agreement.
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DOCSSF/59525 v5/022925-0017
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, or
(3) pre-refunded municipal obligations defined as any bonds or other obligations
of any state of the United States of America or of any agency, instrumentality or local governmental
unit of any such state which are not callable at the option of the obligor prior to maturity or as to
which irrevocable instructions have been given by the obligor to call on the date specified in the
notice and which are rated, based on the escrow, in the highest rating category of S&P and Moody's
or any successor thereto; or
(4) the interest component of Resolution Funding Corp. (REFCORP) strips
which have been stripped by request to the Federal Reserve Bank of New York, 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 (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 "Aaa" by
S&P and Moody's, respectively, 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) which are
either insured by the Federal Deposit Insurance Corporation or have a rating on their short term
certificates of deposit on the date of purchase of"A-1" or"A-1+"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 rating of the bank);
(4) commercial paper which is rated at the time of purchase at least "A-l" by
S&P and"P-1"by Moody's and which matures not more than 270 days after the date of purchase;
(5) investments in a money market fund rated "AAAm" or "AAAm-G" or better
by S&P, including such funds for which the Trustee or an affiliate acts as investment advisor or
provides other services;
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(6) bonds or notes issued by any state or municipality which are rated AA or
better at the time of purchase by S&P;
(7) any Investment Agreement;
(8) the Local Agency Investment Fund; and
(9) other forms of investments approved in writing by the Bond Insurer.
Prepayment Fund. The term "Prepayment Fund" means the fund by that name established in
Section 5.2 hereof.
Prepayment Price. The term "Prepayment Price" means the principal amount with respect to
any Certificate (or portion thereof ) plus the applicable premium, if any, payable upon prepayment
thereof pursuant to the provisions of such Certificate and this Agreement.
Principal Corporate Trust Office. The term "Principal Corporate Trust Office" means the
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.
Principal Fund. The term "Principal Fund" means the fund by that name established in
Section 5.2 hereof.
Rebate Fund. The term "Rebate Fund" means the fund by that name established in
Section 5.6 hereof.
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
Section 5.2 hereof.
Securities Depositories. The term "Securities Depositories" means: The Depository Trust
Company, 55 Water Street, New York, New York 10041, Attn: Redemption Area, Fax-(212) 855-
7232 or 7233; 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 District 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 issued by states and political subdivisions, and duly admitted to
practice law before the highest court of any state of the United States of America.
State. The term "State" means the State of California.
Statement of the Corporation 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 Clerk 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
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DOCS SF/59525 v5/022925-0017
execute such a document on its behalf. If and to the extent required by the provisions of Section 1.3,
each Statement of the Corporation or District shall include the statements provided for in Section 1.3.
Tax Certificate. The Term "Tax Certificate" means the Tax Certificate dated the date of
closing, 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 The Bank of New York Trust Company, N.A., a national
banking association duly organized and existing under and by virtue of the laws of the United States
of America 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 hereunder.
Written Consent of the Corporation 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 Authorized Representative or (ii) the District by the
President of its Board of Directors or the Manager of the District 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.
Section 1.2. Rules of Construction. Words of any gender shall be deemed and construed
to include all genders, and words importing persons shall include corporations and associations,
including public bodies, as well as natural persons. Unless the context otherwise indicates, words
importing the singular number shall include the plural number and vice versa.
Section 1.3. Content of Statements and Opinions. Every statement or opinion with respect
to compliance with a condition or covenant provided for in this Agreement, including each Statement
of the Corporation, shall include (a) a statement that the person or persons making or giving such
statement or opinion have read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such statement or opinion are based; (c)a statement that, in the
opinion of the signers, they have made or caused to be made such examination or investigation as is
necessary to enable them to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (d) a statement as to whether, in the opinion of the signers,
such condition or covenant has been complied with.
Any such statement or opinion made or given by an officer of the Corporation may be based,
insofar as it relates to legal or accounting matters, upon a statement or opinion of or representations
by counsel, accountants or consultants, unless such officer knows, or in the exercise of reasonable
care should have known, that the statement or opinion or representations with respect to the matters
upon which his statement or opinion may be based, as aforesaid, are erroneous. Any such statement
or opinion made or given by counsel, accountants or consultants may be based, insofar as it relates to
factual matters, upon information with respect to which is in the possession of the Corporation, or
upon the statement or opinion of or representations by an officer or officers of the Corporation,
unless such counsel, accountant or consultant knows, or in the exercise of reasonable care should
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have known, that the statement or opinion or representations with respect to the matters upon which
his opinion may be based as aforesaid are erroneous.
Section 1.4. Recitals.
(a) Installment Purchase Agreement. The Corporation has agreed to assist the
District in financing and refinancing the Project and the District has agreed to acquire certain
facilities from the Corporation as described in the Installment Purchase Agreement.
(b) Installment Payments. Under the Installment Purchase Agreement, the
District is obligated to pay to the Corporation or its assigns Installment Payments for the purchase of
the Project.
(c) Assignment Agreement. For the purpose of obtaining the moneys required to
be deposited by the Corporation with the Trustee, and for the purpose of securing the obligations of
the Corporation hereunder, the Corporation has assigned and transferred certain of its rights under the
Installment Purchase Agreement to the Trustee, pursuant to the Assignment Agreement; and in
consideration of such assignment and the execution of this Agreement, the Trustee has agreed to
execute and deliver certificates of participation, each evidencing an interest in the Installment
Payments in an aggregate amount equal to the aggregate principal amount of certificates of
participation so executed and delivered.
(d) Conditions Precedent Satisfied. The District and the Corporation hereby
certify that all acts, conditions and things required by law to exist, happen and be performed
precedent to and in connection with the execution and entering into of this Agreement have happened
and have been performed in regular and due time, form and manner as required by law, and the
parties hereto are now duly empowered to execute and enter into this Agreement.
ARTICLE II
CERTIFICATES; TERMS AND PROVISIONS
Section 2.1. Preparation of Certificates. The Trustee is hereby authorized to execute
certificates of participation, to be denominated "Truckee Donner Public Utility District (Water
System Improvement Projects) Refunding Revenue Certificates of Participation, Series 2006" in an
aggregate principal amount of $[ ] evidencing undivided interests in Installment
Payments to be paid by the District under the Installment Purchase Agreement.
Section 2.2. Denominations, Medium and Place of Payment; Dating. The Certificates
shall be delivered in the form of fully registered Certificates and in the denomination of$5,000 each
or any integral multiple thereof; provided that no Certificate shall have principal represented thereby
maturing in more than one year.
The principal and Prepayment Price with respect to the Certificates shall be payable in lawful
money of the United States of America upon presentation and surrender thereof at the Principal
Corporate Trust Office of the Trustee. Interest with respect to the Certificates shall be payable by
check or draft of the Trustee mailed by first class mail on each Payment Date of the Certificates to
the respective Certificate Owners of record thereof as of the close of business on the Record Date at
the addresses shown on the books required to be kept pursuant to Section 2.8 or, upon the written
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DOCSSF/59525 v5/022925-0017
request received by the Trustee of an Owner of at least $1,000,000 in aggregate principal amount of
the Certificates, by wire transfer of immediately available funds to an account in the United States
designated by such Owner prior to the applicable Record Date.
The Certificates shall be dated as of the date of initial delivery thereof. Interest with respect
to the Certificates shall be payable from the Payment Date preceding their date of execution, unless
such date shall be after a Record Date and on or before the succeeding Payment Date, in which case
interest shall be payable from such Payment Date or unless such date shall be on or before the first
Record Date, in which case interest shall be payable as of the date of initial delivery thereof
provided, however, that if, as shown by the records of the Trustee, interest represented by the
Certificates shall be in default, Certificates executed in exchange for Certificates surrendered for
transfer or exchange shall represent interest from the last date to which interest has been paid in full
or duly provided for with respect to the Certificates, or, if no interest has been paid or duly provided
for with respect to the Certificates, as of the date of initial delivery thereof.
Section 2.3. Payment of Principal and Interest with Respect to Certificates.
(a) The Certificates shall become payable on November 15 in the years and in the
amounts and with an interest component as provided in subsection(b)below at the rates, as follows:
Payment Date Principal Interest
November 15 Amount Rate
Principal or Prepayment Price due with respect to the Certificates at maturity or prepayment
thereof shall, to the extent of the aggregate principal amount stated upon the Certificates, represent
the sum of those portions of the Installment Payments designated as principal coming due on the
Installment Payment Dates immediately preceding November 15 in each year.
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(b) Interest with respect to the Certificates shall be payable on each Interest
Payment Date to and including the date of maturity or prior prepayment. Said interest shall represent
the sum of those portions of the Installment Payments designated as interest coming due on the
Installment Payment Dates, at the rates set forth in subsection(a) above.
Section 2.4. Form of Certificates. The Certificates and the form of assignment to appear
thereon shall be in substantially the form set forth in Exhibit A hereto with necessary or appropriate
variations, omissions and insertions as permitted or required by this Agreement.
Section 2.5. Execution. The Certificates shall be executed by and in the name of the
Trustee, as trustee under this Agreement, by the manual signature of an authorized officer or
signatory of the Trustee.
Section 2.6. 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 Section 2.8, 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 shall be surrendered for transfer, the Trustee shall
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 shall cancel and destroy the Certificates it has received.
Section 2.7. 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 respect to
such exchange. Following any exchange of Certificates the Trustee shall cancel and destroy the
Certificates it has received.
The Trustee shall not be required to register the exchange, or transfer pursuant to Section 2.6
or Section 2.7 hereof, of any Certificate (i) within 15 days preceding selection of Certificates for
prepayment or(ii) selected for prepayment.
Section 2.8. Certificate Registration Books. The Trustee will keep or cause to be kept
sufficient books for the registration and transfer of the Certificates, which shall upon reasonable prior
notice and at all reasonable times be open to inspection by the Corporation or the District; and, upon
presentation for such purpose, the Trustee shall, under such reasonable regulations as it may
prescribe, register or transfer or cause to be registered or transferred, on said books, Certificates as
hereinbefore provided.
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The person in whose name any Certificate shall be registered shall be deemed the Owner
thereof for all purposes hereof, and payment of or on account of the interest with respect to and
principal of, and Prepayment Price represented by such Certificate shall be made only to or upon the
order in writing of such registered Owner, which payments shall be valid and effectual to satisfy and
discharge liability upon such Certificate to the extent of the sum or sums so paid.
Section 2.9. Certificates Mutilated, Lost, Destroyed or Stolen. If any Certificate shall
become mutilated, the Trustee shall execute and deliver a new Certificate of like tenor, maturity and
principal amount in exchange and substitution for the Certificate so mutilated, but only upon
surrender to the Trustee of the Certificate so mutilated.
Every mutilated Certificate so surrendered to the Trustee shall be canceled by it and
destroyed. If any Certificate shall be 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 shall be given indemnifying the Trustee, the Corporation and
the District, the Trustee, at the expense of the Certificate Owner, shall execute and deliver a new
Certificate of like tenor and maturity, and numbered as the Trustee shall 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 this Section and
of the expenses which may be incurred by the Trustee under this Section. Any Certificate executed
under the provisions of this Section in lieu of any Certificate alleged to be lost, destroyed or stolen
shall be equally and proportionately entitled to the benefits of this Agreement with all other
Certificates secured by this Agreement. The Trustee shall 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 hereunder or for the purpose of determining
any percentage of Certificates Outstanding hereunder, but both the original and replacement
Certificate shall be treated as one and the same. Notwithstanding any other provision of this Section,
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.
Section 2.10. Book-Entry System.
(a) Election of Book-EntrSystem. Prior to the execution and delivery of the
Certificates, the District may provide that such Certificates shall be initially executed and delivered
as book-entry Certificates. If the District shall elect to deliver any Certificates in book-entry form,
then the District shall 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 shall 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 Section 2.10(e).
With respect to book-entry Certificates, the District and the Trustee shall have no
responsibility or obligation to any Participant or to any person on behalf of which such a Participant
holds an interest in such book-entry Certificates. Without limiting the immediately preceding
sentence, the District and the Trustee shall have no responsibility or obligation with respect to (i) the
accuracy of the records of the Depository, the Nominee, or any Participant with respect to any
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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
book-entry Certificates, including any notice of prepayment, (iii) the selection by the Depository and
its Participants of the beneficial interests in book-entry Certificates to be prepaid in the event the
District prepays the Certificates in part, or (iv) the payment by the Depository or any Participant or
any other person, of any amount with respect to 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 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 shall 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 shall 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, shall 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 herein with respect to Record Dates, the word Nominee in this Trust Agreement shall
refer to such nominee of the Depository.
(b) Delivery of Letter of Representations. In order to qualify the book-entry
Certificates for the Depository's book-entry system, the District and the Trustee shall execute and
deliver to the Depository a Letter of Representations. The execution and delivery of a Letter of
Representations shall 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 shall 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 shall take such
other actions, not inconsistent with this Trust Agreement, as are reasonably necessary to qualify
Book-Entry Certificates for the Depository's book-entry program.
(c) 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 shall 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
subsection(e) hereof. If the District fails to identify another qualified securities depository to replace
the Depository, then the Certificates shall no longer be restricted to being registered in such
Certificate register in the name of the Nominee, but shall be registered in whatever name or names
the Owners transferring or exchanging such Certificates shall designate, in accordance with the
provisions of Sections 2.6 and 2.7 hereof.
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(d) Payments To Depository. Notwithstanding any other provision of this
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
shall 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 herein.
(e) Transfer of Certificates to Substitute Depository.
(i) The Certificates shall be initially executed and delivered as provided
in Section 2.1 hereof. Registered ownership of such Certificates, or any portions thereof, may not
thereafter be transferred except:
(A) to any successor of DTC or its nominee, or of any substitute
depository designated pursuant to clause (B) of subsection (i) of this Section 2.10(e) ("Substitute
Depository"); provided that any successor of DTC or Substitute Depository shall be qualified under
any applicable laws to provide the service proposed to be provided by it;
(B) to any Substitute Depository, 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) is no longer able to carry out its
functions as depository; provided that any such Substitute Depository shall be qualified under any
applicable laws to provide the services proposed to be provided by it; or
(C) 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 (A) or clause (B) of
subsection (i) of this Section 2.10(e), 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 shall prepare or cause to be prepared, shall be executed and
delivered for each maturity of Certificates then Outstanding, registered in the name of such successor
or such Substitute Depository or their Nominees, as the case may be, all as specified in such written
request of the District. In the case of any transfer pursuant to clause (C) of subsection (i)of this
Section 2.10(e), upon receipt of all Outstanding Certificates by the Trustee, together with a written
request of the District to the Trustee, new Certificates, which the District shall prepare or cause to be
prepared, shall 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
Section 2.1 hereof, provided that the Trustee shall not be required to deliver such new Certificates
within a period of less than sixty (60) days from the date of receipt of such written request from the
District.
(iii) In the case of a partial prepayment or an advance refunding of any
Certificates evidencing a portion of the principal maturing in a particular year, DTC or its successor
(or any Substitute Depository or its successor) shall make an appropriate notation on such
Certificates indicating the date and amounts of such reduction in principal, in form acceptable to the
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Trustee, all in accordance with the Letter of Representations. The Trustee shall not be liable for such
Depository's failure to make such notations or errors in making such notations.
(iv) The District and the Trustee shall be entitled to treat the person in
whose name any Certificate is registered as the Owner thereof for all purposes of this Trust
Agreement and any applicable laws, notwithstanding any notice to the contrary received by the
Trustee or the District; and the District and the Trustee shall not have responsibility for transmitting
payments to, communicating with, notifying, or otherwise dealing with any beneficial owners of the
Certificates. Neither the District nor the Trustee shall have any responsibility or obligation, legal or
otherwise, to any such beneficial owners or to any other party, including DTC or its successor (or
Substitute Depository or its successor), except to the Owner of any Certificates, and the Trustee may
rely conclusively on its records as to the identity of the Owners of the Certificates.
ARTICLE III
DELIVERY OF CERTIFICATES; DELIVERY COST FUND
Section 3.1. Delivery of Certificates. The Trustee is hereby authorized to execute and
deliver Certificates in an aggregate principal amount of $[ ] upon the Written Order of
the District.
Section 3.2. Application of Proceeds of Certificates and Certain Other Moneys. The
proceeds derived from the sale of the Certificates in the amount of $ (representing the
aggregate principal amount of the Certificates of$ , less original issue discount of $ ,
less underwriter's discount of $ , less $ paid by the initial purchaser to the Bond
Insurer), shall be deposited with the Trustee, who will deposit $ in the Delivery Cost Fund,
who will transfer$ to the Escrow Agent for deposit in the Escrow Fund, and who will transfer
$ to the District for deposit in the Acquisition Fund.
Section 3.3. Validity of Certificates. The validity of the execution and delivery of the
Certificates is not dependent on and shall not be affected in any way by any proceedings taken by the
District, the Corporation or the Trustee with respect to or in connection with the Installment Purchase
Agreement. The recital contained in the Certificates that all acts, conditions and things required by
the Constitution and statutes of the State of California and this Agreement to exist, to have happened
and to have been performed precedent to and in the delivery thereof do exist, have happened and
have been performed in due time, form and manner as required by law shall be conclusive evidence
of their validity and of compliance with the provisions of law in their delivery.
Section 3.4. Delivery Cost Fund. There is hereby established with the Trustee the
Delivery Cost Fund which the Trustee shall establish and maintain and hold in trust separate and
apart from other funds held by it.The moneys in the Delivery Cost Fund shall be used and withdrawn
by the Trustee to pay Delivery Costs upon submission of Written Requisitions of the District stating
the person to whom payment is to be made, the amount to be paid, the purpose for which the
obligation was incurred, that such payment is a proper charge against said fund and that payment for
such charge has not previously been made. On the six month anniversary of the initial delivery of the
Certificates, or upon the earlier Written Request of the District, all amounts remaining in the
Delivery Cost Fund shall be transferred by the Trustee for deposit in the Certificate Payment Fund.
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ARTICLE IV
PREPAYMENT OF CERTIFICATES
Section 4.1. Terms of Prepayment.
(a) The Certificates shall be subject to extraordinary prepayment prior to their
respective stated maturities, as a whole or in part on any date in the order of maturity as directed by
the District in a Written Request provided to the Trustee at least 45 days prior to such date and by lot
within each maturity 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, Section 6.10 of
this Agreement, and Sections 6.9 and 6.15 of the Installment Purchase Agreement, at a Prepayment
Price equal to the principal amount thereof plus accrued interest evidenced and represented thereby
to the date fixed for prepayment, without premium.
(b) The Certificates with stated maturities on or after November 15, 2017 shall
further be subject to prepayment prior to their respective stated maturities, as a whole or in part on
any date in the order of maturity as directed by the District in a Written Request provided to the
Trustee at least 60 days prior to such date and by lot within each maturity in integral multiples of
$5,000, on or after November 15, 2016, from amounts prepaid by the District pursuant to the
Installment Purchase Agreement at a Prepayment Price equal to the principal amount of such
Certificates to be prepaid plus accrued interest evidenced and represented thereby to the date fixed
for prepayment without premium.
Section 4.2. Selection of Certificates for Prepayment. Whenever less than all of the
Certificates are called for prepayment, the Trustee shall select the Certificates or portions thereof to
be prepaid from the Outstanding Certificates in accordance with Section 4.1 hereof. The Trustee shall
promptly notify the District in writing of the numbers of the Certificates or portions thereof so
selected for prepayment.
Section 4.3. Notice of Prepayment. Notice of prepayment shall 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 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 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 respective portions of the
principal amount thereof to be prepaid. Each such notice shall 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 shall cease to accrue, and shall require that such Certificates be then
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surrendered to the Trustee. Any defect in the notice or the 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.
Section 4.4. Partial Prepayment of Certificate. Upon surrender of any Certificate prepaid
in part only, the Trustee shall 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.
Section 4.5. 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 shall, 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 shall cease to
accrue, said Certificates (or portions thereof) shall cease to be entitled to any benefit or security
under this Agreement, and the Owners of said Certificates shall 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 Article shall be canceled upon
surrender thereof and destroyed by the Trustee.
ARTICLE V
INSTALLMENT PAYMENTS
Section 5.1. Pledge and Deposit of Installment Payments. The Installment Payments are
hereby irrevocably pledged to, and shall be used for, the punctual payment of the Certificates, and the
Installment Payments shall not be used for any other purpose while any of the Certificates remain
Outstanding. This pledge shall constitute a first and exclusive lien on the Installment Payments in
accordance with the terms hereof.
All Installment Payments to which the Corporation may at any time be entitled (including
income or profit from investments pursuant to Section 5.3) shall be paid directly to the Trustee
pursuant to the terms of the Assignment Agreement, and if received by the Corporation at any time
shall be deposited by the Corporation with the Trustee within one business day after the receipt
thereof, and the Trustee shall deposit all Installment Payments as and when received in the
Certificate Payment Fund. All moneys at any time deposited in the Certificate Payment Fund shall be
held by the Trustee in trust for the benefit of the Owners from time to time of the Certificates, but
shall nevertheless be disbursed, allocated and applied solely for the uses and purposes herein set
forth.
Section 5.2. Certificate Payment Fund. There is hereby established with the Trustee the
Certificate Payment Fund and 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
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remain unpaid. All moneys on deposit in the Certificate Payment Fund (including income or profit
from investments) shall be retained therein except as expressly provided herein.
The Trustee shall transfer from the Certificate Payment Fund the following amounts at the
times and in the manner hereinafter provided, and shall deposit such amounts in one or more of the
following respective funds, each of which the Trustee shall establish and maintain and hold in trust
separate and apart from other funds held by it, and each of which shall be disbursed and applied only
as hereinafter authorized. Such amounts shall be so transferred to and deposited in the following
respective 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 before May 15, 2007), shall deposit in the
Interest Fund an amount representing the portion of the Installment Payments designated as interest
coming due on the next succeeding May 15 or November 15, as the case may be. No deposit need be
made into the Interest Fund so long as there shall be in such fund moneys sufficient to pay the
interest portion of Certificates then Outstanding due, if any, on the next May 15 or November 15, as
the case may be.
Except as hereinafter provided, moneys in the Interest Fund shall 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 this Agreement).
(b) Principal Fund. The Trustee, on the last business day before each
November 15 (commencing on the last business day before November 15, 2007, shall deposit in the
Principal Fund an amount equal to the principal coming due with respect to the Certificates on the
next succeeding November 15. No deposit need be made into the Principal Fund so long as there
shall be in such fund moneys sufficient to pay the portion of all Certificates then Outstanding
designated as principal and coming due on the next succeeding November 15.
Except as hereinafter provided, moneys in the Principal Fund shall be used and
withdrawn by the Trustee solely for the purpose of paying the principal with respect to the
Certificates when due and payable.
(c) Prepayment Fund. Moneys to be used for prepayment pursuant to Section 4.1
hereof and paid by the District pursuant to Section 7.1 of the Installment Purchase Agreement shall
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 Section 7.2 of the Installment Purchase Agreement. Said moneys shall be set aside in the
Prepayment Fund solely for the purpose of prepaying the Certificates in advance of their respective
stated maturities and shall be applied on or after the date specified for prepayment pursuant to
Section 4.1 hereof to the payment of the Prepayment Price with respect to the Certificates to be
prepaid upon presentation and surrender of such Certificates.
Section 5.3. Investment of Moneys in Special Funds. Any moneys in the Delivery Cost
Fund, the Certificate Payment Fund, the Interest Fund, the Principal Fund, the Reserve Fund and the
Prepayment Fund shall be invested by the Trustee in accordance with the written instructions of the
District in Permitted Investments which will mature on or before the dates when such moneys are
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scheduled to be needed for payment from such fund. Securities acquired as an investment of moneys
in a fund shall be credited to such fund.
In the absence of written investment direction from the District, the Trustee shall invest
moneys held by it solely in Permitted Investments specified in clause (5) of subsection (b) the
definition thereof. Except as otherwise expressly provided herein, investments shall be valued by the
Trustee as frequently as reasonably deemed necessary by the Bond Insurer, but not less often than
annually, at the market value thereof, exclusive of accrued interest. Deficiencies in the amount on
deposit in any fund or account resulting from a decline in market value shall be restored no later than
the succeeding annual valuation date. The Trustee shall also value investments hereunder in
connection with the refunding or prepayment of the Certificates as directed in a Written Request of
the District.
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 hereunder.
Subject to the further provisions of Section 6.3 hereof, the Trustee may sell or present for
prepayment any obligations so purchased at the direction of the District whenever it shall be
necessary in order to provide moneys to meet any payment, and the Trustee shall 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 shall be entitled to its
customary fee therefor. The Trustee may commingle any of the funds or accounts established
pursuant to this Agreement into a separate fund or funds for investment purposes only; provided,
however, that all funds or accounts held by the Trustee hereunder shall be accounted for separately
notwithstanding such commingling.
The District and the Corporation acknowledge that to the extent regulations of the
Comptroller of the Currency or other applicable regulatory entity grant the District or the
Corporation the right to receive brokerage confirmations of security transaction as they occur, the
District and the Corporation will not receive such confirmations to the extent permitted by law. The
Trustee will furnish the District and the Corporation (to the extent requested by it) periodic cash
transaction statements which include detail for all investment transactions made by the Trustee
hereunder. The Trustee may make any investments hereunder through its own bond or investment
department or trust investment department, or those of its parent or an affiliate. The Trustee or any
of its affiliates may act as sponsor, advisor or manager in connection with any investments made by
the Trustee hereunder.
Section 5.4. Reserve Fund. The Trustee shall deposit in the Reserve Fund the amounts
required to be deposited therein pursuant to the Installment Purchase Agreement and this Agreement
and apply moneys in the Reserve Fund in accordance with this Section.
If one business day prior to any Payment Date the moneys in the Certificate Payment Fund
are insufficient to make the payments required by this Agreement with respect to Certificates on such
Payment Date, the Trustee shall 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 this Section, upon receipt of the moneys
from the District to increase the balance in the Reserve Fund to the Reserve Requirement, the Trustee
shall deposit such moneys in the Reserve Fund.
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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 shall semiannually on or before the fifth Business Day prior to each Payment
Date withdraw the amount of such excess from the Reserve Fund and shall deposit such amount in
the Interest Fund, and for this determination the Trustee shall make a valuation of the Reserve Fund
as often as it may deem appropriate, and in any event on or before the fifth Business Day prior to
each Payment Date in each year. In addition, the Trustee shall, on the date all or any portion of the
Certificates are discharged in accordance with Section 10.2 hereof, value the Reserve Fund in
accordance with this Section 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 shall 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 shall be valued at the lower of cost (inclusive of all interest accrued but
not paid), or book value.
The District may substitute any other policy of insurance, letter of credit or surety bond for
the moneys on deposit in the Reserve Fund in order to meet the Reserve Requirement provided that
the following requirements are met:
[TO COME FROM INSURER]
Section 5.5. 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 hereby irrevocably pledged to the Owners of the Certificates as provided
herein. This pledge shall constitute a first and exclusive lien on the Delivery Cost Fund, the
Certificate Payment Fund, the Interest Fund, the Principal Fund, the Prepayment Fund and the
Reserve Fund for the benefit of the Owners of the Certificates in accordance with the terms hereof
and of the Installment Purchase Agreement.
Section 5.6. Rebate Fund.
(a) Establishment. The Trustee shall establish a separate account for the
Certificates designated the "Rebate Fund." Absent an opinion of Special Counsel that the exclusion
from gross income for federal income tax purposes of interest with respect to the Certificates will not
be adversely affected, the District shall cause to be deposited in the Rebate Fund such amounts as are
required to be deposited therein pursuant to this Section and the Tax Certificate. All money at any
time deposited in the Rebate Fund shall be held by the Trustee in trust for payment to the United
States Treasury. All amounts on deposit in the Rebate Fund for the Certificates shall be governed by
this Section and the Tax Certificate for the Certificates, unless and to the extent that the District
delivers to the Trustee an opinion of Special Counsel that the exclusion from gross income for
federal income tax purposes of interest with respect to the Certificates will not be adversely affected
if such requirements are not satisfied. The Trustee shall be deemed conclusively to have complied
with the provisions of this Section and the Tax Certificate if the Trustee follows the directions of the
District and the Trustee shall have no independent responsibility to or liability resulting from failure
of the Trustee to enforce compliance by the District with the Tax Certificate or the provisions of this
Section.
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(i) Annual Computation. Within 55 days of the end of each Certificate
Year (as such term is defined in the Tax Certificate) commencing five years after Closing, the
District shall calculate or cause to be calculated the amount of rebatable arbitrage, in accordance with
Section 148(f)(2) of the Code and Section 1.148-3 of the Treasury Regulations (taking into account
any applicable exceptions with respect to the computation of the rebatable arbitrage, described, if
applicable, in the Tax Certificate (e.g., the temporary investments exceptions of Section 148(f)(4)(B)
and the construction expenditures exception of Section 148(f)(4)(C) of the Code), and taking into
account whether the election pursuant to Section 148(f)(4)(C)(vii) of the Code (the "11/2% Penalty")
has been made), for this purpose treating the last day of the applicable Certificate Year as a
computation date, within the meaning of Section 1.148-1(b) of the Treasury Regulations (the
"Rebatable Arbitrage"). The District shall obtain expert advice as to the amount of the Rebatable
Arbitrage to comply with this Section.
(ii) Annual Transfer. Within 55 days of the end of each Certificate Year
commencing five years after Closing, upon the written Request of the District, an amount shall be
deposited to the Rebate Fund by the Trustee from any Revenues legally available for such purpose
(as specified by the District in the aforesaid written Request), if and to the extent required so that the
balance in the Rebate Fund shall equal the amount of Rebatable Arbitrage so calculated in
accordance with (i) of this Subsection (a). In the event that immediately following the transfer
required by the previous sentence, the amount then on deposit to the credit of the Rebate Fund
exceeds the amount required to be on deposit therein, upon written Request of the District, the
Trustee shall withdraw the excess from the Rebate Fund and then credit the excess to the Revenue
Fund.
(iii) Payment to the Treasury. The Trustee shall pay, as directed by
Request of the District, to the United States Treasury, out of amounts in the Rebate Account,
(A) Not later than 60 days after the end of(X) the fifth Certificate
Year, and(Y)each applicable fifth Certificate Year thereafter, an amount equal to at least 90% of the
Rebatable Arbitrage calculated as of the end of such Certificate Year; and
(B) Not later than 60 days after the payment of all the Certificates,
an amount equal to 100% of the Rebatable Arbitrage calculated as of the end of such applicable
Certificate Year, and any income attributable to the Rebatable Arbitrage, computed in accordance
with Section 148(f)of the Code and Section 1.148-3 of the Treasury Regulations.
In the event that, prior to the time of any payment required to be made
from the Rebate Fund, the amount in the Rebate Fund is not sufficient to make such payment when
such payment is due, the District shall calculate or cause to be calculated the amount of such
deficiency and deposit an amount received from any legally available source equal to such deficiency
prior to the time such payment is due. Each payment required to be made pursuant to this Subsection
(a) shall be made to the Internal Revenue Service Center, Ogden, Utah 84201 on or before the date
on which such payment is due, and shall be accompanied by Internal Revenue Service Form 8038-T,
or shall be made in such other manner as provided under the Code.
(b) Disposition of Unexpended Funds. Any funds remaining in the Rebate Fund
after redemption and payment of the Certificates and the payments described in Subsection (a) above
being made may be withdrawn by the District and utilized in any manner by the District.
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(c) Survival of Defeasance. Notwithstanding anything in this Section to the
contrary, the obligation to comply with the requirements of this Section shall survive the defeasance
or payment in full of the Certificates.
Section 5.7. Payments Under the Bond Insurance Policy. [TO COME FROM INSURER]
ARTICLE VI
COVENANTS
Section 6.1. Comoration and District to Perform Under Installment Purchase Agreement.
The Corporation and District covenant and agree with the Owners of the Certificates to perform all
obligations and duties imposed on them under the Installment Purchase Agreement and, together
with the Trustee, to enforce such Installment Purchase 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.
Section 6.2. Budgets. On or prior to the first day of April of each Fiscal Year, the District
shall 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.
Section 6.3. Tax Covenants. Notwithstanding any other provision of this 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 and the
Corporation covenants to 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 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) Arbitrage. 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
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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 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 Corporation 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) Hedge Bonds. The District and the Corporation will make no use of the
proceeds of the Certificates or any other amounts or property, regardless of the source, or take any
action or refrain from taking any action that would cause the Certificates to be considered "hedge
bonds" within the meaning of Section 149(g) of the Code unless the District takes all necessary
action to assure compliance with the requirements of Section 149(g) of the Code to maintain the
exclusion from gross income of interest on the Certificates for federal income tax purposes.
(f) Miscellaneous. The District and the Corporation will take no action, or omit
to take any action, inconsistent with the 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 herein.
This Section and the covenants set forth herein shall not be applicable to, and nothing
contained herein shall be deemed to prevent the District and the Corporation from executing and
delivering, Certificates the interest with respect to which has been determined by Special Counsel to
be subject to federal income taxation.
Section 6.4. Accounting Records and Reports. The Trustee shall keep or cause to be kept
proper books of record and account in which complete and correct entries shall be made of all
transactions made by it relating to the receipts, disbursements, allocation and application of the
Installment Payments, and such books shall 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 shall furnish to the District a statement covering receipts, disbursements, allocation and
application of amounts on deposit in the funds and accounts created hereunder held by it.
Section 6.5. Compliance with Trust Agreement. The Trustee will not execute, or permit
to be executed, any Certificates in any manner other than in accordance with the provisions of this
Agreement, and the District will not suffer or permit any default by it to occur under this Agreement,
but will faithfully observe and perform all the covenants, conditions and requirements hereof.
Section 6.6. Observance of Laws and Regulations. To the extent necessary to assure their
performance hereunder, the Corporation and the District will well and truly keep, observe and
perform all valid and lawful obligations or regulations now or hereafter 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 now owned or hereafter acquired by the Corporation or the
District, respectively, including its right to exist and carry on its business, to the end that such
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contracts, rights and franchises shall be maintained and preserved, and shall not become abandoned,
forfeited or in any manner impaired.
Section 6.7. Compliance with Contracts. The District shall 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.
Section 6.8. Prosecution and Defense of Suits. The District shall 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 Water System or any part
thereof, whether now existing or hereafter developing, shall prosecute all such suits, actions and
other proceedings as may be appropriate for such purpose and shall 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 shall defend against every suit, action or proceeding at any time brought against
the Trustee (including all of its employees, officers and directors) or the Corporation upon any claim
arising out of the receipt, application or disbursement of any of the Installment Payments or
involving the rights of the Trustee or the Corporation under this Agreement; provided that the
Trustee or the Corporation at such party's election may appear in and defend any such suit, action or
proceeding. The District shall indemnify and hold harmless the Trustee or the Corporation against
any and all liability claimed or asserted by any person, arising out of such receipt, application or
disbursement, and shall indemnify and hold harmless the Trustee against any attorneys' fees or other
expenses which the Trustee may incur in connection with any litigation (including pre-litigation
activities) to which it may become a party by reason of serving as Trustee under this Agreement;
provided that such indemnification shall not be required in the event that the liability claimed or
asserted is a result of the gross negligence or willful misconduct of the Trustee. The District shall
promptly reimburse the Corporation or Trustee in the full amount of any attorneys' fees or other
expenses which the Corporation or the Trustee may incur in litigation or otherwise in order to
enforce such party's rights under this Agreement or the Certificates, provided that such litigation
shall be concluded favorably to such party's contentions therein.
Section 6.9. Recordation and Filing. The Trustee, upon written direction of the District,
shall 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 this 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, shall (subject to Section 8.5) do whatever else may be necessary or be
reasonably required in order to perfect and continue the lien of this Agreement and the Assignment
Agreement.
Notwithstanding anything to the contrary above, the Trustee shall 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
this Agreement; it being expressly understood and agreed that the Trustee's duties under this Section
shall be exclusively limited to following the express written filing or recording instructions of the
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District, from time to time with respect to the above described actions so long as the District shall
supply said recording or filing instruments.
Section 6.10. Eminent Domain. If all or any part of the Project shall be taken by eminent
domain proceedings (or sold to a person or entity threatening to exercise the power of eminent
domain), the Net Proceeds therefrom shall be applied in the manner specified in Section 6.15 of the
Installment Purchase Agreement.
Section 6.11. Further Assurances. Whenever and so often as requested so to do by the
Trustee or any Certificate Owner, the Corporation and the District will promptly execute and deliver
or cause to be executed and delivered all such other and further instruments, documents or
assurances, and promptly do or cause to be done all such other and further things, as may be
necessary or reasonably required in order to 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 this Agreement.
ARTICLE VII
DEFAULT AND LIMITATION OF LIABILITY
Section 7.1. 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 shall, 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, the Corporation and the Bond Insurer.
Section 7.2. Action on Default or Termination. Upon the occurrence of an Event of
Default (as that term is defined in the Installment Purchase Agreement), which event shall constitute
a default hereunder, and in each and every such case during the continuance of such Event of
Default, the Trustee or the Owners of not less than a majority in aggregate principal amount of
Certificates at the time Outstanding shall be entitled, with the written consent of the Bond Insurer so
long as the Bond Insurance Policy is in full force and effect, upon notice in writing 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 Section 8.1 of the Installment Purchase Agreement, the
Trustee shall apply (i) all moneys received as Installment Payments and all moneys held in any fund
or account hereunder and (ii) if directed in writing by the Bond Insurer, all amounts made available
to the Trustee by the Bond Insurer, to the payment of the entire principal amount of the Certificates
and the accrued interest with respect thereto, with interest on the overdue Certificates at the rate or
rates of interest or yields-to-maturity applicable to the Certificates if paid in accordance with their
terms. In the event that the Bond Insurer has paid to the Trustee amounts sufficient to pay the
principal of and interest due to Certificate owners upon such acceleration, the Bond Insurer's
obligations under the Bond Insurance Policy shall be discharged.
Section 7.3. Other Remedies of the Trustee. The Trustee shall at the written direction of
the Bond Insurer so long as the Bond Insurance Policy is in full force and effect, and without the
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written direction of the Bond Insurer in the event that the Bond Insurance Policy is no longer in full
force and effect, --
(a) 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
herein;
(b) by suit in equity to enjoin any acts or things which are unlawful or violate the
rights of the Trustee; or
(c) by suit in equity upon the happening of any default hereunder to require the
District and its directors, officers and employees to account as the trustee of an express trust.
Section 7.4. Non-Waiver. A waiver of any default or breach of duty or contract by the
Trustee shall 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 shall
impair any such right or remedy or shall 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 this article may be enforced and exercised from time to time and as often as shall be
deemed expedient by the Trustee.
If any action, proceeding or suit to enforce any right or to exercise any remedy is abandoned
or discontinued, the Trustee and the District shall be restored to their former positions, rights and
remedies as if such action,proceeding or suit had not been brought or taken.
Section 7.5. Remedies Not Exclusive. No remedy herein conferred upon or reserved to
the Trustee is intended to be exclusive of any other remedy, and each such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now or hereafter
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.
Section 7.6. No Obligation by the District to Owners. 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 herein, the District shall have no obligation or liability to the Owners of the
Certificates with respect to this 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 Section shall affect the rights, duties or obligations of the Trustee expressly
set forth herein.
Section 7.7. Trustee Appointed Agent for Certificate-owners: Direction of Proceedings.
The Trustee is hereby appointed the agent and attorney of the Owners of all Certificates outstanding
hereunder for the purpose of filing any claims relating to the Certificates. The Owners of a majority
in aggregate principal amount of the Certificates Outstanding hereunder shall, 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
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remedial proceedings by the Trustee, provided such direction shall be in accordance with law and the
provisions of this Trust Agreement and that the Trustee shall 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.
Section 7.8. Power of Trustee to Control Proceedings. In the event that the Trustee, upon
the happening of an Event of Default, shall have taken any action, by judicial proceedings or
otherwise, pursuant to its duties hereunder, whether upon its own discretion or upon the request of
the Owners of a majority in aggregate principal amount of the Certificates then outstanding pursuant
to Section 7.7 hereof, it shall 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 Trustee shall
not, unless there no longer continues an Event of Default hereunder, 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 hereunder opposing such discontinuance, withdrawal,
compromise, settlement or other disposal of such litigation.
Section 7.9. Limitation on Certificate-Owners' Right to Sue. No Owner of any Certificate
executed and delivered hereunder shall have the right to institute any suit, action or proceeding at law
or in equity, for any remedy under or upon this Agreement, unless (a) such Owner shall have
previously given to the Trustee written notice of the occurrence of an Event of Default hereunder;
(b) the Owners of at least a majority in aggregate principal amount of all the Certificates then
Outstanding shall have made written request upon the Trustee to exercise the powers hereinbefore
granted or to institute such action, suit or proceeding in its own name; (c) said Owners shall have
tendered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request; and (d) the Trustee shall have refused or omitted to comply with
such request for a period of sixty (60) days after such written request shall have been received by,
and said tender of indemnity shall have been made to, the Trustee.
Such notification, request, tender or indemnity and refusal or omission are hereby declared,
in every case, to be conditions precedent to the exercise by any Owner of Certificates of any remedy
hereunder; it being understood and intended that no one or more Owners of Certificates shall have
any right in any manner whatever by his or their action to enforce any right under this Agreement,
except in the manner herein provided, and that all proceedings at law or in equity to enforce any
provision of this Agreement shall be instituted, had and maintained in the manner herein 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 herein provided, 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, shall not be impaired or affected without the consent of
such Owner, notwithstanding the foregoing provisions of this Section or Section 7.10 or any other
provision of this Agreement.
Section 7.10. No Obligation with Respect to Performance by Trustee. Neither the District
nor the Corporation shall have any obligation or liability to any of the other parties hereto or to the
Owners of the Certificates with respect to the performance by the Trustee of any duty imposed upon
it under this Agreement.
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Section 7.11. No Liability to Owners for Payment. The Corporation shall 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 herein. Except as provided in this
Agreement, the Trustee shall 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 herein.
Section 7.12. No Responsibility for Sufficiency. The Trustee shall not be responsible for
the sufficiency of this 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 shall 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 this Agreement.
Section 7.13. Indemnification of Trustee. The District shall 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 hereunder 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 arising under this Agreement. Such
indemnity shall survive payment of the Certificates and discharge of this Agreement or resignation or
removal of the Trustee.
ARTICLE VIII
THE TRUSTEE
Section 8.1. Employment of Trustee. In consideration of the recitals hereinabove set forth
and for other valuable consideration, the District hereby agrees to employ the Trustee to receive,
hold, invest and disburse the moneys received pursuant to the Installment Purchase Agreement for
credit to the various funds and accounts established by this Agreement; to execute, deliver and
transfer the Certificates; and to apply and disburse the Installment Payments received from the
District to the Owners of Certificates; and to perform certain other functions; all as herein provided
and subject to the terms and conditions of this Agreement.
Section 8.2. Acceptance of Employment. In consideration of the compensation herein
provided for, the Trustee accepts the employment above referred to subject to the terms and
conditions of this Agreement.
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Section 8.3. Trustee: Duties, Removal and Resi n�. By executing and delivering this
Agreement, the Trustee accepts the duties and obligations of the Trustee provided in this Agreement,
but only upon the terms and conditions set forth in this 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 shall 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 this Section the combined capital and
surplus of such bank or trust company shall 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 the Bond
Insurer 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 shall 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 shall
become effective upon written acceptance of appointment by the successor Trustee and upon written
approval of the Bond Insurer.
Section 8.4. Compensation of the Trustee. The District shall from time to time, subject to
any agreement in effect with the Trustee, pay to the Trustee reasonable compensation for its services
and shall reimburse the Trustee (including all of its employees, officers and directors) for all its
advances and expenditures, including but not limited to advances to and fees and expenses of
independent appraisers, accountants, consultants, counsel, agents and attorneys-at-law or other
experts employed by it in the exercise and performance of its powers and duties hereunder. Such
compensation and reimbursement shall be paid by the District; provided, however, that the Trustee
shall not otherwise have any claims, except in accordance with Section 7.13 hereof and Section 8.2
of the Installment Purchase Agreement, or lien for payment of compensation for its services against
any other moneys held by it in the funds or accounts established hereunder but may take whatever
legal actions are lawfully available to it directly against the District. The obligations of the District
under this Section shall survive resignation or removal of the Trustee and payment of the Certificates
and discharge of this Agreement.
Section 8.5. Protection of the Trustee. The Trustee shall be protected and shall 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 shall 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 this
Agreement, and the Trustee shall 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
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same as conclusive evidence of the truth and accuracy of such statements. The Trustee shall 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 shall be deposited with the Trustee or satisfactory evidence
of the ownership of such Certificate shall 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 shall be full and complete authorization and protection in respect of any
action taken or suffered by it hereunder in good faith in accordance therewith.
Whenever in the administration of its duties under this Agreement, the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or suffering any action
hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed)
shall be deemed to be conclusively proved and established by a certificate of the Corporation or the
District and such certificate shall be full warranty to the Trustee for any action taken or suffered
under the provisions of this Agreement upon the faith thereof, but in its discretion the Trustee may
(but shall have no duty), in lieu thereof, accept other evidence of such matter or may require such
additional evidence as to it may seem reasonable.
The Trustee may buy, sell, own, hold and deal in any of the Certificates provided pursuant to
this 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 this 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, 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
hereunder.
The Trustee may, to the extent reasonably necessary, execute any of the trusts or powers
hereof and perform the duties required of it hereunder by or through attorneys, agents, or receivers,
and shall be entitled to advice of counsel concerning all matters of trust and its duties hereunder, and
the Trustee shall not be answerable for the default or misconduct of any such attorney, agent or
receiver selected by it with reasonable care. The Trustee shall not be answerable for the exercise of
any discretion or power under this Agreement or in the performance of its duties hereunder or for
anything whatever in connection with the funds and accounts established hereunder, except only for
its own willful misconduct or negligence.
The recitals, statements and representations by the District or the Corporation contained in
this Agreement or in the Certificates shall 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 shall not have,
any responsibility or obligations for the correctness of any thereof.
The Trustee undertakes to perform such duties, and only such duties as are specifically set
forth in this Agreement and no implied duties or obligations shall be read into this Agreement against
the Trustee.
No provision in this Agreement shall require the Trustee to risk or expend its own funds or
otherwise incur any financial liability in the performance of any of its duties hereunder if it shall have
reasonable grounds for believing that repayment of such funds or adequate indemnity against such
risk or liability is not assured to it.
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In accepting the trust hereby created, 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 this Agreement shall look only
to the funds and accounts held by the Trustee hereunder for payment except as otherwise provided
herein. Under no circumstances shall 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. In no event shall the Trustee be liable for incidental,
indirect, special or consequential damages in connection with or arising from the Installment
Purchase Agreement or this Agreement for the existence, furnishing or use of the Project.
The Trustee shall not be deemed to have knowledge of any Event of Default hereunder or
under the Installment Purchase Agreement unless and until it shall have actual knowledge thereof or
have received notice thereof at its corporate trust office at the address set forth in Section 11.11
hereof. The Trustee shall, 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/her own affairs.
The Trustee shall 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 this Agreement.
The Trustee shall be under no obligation to exercise any of the rights or powers vested in the
Trustee by this Agreement at the request, order or direction of any of the Owners or Bond Insurer
pursuant to the provisions of this Agreement unless such Owners or Bond Insurer shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby.
Notwithstanding any other provision of this Agreement, in determining whether the rights of
the Owners or Bond Insurer will be adversely affected by any action taken pursuant to the terms and
provisions of this Agreement, the Trustee shall consider the effect on the Owners or Bond Insurer as
if there were no Bond Insurance Policy.
Section 8.6. 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 shall 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 Section 8.3 hereof), shall be the successor to the Trustee without the execution or
filing of any paper or further act, anything herein to the contrary notwithstanding.
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ARTICLE IX
AMENDMENT OF TRUST AGREEMENT
Section 9.1. Amendments Permitted.
(a) This 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 hereto which shall 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 Section 11.4 hereof, shall have been filed, together with the written
consent of the Bond Insurer so long as the Bond Insurance Policy is in full force and effect, provided,
however, that no such modification or amendment shall (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 this
Agreement, or (3)modify any of the rights or obligations of the Trustee or the Corporation without
its written consent thereto.
(b) This 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 hereto which shall become binding upon adoption, without the consent of the Owners of
any Certificates but with the written consent of the Bond Insurer so long as the Bond Insurance
Policy is in full force and effect, 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 this Agreement other covenants and agreements thereafter to be observed or to
surrender any right or power herein reserved to or conferred upon the Corporation or the District, and
which shall not adversely affect the interests of the Owners of the Certificates;
(ii) to cure, correct or supplement any ambiguous or defective provision
contained in this Agreement or in regard to questions arising under this Agreement, as the
Corporation or the District may deem necessary or desirable and which shall not adversely affect the
interests of the Owners of the Certificates; and
(iii) to make such other amendments or modifications as may be in the
best interests of the Owners of the Certificates.
The Bond Insurer shall be provided by the District with a full original transcript of all
proceedings relating to the amendment of or supplement to this Agreement pursuant to this
Section 9.1.
The Trustee shall promptly upon execution and delivery of any amendment pursuant to
clause (b) above send by first class mail a copy of such amendment to the Bond Insurer.
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Section 9.2. Endorsement or Replacement of Certificates After Amendment or
Supplement. After the effective date of any action taken as hereinabove provided, 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 shall be made on such Certificate. If
the Trustee shall so determine, new Certificates so modified as in the opinion of the Trustee shall be
necessary to conform to such action shall be prepared, and in that case upon demand of the Trustee to
the Owner of any Outstanding Certificates such new Certificates shall be exchanged at the principal
corporate trust office of the Trustee without cost to each Owner for Certificates then Outstanding
upon surrender of such Outstanding Certificates.
Section 9.3. Amendment of Particular Certificates. The provisions of this article shall not
prevent any Owner from accepting any amendments to the particular Certificates held by him,
provided that due notation thereof is made on such Certificates.
ARTICLE X
DEFEASANCE
Section 10.1. Discharge of Trust Agreement. When the obligations of the District under the
Installment Purchase Agreement shall cease pursuant to Article IX of 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 provided in
Section 5.6 herein), then and in that case the obligations created by this Agreement shall thereupon
cease, terminate and become void except for the obligation of the District to direct the Trustee to
apply money on deposit in the Rebate Fund as provided herein which shall continue until such
moneys are so applied and the right of the Owners to have applied and the obligation of the Trustee
to apply such moneys and Permitted Investments to the payment of the Certificates as herein set
forth, and subject to application of moneys on deposit in the Rebate Fund as provided in Section 5.6,
the Trustee shall turn over to the District, after provision for payment of amounts due the Trustee and
the Bond Insurer hereunder, as an overpayment of Installment Payments, any surplus in the
Certificate Payment Fund and all balances remaining in any other funds or accounts other than
moneys and Permitted Investments held for the payment of the Certificates at maturity or on
prepayment, which moneys and Permitted Investments shall continue to be held by the Trustee in
trust for the benefit of the Owners and shall 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,
this Agreement shall become void.
If moneys or securities described in clause (a) of the definition of Permitted Investments are
deposited with and held by the Trustee as hereinabove provided, the Trustee shall within thirty (30)
days after such moneys or Permitted Investments shall have been deposited with it, mail a notice,
first class postage prepaid, to the Owners at the addresses listed on the registration books kept by the
Trustee pursuant to Section 2.8, setting forth (a) the date fixed for prepayment of the Certificates,
(b) a description of the moneys or securities described in clause (a) of the definition of Permitted
Investments so held by it, and (c) that this Agreement has been released in accordance with the
provisions of this Section.
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Notwithstanding anything herein to the contrary, in the event that the principal and/or interest
with respect to the Certificates shall be paid by the Bond Insurer pursuant to the Bond Insurance
Policy, the Certificates shall remain Outstanding for all purposes, not be defeased or otherwise
satisfied and not be considered paid by the District, and the pledge of the Installment Payments in
Section 5.1 hereof and all covenants, agreements and other obligations of the District to the Owners
in this Agreement shall continue to exist and shall run to the benefit of the Bond Insurer, and the
Bond Insurer shall be subrogated to the rights of such Owners.
Notwithstanding anything herein to the contrary, this Agreement shall not be discharged until
all amounts due to the Bond Insurer have been paid in full.
Section 10.2. Deposit of Money or Securities with Trustee. Whenever in this 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 this Agreement and shall be—
(a) lawful money of the United States of America in an amount equal to the
principal amount represented by 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 shall have been given as in Article IV provided or
provision satisfactory to the Trustee shall have been made for the giving of such notice, the amount
to be deposited or held shall 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 (a) 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, if any, provided that,
in the case of Certificates which are to be prepaid prior to the maturity thereof, notice of such
prepayment shall have been given as in Article IV provided or provision satisfactory to the Trustee
shall have been made for the giving of such notice;
provided, in each case, that the Trustee shall have been irrevocably instructed (by the terms of this
Agreement and the Installment Purchase Agreement or by Written Request of the District) to apply
such money or securities to the payment of such principal or Prepayment Price and interest
represented by such Certificates.
Section 10.3. Unclaimed Moneys. Anything contained herein to the contrary
notwithstanding, any moneys held by the Trustee in trust for the payment and discharge of the
interest, principal or Prepayment Price 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, shall 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 shall thereupon be released and discharged with
respect thereto and the Owners shall 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 shall, at the written request and
expense of the District, first mail a notice to the owners of the Certificates so payable that such
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moneys remain unclaimed and that after a date named in such notice, which date shall 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.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Benefits of Trust Agreement Limited to Parties. Nothing contained herein,
expressed or implied, is intended to give to any person other than the District, the Trustee, the
Corporation, the Bond Insurer and the Owners any claim, remedy or right under or pursuant hereto,
and any agreement, condition, covenant or term required herein to be observed or performed by or on
behalf of the District shall be for the sole and exclusive benefit of the Trustee, the Corporation, the
Bond Insurer and the Owners.
Section 11.2. 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
herein, such reference shall 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 hereby to be observed or performed by or on
behalf of the District, the Corporation or the Trustee or any officer thereof shall bind and inure to the
benefit of the respective successors thereof whether so expressed or not.
Section 11.3. Execution of Documents by Owners. Any declaration, request or other
instrument which is permitted or required herein 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 purports to act that the person signing such
declaration, request or other instrument or writing acknowledged to him 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 owning
the same may be proved by the books required to be kept by the Trustee pursuant to the provisions of
Section 2.8.
Any declaration, request or other instrument in writing of the Owner of any Certificate shall
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.
Section 11.4. 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)
shall not be deemed Outstanding for the purpose of any consent or other action or any calculation of
Outstanding Certificates provided for in this Agreement, and shall not be entitled to consent to or
take any other action provided for in this Agreement.
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The Trustee may adopt appropriate regulations to require each Owner of Certificates, before
his consent provided for in this Agreement shall be deemed effective, to reveal if the Certificates as
to which such consent is given are disqualified as provided in this Section.
Section 11.5. Waiver of Personal Liability. No director, officer or employee of the District
or the Corporation shall 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 herein
shall relieve any director, officer or employee of the District or Corporation from the performance of
any official duty provided by any applicable provisions of law or by the Installment Purchase
Agreement or hereby.
Section 11.6. Acquisition of Certificates by the District, Destruction of Certificates. All
Certificates acquired by the District, whether by purchase or gift or otherwise shall be surrendered to
the Trustee for cancellation. Whenever in this Agreement provision is made for the cancellation by
the Trustee of any Certificates, the Trustee shall destroy such Certificates and upon written request
deliver a certificate of such destruction to the District.
Section 11.7. Issuance of Additional Certificates. In connection with the issuance of
additional Certificates under the Agreement, the District shall deliver to Bond Insurer a copy of the
disclosure document, if any, circulated with respect to such additional Certificates.
Section 11.8. Headings. Headings preceding the text of the several Articles and Sections
hereof, and the table of contents, are solely for convenience of reference and shall not constitute a
part of this Agreement or affect its meaning, construction or effect.
All references herein to "Articles," "Sections" and other subdivisions are to the
corresponding Articles, Sections or subdivisions of this Agreement; and the words "herein,"
"hereof," "hereunder" and other words of similar import refer to this Agreement as a whole and not
to any particular Article, Section or subdivision hereof.
Section 11.9. Funds and Accounts. Any fund required by this Agreement to be established
and maintained by the Trustee may be established and maintained in the accounting records of the
Trustee either as a fund or an account, and may, for the purposes of such records, any audits thereof
and any reports or statements with respect thereto, be treated either as a fund or as an account; but all
such records with respect to all such funds shall at all times be maintained in accordance with sound
industry practices and with due regard for the protection of the security of the Certificates and the
rights of every Owner thereof.
Section 11.10. Partial Invalidity. If any one or more of the agreements, conditions,
covenants or terms required herein to be observed or performed by or on the part of the District, the
Corporation or the Trustee shall be contrary to law, then such agreement or agreements, such
condition or conditions, such covenant or covenants or such term or terms shall be null and void and
shall be deemed separable from the remaining agreements, conditions, covenants and terms hereof
and shall in no way affect the validity hereof or of the Certificates, and the Owners shall retain all the
benefit, protection and security afforded to them under any applicable provisions of law. The
District, the Corporation and the Trustee hereby declare that they would have executed this
Agreement, and each and every other article, section, paragraph, subdivision, sentence, clause and
phrase hereof and would have authorized the execution and delivery of the Certificates pursuant
hereto irrespective of the fact that any one or more articles, sections, paragraphs, subdivisions,
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sentences, clauses or phrases hereof or the application thereof to any person or circumstances may be
held to be unconstitutional, unenforceable or invalid.
Section 11.11. California Law. THIS AGREEMENT SHALL BE CONSTRUED AND
GOVERNED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
Section 11.12. Notices. All written notices to be given under this Agreement to the parties
hereto shall be given by mail or personal delivery to the party entitled thereto at its address set forth
below, or at such address as the party may provide to the other parties in writing from time to time.
If to the District: P.O. Box 309
11570 Donner Pass Road
Truckee, CA 96160
Attention: General Manager
If to the Corporation: P.O. Box 309
11570 Donner Pass Road
Truckee, CA 96160
Attention: President
If to the Trustee: 700 South Flower Street, Suite 500
Los Angeles, CA 90017
Attention: Corporate Trust Department
If to the Bond Insurer: [
l
Attention:
Section 11.13. Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of which shall constitute but one and
the same instrument.
Section 11.14. Bond Insurer to be Deemed Owner: Rights of the Bond Insurer.
(a) Notwithstanding any provision of this Agreement to the contrary, the Bond
Insurer shall be deemed the sole Owner of the Outstanding Certificates for the purpose of exercising
any voting right or privilege or giving any consent or direction or taking any other action that the
Owners are entitled to take pursuant to Article V and Article VIII of this Agreement or the
Installment Purchase Agreement, and no amendment or supplement to the Agreement or the
Installment Purchase Agreement may become effective except upon obtaining the prior written
consent of the Bond Insurer; provided, however, that the rights of the Bond Insurer to direct or
consent to District, Trustee or Certificate Owner actions under the Installment Purchase Agreement
shall be suspended during any period in which the Bond Insurer is in default in its payment
obligations under the Bond Insurance Policy (except to the extent of amounts previously paid by the
Bond Insurer and due and owing to the Bond Insurer) and shall be of no force or effect in the event
the Bond Insurance Policy is no longer in effect or the Bond Insurer asserts that the Bond Insurance
Policy is not in effect or the Bond Insurer shall have provided written notice that it waives such
rights.
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(b) In the event that the principal or interest represented by a Certificate shall be
paid by the Bond Insurer pursuant to the terms of the Bond Insurance Policy, such principal and
interest shall not be deemed paid for purposes of the Agreement or the Installment Purchase
Agreement and shall continue to be due and owing until paid by the District in accordance with the
Installment Purchase Agreement and the Agreement, and such Certificate shall (to the extent of such
principal and interest)remain Outstanding under this Agreement.
(c) The Bond Insurer shall be included as a party in interest and as a party
entitled to (i) notify the District, the Trustee, if any, or any applicable receiver of the occurrence of an
event of default and(ii)request the Trustee or receiver to intervene in judicial proceedings that affect
the Certificates or the security therefor. The Trustee or receiver shall be required to accept notice of
an Event of Default from the Bond Insurer.
Section 11.15. Bond Insurer as Third-Party Beneficiary. The Bond Insurer is a third-party
beneficiary of this Agreement and the Installment Purchase Agreement and may enforce any right,
remedy or claim given, conferred or granted hereunder.
Section 11.16. Business Day. When any action is provided for herein to be done on a day
named or within a specified time period, and the day or the last day of the period falls on a day other
than a Business Day, such action may be performed on the next ensuing Business Day with the same
effect as though performed on the appointed day or within the specified period with no interest
accruing for the period after such nominal date.
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IN WITNESS WHEREOF, the parties have executed and attested this Agreement by their
officers hereunto duly authorized as of the date and year first written above.
THE BANK OF NEW YORK TRUST COMPANY,
N.A., as Trustee
By:
Authorized Officer
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
FINANCING CORPORATION
By:
President
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
By:
President
By:
Clerk of the Board
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EXHIBIT A
[FORM OF CERTIFICATE OF PARTICIPATION]
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
REFUNDING REVENUE CERTIFICATE OF PARTICIPATION
(WATER SYSTEM IMPROVEMENT PROJECTS),
SERIES 2006
Evidencing an Interest of the Owner Hereof
in Installment Payments to be Made by the
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
CERTIFICATE
INTEREST PAYMENT DATED
RATE: DATE DATE CUSIP
% November 15 , 2006 [ ]
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: DOLLARS
THIS IS TO CERTIFY that the Registered Owner (specified above) of this Certificate of
Participation (herein called the "Certificate") is the owner of an undivided interest in the right to
receive certain Installment Payments (as that term is defined in the Trust Agreement hereinafter
mentioned) under that certain Installment Purchase Agreement (the "Installment Purchase
Agreement"), dated as of September 1, 2006, by and between Truckee Donner Public Utility District
Financing Corporation (the "Corporation') and the Truckee Donner Public Utility District (the
"District"). The Installment Payments to be made thereunder have been assigned to The Bank of
New York Trust Company, N.A., as trustee (the "Trustee"), having a corporate trust office in Los
Angeles, California. The Trustee has executed and delivered $[ ] aggregate principal
amount of Certificates.
The Registered Owner of this Certificate is entitled to receive, subject to the terms of the
Installment Purchase Agreement and the Trust Agreement, dated as of September 1, 2006, by and
among the Trustee, the Corporation and the District (the "Trust Agreement") on the Certificate
Payment Date (specified above) the Principal Amount(specified above) representing a portion of the
Installment Payments designated as principal coming due on the Certificate Payment Date, and to
receive an interest component on such principal component at the interest rate per annum specified
above, from the Interest Payment Date(as hereinafter defined) preceding the date of execution hereof
by the Trustee, unless such date of execution is after a Record Date (as hereinafter defined) and on or
before the succeeding Interest Payment Date, in which case interest shall be payable from such
Interest Payment Date, or unless such date of execution is on or before the first Record Date, in
which case interest shall be payable from the Dated Date; provided, however, that if, as shown by the
records of the Trustee, interest represented by this Certificate is in default, Certificates executed in
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exchange for this Certificate surrendered for transfer or exchange shall represent interest from the
last date to which interest has been paid in full or duly provided for with respect to this Certificate,
or, if no interest has been paid or duly provided for with respect to this Certificate, from the'Dated
Date.
Interest with respect to this Certificate shall be paid on May 15 and November 15 in each
year, commencing May 15, 2007 (each, an"Interest Payment Date"), and continuing to and including
the Certificate Payment Date or the date of prior prepayment hereof, whichever is earlier. Interest
with respect to this Certificate shall be calculated on the basis of a 360-day year of twelve 30-day
months. The principal with respect hereto and prepayment premiums, if any, are payable in lawful
money of the United States of America upon presentation and surrender at 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 Registered Owners (the
"Principal Corporate Trust Office"). Interest with respect hereto is payable by check or draft of the
Trustee mailed by first class mail on each Interest Payment Date to the Registered Owner hereof as
of the close of business on the fifteenth day of the calendar month prior to such Interest Payment
Date (the "Record Dates") at the address shown on the books maintained by the Trustee or, upon the
written request received by the Trustee of an Owner of at least $1,000,000 in aggregate principal
amount of Certificates, by wire transfer of immediately available funds to an account in the United
States designated by such Owner prior to the applicable Record Date, except, in each case that, if and
to the extent that there is a default in the payment of the interest due on such Interest Payment Date,
such defaulted interest shall be paid to the owner in whose name this Certificate is registered at the
close of business on a special record date as determined by the Trustee.
This Certificate has been executed by the Trustee pursuant to the terms of the Trust
Agreement. Copies of the Trust Agreement and the Installment Purchase Agreement are on file at the
corporate trust office of the Trustee in Los Angeles, California, and reference is made to the Trust
Agreement and the Installment Purchase Agreement and any and all amendments thereto for a
description of the pledges and covenants securing the Certificates, the nature, extent and manner of
enforcement of such pledges, the rights and remedies of the registered owners of the Certificates with
respect thereto and the other terms and conditions upon which the Certificates are delivered
thereunder.
The Certificates are payable from Installment Payments payable by the District and other
amounts on deposit in certain funds and accounts held under the Trust Agreement, including but not
limited to the Reserve Fund and the Rate Stabilization Fund, all in accordance therewith. All
Revenues and all amounts on deposit in the Revenue Fund and the Rate Stabilization Fund (as such
terms are defined in the Installment Purchase Agreement) are irrevocably pledged to the payment of
the Installment Payments and the Revenues shall not be used for any other purpose while any of the
Installment Payments remain unpaid; provided that out of Revenues and amounts on deposit in the
Revenue Fund and the Rate Stabilization Fund there may be apportioned such sums for such
purposes as are expressly permitted in the Installment Purchase Agreement. This pledge, together
with all other Contracts and Bonds (as such terms are defined in the Installment Purchase
Agreement) constitutes a lien on Revenues, subject to application of Revenues and all amounts on
deposit in the Revenue Fund as permitted in the Installment Purchase Agreement, and the Revenue
Fund for the payment of the Installment Payments and all other Contracts and Bonds in accordance
with the terms of the Installment Purchase Agreement and of the Trust Agreement. The obligation of
the District to make Installment Payments is a special obligation of the District payable solely from
Net Revenues (as defined in the Installment Purchase Agreement) and other funds described in the
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Installment Purchase Agreement 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 limitation or restriction. The District may at any time execute any Contract, the installment
payments under which, or issue any Bonds (as such terms are defined in the Installment Purchase
Agreement), the payments of which are on a parity with the Installment Payments and which are
secured by a pledge of and lien on the Revenues in accordance with the Installment Purchase
Agreement.
The Certificates are authorized to be executed and delivered in the form of fully registered
Certificates in the denomination of $5,000 each or any integral multiple thereof, provided that no
Certificate shall have principal represented thereby maturing in more than one year. Subject to the
limitations and conditions and upon payment of the taxes and governmental charges provided in the
Trust Agreement, Certificates may be exchanged for a like aggregate principal amount of Certificates
of the same Certificate Payment Date of other authorized denominations at the Principal Corporate
Trust Office of the Trustee.
This Certificate is transferable by the Registered Owner hereof, in person or by such person's
duly authorized attorney, but only in the manner, subject to the limitations and conditions and upon
payment of the taxes and governmental charges provided in the Trust Agreement, and upon surrender
of this 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. Upon such transfer a new Certificate or Certificates of the same Certificate Payment Date
and of authorized denomination or denominations, for a like aggregate principal amount will be
delivered to the transferee in exchange herefor.
The Trustee may treat the Registered Owner hereof as the absolute owner hereof for all
purposes, and the Trustee shall not be affected by any notice to the contrary.
The Trustee shall not be required to register the transfer or exchange of any Certificate
(i) within 15 days preceding selection of Certificates for prepayment or(ii) selected for prepayment.
The Certificates are subject to prepayment prior to their respective stated maturities, as a
whole or in part on any date in the order of maturity as directed by the District in a written request to
the Trustee and by lot within each maturity in integral multiples of$5,000, from prepaid Installment
Payments made by the District from Net Proceeds (as defined in the Installment Purchase
Agreement), under the circumstances and upon the terms prescribed in the Trust Agreement and the
Installment Purchase Agreement, at a prepayment price equal to the principal amount thereof plus
accrued interest evidenced and represented thereby to the date fixed for prepayment, without
premium.
The Certificates with stated maturities on or after November 15, 2017, are subject to
prepayment prior to their respective stated maturities, as a whole or in part on any date in the order of
maturity as directed by the District in a written request to the Trustee and by lot within each maturity
in integral multiples of$5,000, on or after November 15, 2016 from amounts prepaid by the District
pursuant to the Installment Purchase Agreement, at a prepayment price equal to the principal amount
of such Certificates to be prepaid plus accrued interest evidenced and represented thereby to the date
fixed for prepayment without premium.
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As provided in the Trust Agreement, notice of prepayment hereof shalt be mailed, first class
postage prepaid, not less than 30 days nor more than 60 days prior to the prepayment date, to the
Registered Owner of this Certificate at the address thereof appearing on the Certificate registration
books. If this Certificate is called for prepayment and payment is duly provided therefor as specified
in the Trust Agreement, interest represented hereby shall cease to accrue from and after the date fixed
for prepayment. Any defect in the notice or the mailing thereof will not affect the validity of the
prepayment of this Certificate.
To the extent and in the manner permitted by the terms of the Trust Agreement and the
Installment Purchase Agreement, as the case may be, the Trust Agreement and the rights and
obligations of the District and of the registered owners of the Certificates and of the Trustee or the
Installment Purchase Agreement and the rights and obligations of the Corporation and the District
and the registered owners of the Certificates and the Trustee, respectively, may be modified or
amended with the written consents of the registered owners of a majority in aggregate principal
amount of the Certificates (as such terms is defined in the Trust Agreement) then outstanding and so
long as the Bond Insurance Policy is in full force and effect, with the written consent of the Bond
Insurer (as defined in the Trust Agreement), provided, however, that no such modification or
amendment shall (1)extend the stated maturities of the Certificates, or reduce the rate of interest or
yield-to-maturity 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 registered owner of each Certificate so affected, or (2)reduce the
percentage of registered owners of Certificates whose consent is required for the execution of any
amendment or modification of the Trust Agreement or the Installment Purchase Agreement, or
(3) modify any of the rights or obligations of the Trustee or the Corporation without its written
consent thereto.
To the extent and in the manner permitted by the terms of the Trust Agreement and the
Installment Purchase Agreement, as the case may be, the Trust Agreement and the rights and
obligations of the Corporation and the District and of the registered obligations of the Corporation
and the District and of the registered owners of the Certificates or the Installment Purchase
Agreement and the rights and obligations of the Corporation and the District also be modified or
amended, without the consent of the Owners of any Certificates but with the written consent of the
Bond Insurer so long as the Bond Insurance Policy is in full force and effect, but only to the extent
permitted by law and only for any one or more of the following purposes - -
(1) to add to the covenants and agreements of the Corporation or the District contained in
the Trust Agreement or the Installment Purchase Agreement other covenants and
agreements thereafter to be observed or to surrender any right or power in the Trust
Agreement or the Installment Purchase Agreement reserved to or conferred upon the
Corporation or the District, and which shall not adversely affect the interests of the
registered owners of the Certificates;
(2) to cure, correct or supplement any ambiguous or defective provision contained in the
Trust Agreement or the Installment Purchase Agreement or in regard to questions
arising under the Trust Agreement or the Installment Purchase Agreement, as the
Corporation or the District may deem necessary or desirable and which shall not
adversely affect the interests of the registered owners of the Certificates; and
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(3) to make such other amendments or modifications as may be in the best interests of
the registered owners of the Certificates.
Notwithstanding anything contained in the Trust Agreement, for certain purposes thereunder
and so long as the Bond Insurance Policy is in full force and effect, the Bond Insurer shall be deemed
to be the owner of all Certificates for purposes of exercising any voting right or privilege or giving
any consent or direction or taking certain other actions pursuant to the Trust Agreement.
Upon acceleration, the Installment Payments and the Certificates shall become due and
payable immediately from the sources described in the Installment Purchase Agreement and the Trust
Agreement, respectively.
The Trustee has no obligation or liability to the registered owners of the Certificates for the
payment of interest, principal or prepayment premium, if any, with respect to the Certificates out of
the Trustee's own funds; the Trustee's sole obligations are those described in the Trust Agreement.
The recitals of facts herein shall be taken as statements of the District and the Corporation and the
Trustee does not have any responsibility for the accuracy thereof.
The District has certified that all acts, conditions and things required by the Constitution and
statutes of the State of California and the Trust Agreement to exist, to have happened and to have
been performed precedent to and in the delivery of this Certificate, do exist, have happened and have
been performed in due time, form and manner as required by law.
IN WITNESS WHEREOF, this Certificate has been executed by the manual signature of an
authorized signatory of the Trustee, all as of the date set forth below.
Execution date: THE BANK OF NEW YORK TRUST
COMPANY, N.A., as Trustee
By
Authorized Signatory
A-5
DOCSSF/59525 v5/022925-0017
STATEMENT OF INSURANCE
[TO COME]
A-6
DOCSSF/59525v5/022925-0017
[FORM OF ASSIGNMENT]
ASSIGNMENT
For value received the undersigned do(es) hereby sell, assign and transfer unto
the within mentioned Certificate and
hereby irrevocably constitute(s) and appoint(s)
attorney, to transfer the same on the Certificate register of the Trustee with full power of substitution
in the premises.
Dated:
Note: The signature(s) to this Assignment
must correspond with the name(s) as written
on the face of the within Certificate in every
particular, without alteration or enlargement or
any change whatsoever.
Signature Guaranteed:
Note: Signature(s) must be guaranteed by an
eligible guarantor institution.
A-7
DOCSSF/59525v5/022925-0017
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION; CONTENTS OF CERTIFICATES AND
OPINIONS; RECITALS
Section1.1. Definitions..................................................................................................................l
Section 1.2. Rules of Construction.................................................................................................6
Section 1.3. Content of Statements and Opinions..........................................................................6
Section1.4. Recitals.......................................................................................................................7
ARTICLE II
CERTIFICATES; TERMS AND PROVISIONS
Section 2.1. Preparation of Certificates .........................................................................................7
Section 2.2. Denominations; Medium and Place of Payment; Dating...........................................7
Section 2.3. Payment of Principal and Interest with Respect to Certificates.................................8
Section 2.4. Form of Certificates...................................................................................................9
Section2.5. Execution...................................................................................................................9
Section 2.6. Transfer of Certificates..............................................................................................9
Section 2.7. Exchange of Certificates............................................................................................9
Section 2.8. Certificate Registration Books...................................................................................9
Section 2.9. Certificates Mutilated, Lost, Destroyed or Stolen....................................................10
Section2.10. Book-Entry System..................................................................................................10
ARTICLE III
DELIVERY OF CERTIFICATES; DELIVERY COST FUND
Section 3.1. Delivery of Certificates............................................................................................13
Section 3.2. Application of Proceeds of Certificates and Certain Other Moneys........................ 13
Section 3.3. Validity of Certificates.............................................................................................13
Section3.4. Delivery Cost Fund..................................................................................................13
ARTICLE IV
PREPAYMENT OF CERTIFICATES
Section 4.1. Terms of Prepayment............................................................................................... 14
Section 4.2. Selection of Certificates for Prepayment.................................................................14
Section 4.3. Notice of Prepayment...............................................................................................14
Section 4.4. Partial Prepayment of Certificate.............................................................................15
Section4.5. Effect of Prepayment...............................................................................................15
i
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(continued)
Page
ARTICLE V
INSTALLMENT PAYMENTS
Section 5.1. Pledge and Deposit of Installment Payments...........................................................15
Section 5.2. Certificate Payment Fund.........................................................................................15
Section 5.3. Investment of Moneys in Special Funds..................................................................16
Section5.4. Reserve Fund ...........................................................................................................17
Section 5.5. Pledge of Moneys in Funds......................................................................................18
Section5.6. Rebate Fund. ............................................................................................................18
Section 5.7. Payments Under the Bond Insurance Policy............................................................20
ARTICLE VI
COVENANTS
Section 6.1. Corporation and District to Perform Under Installment Purchase Agreement........20
Section6.2. Budgets ....................................................................................................................20
Section6.3. Tax Covenants .........................................................................................................20
Section 6.4. Accounting Records and Reports.............................................................................21
Section 6.5. Compliance with Trust Agreement..........................................................................21
Section 6.6. Observance of Laws and Regulations......................................................................21
Section 6.7. Compliance with Contracts......................................................................................22
Section 6.8. Prosecution and Defense of Suits.............................................................................22
Section 6.9. Recordation and Filing.............................................................................................22
Section6.10. Eminent Domain......................................................................................................23
Section 6.11. Further Assurances...................................................................................................23
ARTICLE VII
DEFAULT AND LIMITATION OF LIABILITY
Section 7.1. Notice of Non-Payment...........................................................................................23
Section 7.2. Action on Default or Termination............................................................................23
Section 7.3. Other Remedies of the Trustee.................................................................................23
Section7.4. Non-Waiver..............................................................................................................24
Section 7.5. Remedies Not Exclusive..........................................................................................24
Section 7.6. No Obligation by the District to Owners.................................................................24
Section 7.7. Trustee Appointed Agent for Certificate-owners: Direction of Proceedings..........24
Section 7.8. Power of Trustee to Control Proceedings................................................................25
Section 7.9. Limitation on Certificate-Owners' Right to Sue......................................................25
Section 7.10. No Obligation with Respect to Performance by Trustee.........................................25
Section 7.11. No Liability to Owners for Payment........................................................................26
Section 7.12. No Responsibility for Sufficiency............................................................................26
Section 7.13. Indemnification of Trustee.......................................................................................26
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TABLE OF CONTENTS
(continued)
Page
ARTICLE VIII
THE TRUSTEE
Section 8.1. Employment of Trustee............................................................................................26
Section 8.2. Acceptance of Employment.....................................................................................26
Section 8.3. Trustee: Duties, Removal and Resignation.............................................................27
Section 8.4. Compensation of the Trustee...................................................................................27
Section 8.5. Protection of the Trustee..........................................................................................27
Section 8.6. Merger or Consolidation..........................................................................................29
ARTICLE IX
AMENDMENT OF TRUST AGREEMENT
Section 9.1. Amendments Permitted............................................................................................30
Section 9.2. Endorsement or Replacement of Certificates After Amendment or
Supplement ..............................................................................................................31
Section 9.3. Amendment of Particular Certificates......................................................................31
ARTICLE X
DEFEASANCE
Section 10.1. Discharge of Trust Agreement.................................................................................31
Section 10.2. Deposit of Money or Securities with Trustee..........................................................32
Section10.3. Unclaimed Moneys..................................................................................................32
ARTICLE XI
MISCELLANEOUS
Section 11.1. Benefits of Trust Agreement Limited to Parties......................................................33
Section 11.2. Successor Deemed Included in all References to Predecessor................................33
Section 11.3. Execution of Documents by Owners .......................................................................33
Section 11.4. Disqualified Certificates ..........................................................................................33
Section 11.5. Waiver of Personal Liability....................................................................................34
Section 11.6. Acquisition of Certificates by the District; Destruction of Certificates...................34
Section 11.7. Issuance of Additional Certificates..........................................................................34
Section11.8. Headings ..................................................................................................................34
Section 11.9. Funds and Accounts.................................................................................................34
Section 11.10. Partial Invalidity.......................................................................................................34
Section11.11. California Law.........................................................................................................35
Section11.12. Notices.....................................................................................................................35
Section 11.13. Execution in Counterparts........................................................................................35
Section 11.14. Bond Insurer to be Deemed Owner: Rights of the Bond Insurer............................35
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(continued)
Page
Section 11.15. Bond Insurer as Third-Party Beneficiary.................................................................36
Sectionl l.16. Business Day.................................................................................................. ....36
EXHIBIT A FORM OF CURRENT INTEREST CERTIFICATE OF PARTICIPATION..........A-1
iv
DOCSSF/59525v5/022925-0017
Fulbright
Draft of 9/13/06
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
REFUNDING REVENUE CERTIFICATES OF PARTICIPATION
(WATER SYSTEM IMPROVEMENT PROJECTS) SERIES 2006
PURCHASE CONTRACT
October_, 2006
Board of Directors
Truckee Donner Public Utility District
Truckee, California
Ladies and Gentlemen:
The undersigned, Stone & Youngberg LLC (the "Underwriter"), hereby offers to enter
into this Purchase Contract (the "Purchase Contract") with you, the Truckee Donner Public
Utility District(the"District"), which upon the District's acceptance of this offer, will be binding
upon the District and the Underwriter. This offer is made subject to acceptance by you prior to
11:59 P.M., California time, on the date hereof. If this offer is not so accepted, this offer will be
subject to withdrawal by the Underwriter upon notice delivered to you at any time prior to
acceptance. Upon acceptance, this Purchase Contract shall be in full force and effect in
accordance with its terms and shall be binding upon the District and the Underwriter. All
capitalized terms used herein and not otherwise defined shall have the respective meanings
ascribed thereto in the Official Statement(as hereinafter defined).
1. Purchase, Sale and Delivery of the Certificates.
(a) Subject to the terms and conditions and in reliance upon the
representations, warranties and agreements set forth herein, the Underwriter hereby
agrees to purchase and the District agrees to cause the Trustee (as defined below) to
execute and deliver to the Underwriter all (but not less than all) of the $
aggregate principal amount of Truckee Donner Public Utility District Refunding Revenue
Certificates of Participation (Water System Improvement Projects) Series 2006 (the
"Certificates"). The Certificates are being delivered to provide funds to (i) prepay the
$8,465,000 outstanding principal amount of Truckee Donner Public Utility District
Refunding Certificates of Participation (Water System Improvement Projects) Series
1996 (the "Refunded Certificates"), (ii)to finance capital improvements to the District
Water System, (iii)to make a deposit to the Reserve Fund, and (iv)pay certain costs of
delivering the Certificates.
The Certificates will be executed and delivered under a Trust Agreement, dated as
of September 1, 2006 (the "Trust Agreement"), by and among The Bank of New York
Trust Company, N.A., as trustee (the "Trustee"), the District and Truckee Donner Public
45821644.4
Utility District Financing Corporation (the "Corporation"). The Corporation will assign
to the Trustee, for the benefit of the Owners, the right of the Corporation to receive and
collect the Installment Payments due from the District to the Corporation under the
Installment Purchase Agreement, dated as of September 1, 2006 (the "Installment
Purchase Agreement"), and other amounts payable by the District to the Corporation
pursuant to the Assignment Agreement, dated as of September 1, 2006, by and between
the Trustee and the Corporation (the "Assignment Agreement"). In connection with the
prepayment of the Refunded Certificates, the District will enter into an Escrow
Agreement, dated as of September 1, 2006 (the "Escrow Agreement"), by and between
the District and The Bank of New York Trust Company, N.A., as escrow agent (the
"Escrow Agent").
The Certificates shall be dated the date of delivery thereof. The Certificates shall
mature in the amounts and on the dates and will represent interest at the rates set forth in
Exhibit A hereto. The Certificates shall be substantially in the form described in, and
shall be issued and secured under, the provisions of the Trust Agreement. Payment of the
scheduled principal and interest evidenced by the Certificates when due (not including
acceleration or prepayment) will be guaranteed under a municipal bond insurance policy
(the "Policy") to be issued by (the "Insurer") simultaneously with the
delivery of the Certificates.
(b) The purchase price for the Certificates shall be $
(representing the $ aggregate principal amount of the Certificates, plus
$ original issue premium and less $ of Underwriter's discount).
(c) At 8:00 o'clock A.M., California time, on October _, 2006, or at such
other time or on such other date as the District and the Underwriter mutually agree upon
(the "Closing Date"), the Trustee will, subject to the terms and conditions hereof, deliver
or cause to be delivered to the Underwriter, at a location or locations to be designated by
the Underwriter, the Certificates (delivered through the book-entry system of The
Depository Trust Company, New York, New York), duly executed, and the parties will
deliver or cause to be delivered, at the offices of Stradling Yocca Carlson & Rauth, A
Professional Corporation, 44 Montgomery Street, Suite 4200, San Francisco, California
94104, or at such other place as shall have been mutually agreed upon by the District and
the Underwriter, the other documents mentioned herein. The Underwriter will accept
such delivery and pay the purchase price of the Certificates as set forth in subparagraph
(b) above in immediately available funds (such delivery and payment being herein
referred to as the "Closing") to the order of the Trustee in an amount equal to the
purchase price.
(d) The Underwriter agrees to make a bona fide public offering of the
Certificates at the initial offering prices set forth in the Official Statement, which prices
may be changed from time to time by the Underwriter after such offering.
(e) The District will undertake pursuant to a Continuing Disclosure
Certificate, to provide certain annual financial information and operating data and notices
of the occurrence of certain events, if material. A description of this undertaking is set
45821644.4 2
forth in Preliminary Official Statement (as hereinafter defined) and will also be set forth
in the final Official Statement(as hereinafter defined).
2. Use and Preparation of Preliminary Official Statement.
The District hereby ratifies, confirms and approves of the use and distribution by the
Underwriter prior to the date hereof of the Preliminary Official Statement, dated September _,
2006, relating to the Certificates (which, including the cover page and all appendices thereto, is
referred to herein as the "Preliminary Official Statement"). The District has deemed final the
Preliminary Official Statement as of its date for purposes of Rule 15c2-12 promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended
("Rule 15c2-12"), except for information permitted to be omitted therefrom by Rule 15c2-12.
The District hereby acknowledges that the Preliminary Official Statement has been made
available to investors. The District hereby agrees to cause to be delivered to the Underwriter,
within seven(7) business days of the date hereof, copies of the final Official Statement, dated the
date hereof (including any amendments or supplements to such Official Statement as have been
approved by the District and the Underwriter) (the "Official Statement"). The District hereby
agrees to deliver or cause to be delivered to the Underwriter copies of the Official Statement in
sufficient quantity to enable the Underwriter to comply with applicable rules of the Municipal
Securities Rulemaking Board ("MSRB"). The Underwriter hereby agrees to deliver a copy of
the Official Statement to a national repository as soon as practicable after the date hereof and to
each investor that purchases any of the Certificates. The Underwriter shall advise the District of
the date and repository of such filing.
3. Representations, Warranties and Agreements of the District.
The District hereby represents and agrees with the Underwriter as follows:
(a) The District is, and will be on the Closing Date, a public utility district of
the State of California organized and operating pursuant to the laws of the State of
California with the full power and authority to execute and deliver the Official Statement
and to enter into the Trust Agreement, the Installment Purchase Agreement, the
Continuing Disclosure Certificate, the Escrow Agreement and this Purchase Contract
(collectively, the "Legal Documents");
(b) By all necessary official action of the District prior to or concurrently with
the acceptance hereof, the District has duly approved, ratified and confirmed the
execution, delivery and distribution of the Official Statement, and has duly authorized
and approved the execution and delivery of, and the performance by the District of the
obligations on its part contained in, the Legal Documents;
(c) The District is not in any material respect in breach of or default under any
applicable constitutional provision, law or administrative regulation to which it is subject
or any applicable judgment or decree or any loan agreement, indenture, bond, note,
resolution, agreement or other instrument to which the District is a party or to which the
District or any of its property or assets is otherwise subject, and no event has occurred
and is continuing which with the passage of time or the giving of notice, or both, would
45821644.4 3
constitute such a default or event of default in any material respect under any such
instrument; and the execution and delivery of the Legal Documents, and compliance with
the provisions on the District's part contained herein and therein, will not in any material
respect conflict with or constitute a breach of or default under any law, administrative
regulation, judgment, decree, loan agreement, indenture, bond, note, resolution,
agreement or other instrument to which the District is a party or is otherwise subject, nor
will any such execution, delivery, adoption or compliance result in the creation or
imposition of any lien, charge or other security interest or encumbrance of any material
nature whatsoever upon any of the properties or assets of the District under the terms of
any such law, administrative regulation, judgment, decree, loan agreement, indenture,
bond, note, resolution, agreement or other instrument, except as provided in the Trust
Agreement or the Installment Purchase Agreement;
(d) There is no action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, governmental agency, public board or body, to the best
knowledge of the District, after reasonable investigation, pending or threatened against
the District in any material respect affecting the existence of the District or the titles of its
officers to their respective offices or contesting or affecting, as to the District, the validity
or enforceability of the Legal Documents or contesting the powers of the District or its
authority to enter into, adopt or perform its obligations under any of the foregoing, or
contesting in any way the completeness or accuracy of the Official Statement, or any
amendment or supplement thereto, wherein an unfavorable decision, ruling or finding
would materially adversely affect the validity or enforceability of the Legal Documents;
(e) All authorizations, approvals, licenses, permits, consents and orders of any
governmental authority, legislative body, board, agency or commission having
jurisdiction of the matter which are required for the due authorization by, or which would
constitute a condition precedent to or the absence of which would materially adversely
affect the due performance by, the District of its obligations in connection with the
execution and delivery of the Certificates have been duly obtained, except for such
approvals, consents and orders as may be required under the Blue Sky or securities laws
of any state in connection with the offering and sale of the Certificates, and, except as
described in or contemplated by the Official Statement, all authorizations, approvals,
licenses, permits, consents and orders of any governmental authority, board, agency or
commission having jurisdiction of the matter which are required for the due authorization
by, or which would constitute a condition precedent to or the absence of which would
materially adversely affect the due performance by, the District of its obligations under
the Legal Documents have been duly obtained;
(f) The District will furnish such information, execute such instruments and
take such other action in cooperation with the Underwriter as the Underwriter may
reasonably request in order (i)to qualify the Certificates for offer and sale under the Blue
Sky or other securities laws and regulations of such states and other jurisdictions of the
United States as the Underwriter may designate and (ii)to determine the eligibility of the
Certificates for investment under the laws of such states and other jurisdictions, and will
use its best efforts to continue such qualification in effect so long as required for
distribution of the Certificates; provided, however, that in no event shall the District be
45821644.4 4
required to take any action which would subject it to service of process in any jurisdiction
in which it is not now so subject;
(g) As of the date thereof, the Preliminary Official Statement did not contain
any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(h) As of the date thereof and at all times subsequent thereto to and including
the date which is 25 days following the End of the Underwriting Period (as such term is
hereinafter defined) for the Certificates, the Official Statement did not and will not
contain any untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(i) If between the date thereof and the date which is 25 days following the
End of the Underwriting Period for the Certificates, an event occurs which might or
would cause the information contained in the Official Statement, as then supplemented or
amended, to contain an untrue statement of a material fact or to omit to state a material
fact required to be stated therein or necessary to make such information therein, in the
light of the circumstances under which it was presented, not misleading, the District will
notify the Underwriter, and, if in the opinion of the District, the Underwriter or their
respective counsel, such event requires the preparation and publication of a supplement
or amendment to the Official Statement, the District will forthwith prepare and furnish to
the Underwriter (at the expense of the District) a reasonable number of copies of an
amendment of or supplement to the Official Statement (in form and substance reasonably
satisfactory to the Underwriter). For the purposes of this subsection, between the date of
the Official Statement and the date which is 25 days following the End of the
Underwriting Period, the District will furnish such information with respect to itself as
the Underwriter may from time to time reasonably request;
0) If the information contained in the Official Statement is amended or
supplemented pursuant to paragraph(i) hereof, at the time of each supplement or
amendment thereto and (unless subsequently again supplemented or amended pursuant to
such subparagraph) at all times subsequent thereto up to and including the date which is
25 days following the End of the Underwriting Period, the portions of the Official
Statement so supplemented or amended will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make such information therein, in the light of the circumstances under which it was
presented, not misleading;
(k) After the Closing, the District will not participate in the issuance of any
amendment of or supplement to the Official Statement to which, after being furnished
with a copy, the Underwriter shall reasonably object in writing or which should be
disapproved by counsel for the Underwriter;
45821644.4 5
(1) Between the date of this Purchase Contract and the Closing Date, except
as disclosed in the Official Statement, the District will not, without the prior written
consent of the Underwriter, offer or issue any bonds, notes .or other obligations for
borrowed money, or incur any material liabilities direct or contingent, payable from Net
Revenues of its Water System, other than in the ordinary course of its business;
(m) As used herein and for the purposes of the foregoing, the term "End of the
Underwriting Period" for the Certificates shall mean the earlier of (i) the Closing Date
unless the District shall have been notified in writing to the contrary by the Underwriter
on or prior to the Closing Date, or (ii) the date on which the End of the Underwriting
Period for the Certificates has occurred under Rule 15c2-12; provided, however, that the
District may treat as the End of the Underwriting Period for the Certificates the date
specified as such in a notice from the Underwriter stating the date which is the End of the
Underwriting Period;
(n) The audited financial statements of the District contained in Appendix B
to the Official Statement do and will fairly present the financial position and results of
operations of the District as of the dates and for the periods therein set forth in
accordance with generally accepted accounting principles applied consistently; and
(o) Any certificate signed by any authorized official of the District and
delivered to the Underwriter in connection with the execution and delivery of the
Certificates, shall be deemed a representation and warranty by the District to the
Underwriter as to the statements made therein.
4. Conditions to the Obligations of the Underwriter.
The Underwriter hereby enters into this Purchase Contract in reliance upon the
representations and warranties of the District contained herein and the representations to be
contained in the documents and instruments to be delivered at the Closing and upon the
performance by the District of its obligations both on and as of the date hereof and as of the
Closing Date. Accordingly, the Underwriter's obligations under this Purchase Contract to
purchase, to accept delivery of and to pay for the Certificates shall be subject, at the option of the
Underwriter, to the accuracy in all material respects of the representations of the District
contained herein as of the date hereof and as of the Closing Date, to the accuracy in all material
respects of the statements of the officers and other officials of the District made in any certificate
or other document furnished pursuant to the provisions hereof, to the performance by the District
of its obligations to be performed hereunder and under such documents and instruments at or
prior to the Closing Date, and also shall be subject to the following additional conditions:
(a) The Underwriter shall receive, within seven (7) business days of the date
hereof, copies of the Official Statement and any amendments or supplements as have
been approved by the Underwriter, in such reasonable quantity as the Underwriter shall
have requested;
45821644.4 6
(b) The representations and warranties of the District contained herein shall be
true and correct in all material respects on the date hereof and on the Closing Date, as if
made on and at the Closing Date;
(c) At the Closing Date, the Trust Agreement, the Installment Purchase
Agreement, the Assignment Agreement, the Continuing Disclosure Certificate, the
Escrow Agreement and this Purchase Contract shall have been duly authorized, executed
and delivered by the respective parties thereto, and the Official Statement shall have been
duly authorized, executed and delivered by the District, as applicable, all in substantially
the forms heretofore submitted to the Underwriter, with only such changes as shall have
been agreed to in writing by the Underwriter, and shall be in full force and effect; and
there shall be in full force and effect such resolution or resolutions of the board of
directors of the District as, in the opinion of Stradling Yocca Carlson & Rauth, A
Professional Corporation, San Francisco, California ("Special Counsel"), shall be
necessary or appropriate in connection with the transactions contemplated hereby;
(d) Between the date hereof and the Closing Date, the market price or
marketability of the Certificates shall not have been materially adversely affected, in the
reasonable judgment of the Underwriter (evidenced by a written notice to the District
terminating the obligation of the Underwriter to accept delivery of and make any
payment for the Certificates), by reason of any of the following:
(1) an amendment to the Constitution of the United States or by any
legislation (A) enacted by the United States, (B)recommended to the Congress or
otherwise endorsed for passage, by press release, other form of notice or
otherwise, by the President of the United States, the Treasury Department of the
United States, the Internal Revenue Service or the Chairman or ranking minority
member of the Committee on Finance of the United States Senate or the
Committee on Ways and Means of the United States House of Representatives,
(C)presented as an option for consideration by either such Committee by the staff
of such Committee or by the staff of the Joint Committee on Taxation of the
United States Congress or (D) favorably reported for passage to either House of
the Congress by any Committee of such House or by a Conference Committee of
both Houses to which such legislation has been referred for consideration, or by
any decision of any court of the United States or by any ruling or regulation(final,
temporary or proposed) on behalf of the Treasury Department of the United
States, the Internal Revenue Service or any other authority of the United States or
by any comparable legislative, judicial or administrative development affecting
the federal tax status of the District, its property or income, or the interest on its
bonds or other obligations of the general character of the Certificates (including
the Certificates);
(2) legislation enacted, introduced in the Congress or recommended
for passage by the President of the United States, or a decision rendered by a court
established under Article III of the Constitution of the United States or by the Tax
Court of the United States, or an order, ruling, regulation (final, temporary or
proposed) or official statement issued or made by or on behalf of the Securities
45821644.4 7
and Exchange Commission, or any other governmental agency having jurisdiction
of the subject matter shall have been made or issued to the effect that obligations
of the general character of the Certificates, or the Certificates are not exempt from
registration under the Securities Act of 1933, as amended, or that the Trust
Agreement is not exempt from qualification under the Trust Indenture Act of
1939, as amended;
(3) the declaration of war or any outbreak of or escalation of hostilities
or acts of terrorism involving the United States or the occurrence of any other
national or international emergency or calamity, crisis or event relating to the
effective operation of the government of, or the financial community in, the
United States;
(4) the declaration of a general banking moratorium by federal, New
York or California authorities, or the general suspension of trading on any
national securities exchange or any material disruption in commercial banking or
securities settlement or clearing services;
(5) the imposition by the New York Stock Exchange or other national
securities exchange, or any governmental authority, of any material restrictions
not now in force with respect to the Certificates or obligations of the general
character of the Certificates or securities generally, or the material increase of any
such restrictions now in force, including those relating to the extension of credit
by, or the charge to the net capital requirements of, the Underwriter;
(6) an order, decree or injunction of any court of competent
jurisdiction, or order, ruling, regulation or official statement by the Securities and
Exchange Commission, or any other governmental agency having jurisdiction of
the subject matter, issued or made to the effect that the issuance, offering or sale
of obligations of the general character of the Certificates, or the issuance, offering
or sale of the Certificates, including any or all underlying obligations, as
contemplated hereby or by the Official Statement, is or would be in violation of
the federal securities laws as amended and then in effect;
(7) the downgrading, suspension or withdrawal, or any official
statement as to a possible downgrading, suspension or withdrawal, of any rating
of the Certificates by any rating agency then rating the Certificates; or
(8) any event occurring, or information becoming known which in the
reasonable judgment of the Underwriter, makes untrue in any material respect any
statement or information contained in the Official Statement, or has the effect that
the Official Statement contains any untrue statement of material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made,
not misleading;
45821644.4 8
(e) Prior to or simultaneous with the execution of this Purchase Contract, the
Underwriter shall have received from the District a letter, dated the date of the
Preliminary Official Statement, addressed to the Underwriter, consenting to the posting
of the Preliminary Official Statement, substantially in the form attached hereto as
Exhibit D;
(f) At or prior to the Closing Date, the Underwriter shall have received the
following documents, in each case satisfactory in form and substance to the Underwriter:
(1) The Official Statement and each supplement or amendment, if any
thereto, executed on behalf of the District;
(2) Copies of the Trust Agreement, the Installment Purchase
Agreement, the Assignment Agreement, the Escrow Agreement and the
Continuing Disclosure Certificate, duly executed and delivered by the respective
parties thereto;
(3) The approving opinion of Special Counsel, dated the Closing Date
and addressed to the District, in substantially the form attached to the Official
Statement as Appendix C thereto;
(4) The supplemental opinion of Special Counsel, dated the Closing
Date and addressed to the Underwriter in substantially the form attached hereto as
Exhibit B;
(5) The defeasance opinion of Special Counsel with respect to the
Refunded Certificates, dated the Closing Date and addressed to the District, the
Insurer, the Trustee and the Underwriter in form and substance acceptable to such
entities;
(6) The opinion of General Counsel of the District, dated the Closing
Date and addressed to the Insurer and the Underwriter, in substantially the form
attached hereto as Exhibit C;
(7) The opinion of counsel to the Corporation, dated the Closing Date
and addressed to the Insurer, the District and the Underwriter, to the effect that (i)
the Corporation is a California corporation duly organized and validly existing
pursuant to the laws of the State of California; (ii) the Trust Agreement, the
Installment Purchase Agreement and the Assignment Agreement have been duly
authorized, executed and delivered by the Corporation and, assuming due
authorization, execution and delivery by the other parties thereto, constitute legal,
valid and binding agreements of the Corporation enforceable in accordance with
their respective terms, subject to laws relating to bankruptcy, insolvency or other
laws affecting the enforcement of creditors' rights generally and the application of
equitable principles if equitable remedies are sought; and (iii) assuming due
execution and delivery thereof by the Trustee, the execution and delivery of the
Assignment Agreement by the Corporation is effective and sufficient to transfer
all right, title and interest of the Corporation in the Installment Purchase
45821644.4 9
Agreement as are purported to be transferred thereby (including the Installment
Payments) to the Trustee;
(8) The opinion of counsel to the Trustee, dated the Closing Date and
addressed to the Insurer, the District and the Underwriter, to the effect that (i) the
Trustee is a national banking association duly organized, validly existing and in
good standing under the laws of the United States and has full power and
authority to execute and deliver the Trust Agreement and the Assignment
Agreement and to perform its obligations thereunder; (ii) the Trust Agreement
and the Assignment Agreement have been duly authorized, executed and
delivered by the Trustee and constitute the valid and binding obligations of the
Trustee enforceable against the Trustee in accordance with their respective terms,
except insofar as the validity, binding nature and enforceability of the Trustee's
obligations thereunder may be limited by the effect of (a) insolvency,
reorganization, arrangement, moratorium, fraudulent transfer and other similar
laws, (b) the discretion of any court of competent jurisdiction in awarding
equitable remedies, including, without limitation, specific performance or
injunctive relief and (c)the effect of general principles of equity;
(9) The opinion of counsel to the Escrow Agent, dated the Closing
Date and addressed to the Insurer, the District and the Underwriter, to the effect
that (i) the Escrow Agent is a national banking association duly organized, validly
existing and in good standing under the laws of the United States and has full
power and authority to execute and deliver the Escrow Agreement and to perform
its obligations thereunder; (ii) the Escrow Agreement has been duly authorized,
executed and delivered by the Escrow Agent and constitutes the valid and binding
obligation of the Escrow Agent enforceable against the Escrow Agent in
accordance with its terms, except insofar as the validity, binding nature and
enforceability of the Escrow Agent's obligations thereunder may be limited by the
effect of (a) insolvency, reorganization, arrangement, moratorium, fraudulent
transfer and other similar laws, (b)the discretion of any court of competent
jurisdiction in awarding equitable remedies, including, without limitation, specific
performance or injunctive relief and (c) the effect of general principles of equity;
(10) The opinion of Fulbright & Jaworski L.L.P., Los Angeles,
California, Underwriter's Counsel, dated the Closing Date and addressed to the
Underwriter, in form and substance acceptable to the Underwriter;
(11) A certificate or certificates, dated the Closing Date, signed by a
duly authorized official of the District satisfactory to the Underwriter, in form and
substance satisfactory to the Underwriter, to the effect that (i)the representations
of the District contained in this Purchase Contract are true and correct in all
material respects on and as of the Closing Date with the same effect as if made on
the Closing Date; (ii) there is no action, suit, proceeding, inquiry or investigation,
to the best knowledge of such official, pending or threatened (a) to restrain or
enjoin the execution or delivery of the Certificates, (b) in any way contesting or
affecting the validity of the Certificates or any of the Legal Documents or (c) in
45821644.4 10
any way contesting the existence or powers of the District, nor to the best
knowledge of such official after reasonable investigation, is there any basis for
any such action, suit, proceeding, inquiry or investigation, wherein an unfavorable
decision, ruling or finding would make invalid or materially adversely affect the
authorization, execution, delivery or performance by the District of any of the
foregoing; and (iii) no event affecting the District has occurred since the date of
the Official Statement which either makes untrue or incorrect in any material
respect as of the Closing Date any statement or information contained in the
Official Statement relating to the District or is not reflected in the Official
Statement but should be reflected therein in order to make the statements and
information therein relating to the District not misleading in any material respect;
and (iv) since December 31, 2005, except as referred to in or as contemplated by
the Official Statement, with respect to its Water System, the District has not
incurred any financial liabilities, direct or contingent, or entered into any
transactions and there has not been any adverse change in the condition, financial
or physical, of the Water System, in any case that would materially and adversely
affect the ability of the District to meet its obligations under the Installment
Purchase Agreement;
(12) A certificate or certificates, dated the Closing Date, signed by a
duly authorized official of the Corporation satisfactory to the Underwriter, in form
and substance satisfactory to the Underwriter, to the effect that (i) the Corporation
is, and was at all relevant times, a California corporation duly organized and
validly existing under the laws of the State of California; (ii)the Installment
Purchase Agreement, the Assignment Agreement and the Trust Agreement were
duly executed and delivered in the name and on behalf of the Corporation by
officers of the Corporation duly authorized to execute, attest and deliver such
agreements on behalf of the Corporation, and constitute the legal, valid and
binding obligations of the Corporation enforceable against the Corporation in
accordance with their terms, except as limited by applicable bankruptcy,
insolvency, reorganization, assignment, fraudulent conveyance, moratorium or
other laws affecting the enforcement of the rights of creditors of the Corporation
and by general principles of equity; (iii)the Corporation has complied with all the
terms of the Trust Agreement, the Assignment Agreement and the Installment
Purchase Agreement to be complied with by the Corporation prior to or
concurrently with the Closing and such documents are in full force and effect as
to the Corporation; and (iv) the information in the Official Statement under the
caption"THE CORPORATION" is true and correct;
(13) A certificate, dated the Closing Date, signed by a duly authorized
officer of the Trustee, satisfactory in form and substance to the Underwriter, to
the effect that (i) the Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States, having
the full power and being qualified to enter into and perform its duties under the
Trust Agreement and the Assignment Agreement; (ii) to the best of such officer's
knowledge, the execution and delivery of the Trust Agreement and the
Assignment Agreement and compliance with the provisions on the Trustee's part
45821644.4 11
contained therein, will not conflict with or constitute a breach of or default under
any law, administrative regulation, judgment, decree, loan agreement, indenture,
bond, note, resolution, agreement or other instrument to which the Trustee is a
party or is otherwise subject; (iii)to the best of such officer's knowledge, the
Trustee has not been served with any action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, governmental agency,
public board or body, nor is any such action threatened against the Trustee,
affecting the existence of the Trustee, or the titles of its officers to their respective
offices, or contesting or affecting the validity or enforceability of the Trust
Agreement or the Assignment Agreement against the Trustee, or contesting the
powers of the Trustee or its authority to enter into, adopt or perform its
obligations under any of the foregoing, wherein an unfavorable decision, ruling or
finding would materially adversely affect the validity or enforceability of the
Trust Agreement or the Assignment Agreement against the Trustee;
(14) A certificate, dated the Closing Date, signed by a duly authorized
officer of the Escrow Agent, satisfactory in form and substance to the Insurer, the
District and the Underwriter, to the effect that (i)the Escrow Agent is a national
banking association duly organized, validly existing and in good standing under
the laws of the United States, having the full power and being qualified to enter
into and perform its duties under the Escrow Agreement; (ii) to the best of such
officer's knowledge, the execution and delivery of the Escrow Agreement and
compliance with the provisions on the Escrow Agent's part contained therein, will
not conflict with or constitute a breach of or default under any law, administrative
regulation, judgment, decree, loan agreement, indenture, bond, note, resolution,
agreement or other instrument to which the Escrow Agent is a party or is
otherwise subject; (iii)to the best of such officer's knowledge, the Escrow Agent
has not been served with any action, suit, proceeding, inquiry or investigation, at
law or in equity, before or by any court, governmental agency, public board or
body, nor is any such action threatened against the Escrow Agent, affecting the
existence of the Escrow Agent, or the titles of its officers to their respective
offices, or contesting or affecting the validity or enforceability of the Escrow
Agreement against the Escrow Agent, or contesting the powers of the Escrow
Agent or its authority to enter into, adopt or perform its obligations under the
foregoing, wherein an unfavorable decision, ruling or finding would materially
adversely affect the validity or enforceability of the Escrow Agreement against
the Escrow Agent;
(15) A specimen of the Policy issued by the Insurer;
(16) The opinion of counsel to the Insurer, dated the Closing Date,
addressed to the District, the Corporation and the Underwriter, and a certificate of
the Insurer in form and substance acceptable to Special Counsel and the
Underwriter;
45821644.4 12
(17) Certified copies of the resolution or resolutions of the District
authorizing the execution and delivery of the Legal Documents and the Official
Statement;
(18) Certified copies of the resolution or resolutions of the Corporation
authorizing the execution and delivery of the Trust Agreement, the Assignment
Agreement and the Installment Purchase Agreement;
(19) Evidence that any ratings on the Certificates described in the
Official Statement are in full force and effect as of the Closing Date;
(20) A copy of any Preliminary Blue Sky Survey;
(21) A copy of the audited financial statements of the District included
as Appendix B to the Official Statement;
(22) An arbitrage certification by the District with respect to the
Certificates in form satisfactory to Special Counsel;
(23) A Verification Report acceptable to Special Counsel; and
(24) Such additional legal opinions, certificates, proceedings,
instruments, insurance policies or evidences thereof and other documents as the
Underwriter, Underwriter's Counsel or Special Counsel may reasonably request
to evidence the truth and accuracy, as of the date hereof and as of the Closing
Date, of the representations of the District herein and of the statements and
information contained in the Official Statement, and the due performance or
satisfaction by the District at or prior to the Closing of all agreements then to be
performed and all conditions then to be satisfied by the District in connection with
the transactions contemplated hereby and by the Legal Documents and the
Official Statement.
If the District shall be unable to satisfy the conditions to the Underwriter's obligations
contained in this Purchase Contract or if the Underwriter's obligations shall be terminated for
any reason permitted herein, all obligations of the Underwriter hereunder may be terminated by
the Underwriter at, or at any time prior to, the Closing Date by written notice to the District and
neither the Underwriter nor the District shall have any further obligations hereunder. In the event
that the Underwriter fails (other than for a reason permitted by this Purchase Contract) to accept
and pay for the Certificates at the Closing, the amount of one percent (1%) of the principal
amount of the Certificates will be accepted as liquidated damages for such failure and for any
and all defaults hereunder on the part of the Underwriter and the acceptance of such amount shall
constitute a full release and discharge of all claims and rights of the District against the
Underwriter.
5. Expenses.
All expenses and costs incident to the authorization, execution, delivery and sale of the
Certificates to the Underwriter, including the costs of preparing and printing of the Certificates,
45821644.4 13
the Preliminary Official Statement and the Official Statement (in reasonable quantities), any
bond insurance premium, the fees of accountants, financial advisors, verification agents and
consultants, the initial fees of the Trustee and its counsel, the initial fees of the Escrow Agent
and its counsel, the initial fees and expenses of the Corporation and its counsel in connection
with the execution and delivery of the Certificates and the fees and expenses of Special Counsel
shall be paid from the proceeds of the Certificates. If the Certificates for any reason are not
executed and delivered, or to the extent proceeds of the Certificates are insufficient or
unavailable therefor, any such fees, costs and expenses owed by the District, which otherwise
would have been paid from the proceeds of the Certificates, shall be paid by the District. All
out-of-pocket expenses of the Underwriter, including traveling and other expenses, the California
Debt and Investment Advisory Commission fee and the fees and expenses of Underwriter's
Counsel, shall be paid by the Underwriter.
6. Notices.
Any notice or other communication to be given under this Purchase Contract may be
given by delivering the same in writing to the respective parties at the following address:
Underwriter: Stone &Youngberg LLC
450 Lexington Avenue
Suite 3750
New York, New York 10017
Attention: John E. Muus
District: Truckee Donner Public Utility District
11570 Donner Pass Road
Truckee, California 96160
Attention: General Manager
7. Survival of Representations and Warranties.
The representations and warranties of the District set forth in or made pursuant to this
Purchase Contract shall not be deemed to have been discharged, satisfied or otherwise rendered
void by reason of the Closing or termination of this Purchase Contract regardless of any
investigations or statements as to the results thereof made by or on behalf of the Underwriter and
regardless of delivery of and payment for the Certificates.
8. Effectiveness and Counterpart Signatures.
This Purchase Contract shall become effective and binding upon the respective parties
hereto upon the execution hereof by a duly authorized officer of the District and shall be valid
and enforceable as of the time of such execution. This Purchase Contract may be executed by
the parties hereto in separate counterparts, each of which when so executed and delivered shall
be an original, but all such counterparts shall together constitute but one and the same
instrument.
45821644.4 14
9. Parties in Interest.
This Purchase Contract is made solely for the benefit of the District and the Underwriter
(including the successors or assigns of the Underwriter) and no other person shall acquire or
have any right hereunder or by virtue hereof. No assignment of this Purchase Contract shall be
made by the Underwriter without the consent of the District.
10. Headings.
The headings of the sections of this Purchase Contract are inserted for convenience only
and shall not be deemed to be a part hereof.
11. Governing Law.
This Purchase Contract shall be construed in accordance with the laws of the State of
California.
Very truly yours,
STONE& YOUNGBERG LLC, as Underwriter
By:
Director
ACCEPTED:
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
By:
President
ATTESTED:
By:
Clerk
ACKNOWLEDGED:
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
FINANCING CORPORATION
By:
Treasurer
45821644.4 15
EXHIBIT A
MATURITY SCHEDULE
Payment Date Principal Interest Price or
(November 15) Amount Rate Yield
45821644.4 A-I
EXHIBIT B
FORM OF SUPPLEMENTAL OPINION OF
STRADLING YOCCA CARLSON & RAUTH
Stone & Youngberg LLC
San Francisco, California
Re: Truckee Donner Public Utility District Refunding Revenue Certificates of
Participation(Water System Improvement Projects) Series 2006
Ladies and Gentlemen:
This letter is addressed to you as the Underwriter (the "Underwriter") pursuant to
Section 4(f)(4) of the Purchase Contract, dated October _, 2006 (the "Purchase Contract"), by
and between you and the Truckee Donner Public Utility District (the "District") providing for the
purchase of $ principal amount of Truckee Donner Public Utility District
Refunding Revenue Certificates of Participation (Water System Improvement Projects) Series
2006 (the "Certificates") evidencing interests of the Owners thereof in Installment Payments to
be made by the District. The Certificates are being executed and delivered pursuant to a Trust
Agreement (the "Trust Agreement") dated as of September 1, 2006, by and among the District,
the Truckee Donner Public Utility District Financing Corporation (the "Corporation") and The
Bank of New York Trust Company, N.A., as trustee (the "Trustee"). In connection with the
prepayment of the $8,465,000 outstanding principal amount of Truckee Donner Public Utility
District Refunding Certificates of Participation (Water System Improvement Projects) Series
1996, the District will enter into an Escrow Agreement, dated as of September 1, 2006 (the
"Escrow Agreement'), by and between the District and The Bank of New York Trust Company,
N.A. Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in
the Trust Agreement or, if not defined in the Trust Agreement, in the Purchase Contract.
In addition to the opinions set forth in our final legal opinion concerning the validity of
the Certificates and certain other matters, dated the date hereof and addressed to the Corporation
(but which may be relied upon by yourselves to the same extent as if such opinion were
addressed to you), as of the date hereof, we are of the following opinions or conclusions:
1. The Certificates are not subject to the registration requirements of the Securities
Act of 1933, as amended, and the Trust Agreement is exempt from qualification pursuant to the
Trust Indenture Act of 1939, as amended.
2. The Official Statement, dated October _, 2006, with respect to the Certificates
(the "Official Statement") and the execution and delivery thereof have been duly approved by the
District.
45821644.4 B-1
3. The Purchase Contract, the Escrow Agreement and the Continuing Disclosure
Certificate have been duly authorized, executed and delivered by the District and (assuming due
authorization, execution and delivery by and validity against the other parties thereto) are valid
and binding agreements of the District. We call attention to the fact that the rights and
obligations under the Purchase Contract, the Escrow Agreement and the Continuing Disclosure
Certificate and their enforceability may be subject to bankruptcy, insolvency, reorganization,
assignment, fraudulent conveyance, moratorium and other laws relating to or affecting creditors'
rights, to the application of equitable principles, to the exercise of judicial discretion in
appropriate cases and to the limitations or legal remedies against public entities in the State of
California. We express no opinion with respect to any indemnification, contribution, choice of
law, choice of forum or waiver provisions contained in the Purchase Contract, the Escrow
Agreement or the Continuing Disclosure Certificate.
4. The statements contained in the Official Statement under the captions "THE
REFUNDING PLAN," "THE CERTIFICATES," "SECURITY FOR THE CERTIFICATES,"
"TAX EXEMPTION," APPENDIX A — "SUMMARY OF PRINCIPAL LEGAL
DOCUMENTS," and APPENDIX C — "FORM OF LEGAL OPINION" and APPENDIX E —
"FORM OF CONTINUING DISCLOSURE CERTIFICATE," insofar as such statements
expressly summarize certain provisions of the Trust Agreement, the Installment Purchase
Agreement, the Escrow Agreement and the Continuing Disclosure Certificate, and our opinion
concerning certain federal tax matters relating to the Certificates, are accurate in all material
respects.
This letter is furnished by us as Special Counsel. No attorney-client relationship has
existed or exists between our firm and you in connection with the Certificates or by virtue of this
letter. We disclaim any obligation to update this letter. This letter is delivered to you as
Underwriter of the Certificates, is solely for your benefit as such Underwriter and is not to be
used, circulated, quoted or otherwise referred to or relied upon for any other purpose or by any
other person. This letter is not intended to, and may not, be relied upon by owners of the
Certificates or by any other party to whom it is not specifically addressed.
Very truly yours,
45821644.4 B-2
EXHIBIT C
FORM OF OPINION OF DISTRICT COUNSEL
[Insurer; City and State of Insurer]
Stone &Youngberg LLC
San Francisco, California
Re: Truckee Donner Public Utility District Refunding Revenue Certificates of
Participation (Water System Improvement Projects) Series 2006
Ladies and Gentlemen:
I am General Counsel to the Truckee Donner Public Utility District (the "District"), a
public utility district organized and existing pursuant to Division 7 of the Public Utilities Code of
the State of California, as amended. This opinion is rendered in connection with the execution,
sale and delivery of $ principal amount of Truckee Donner Public Utility District
Refunding Revenue Certificates of Participation (Water System Improvement Projects) Series
2006 (the "Certificates") evidencing interests of the Owners thereof in Installment Payments to
be made by the District. Capitalized terms used herein not otherwise defined shall have the
meanings ascribed thereto in the hereinafter referenced Trust Agreement.
In rendering this opinion, I have examined the following documents: (i) the Trust
Agreement, dated as of September 1, 2006 (the "Trust Agreement"), by and among the District,
the Truckee Donner Public Utility District Financing Corporation (the "Corporation") and The
Bank of New York Trust Company, N.A., as trustee (the "Trustee"); (ii)the Installment Purchase
Agreement dated as of September 1, 2006 (the "Installment Purchase Agreement"), by and
between the District and the Corporation; (iii) the Purchase Contract, dated October _, 2006
(the "Purchase Contract"), by and between the District and the Underwriter; (iv) the Continuing
Disclosure Certificate, dated as of September 1, 2006 (the "Continuing Disclosure Certificate"),
by and between the District and the Trustee; (v) the Escrow Agreement, dated as of September 1,
2006 (the "Escrow Agreement"), by and between the District and The Bank of New York Trust
Company, N.A., as escrow agent; and (vi)the Official Statement, dated October _, 2006 (the
"Official Statement"), relating to the Certificates. In connection with the prepayment of the
$8,465,000 outstanding principal amount of Truckee Donner Public Utility District Refunding
Certificates of Participation (Water System Improvement Projects) Series 1996, the District will
enter into the Escrow Agreement. In addition, I have examined such other documents and
instruments, including certificates of public officials, and have made such investigations of law
and of fact as I have deemed necessary or appropriate for the purpose of rendering the opinions
set forth herein.
45821644.4 C-1
Based on the foregoing, I am of the opinion that:
1. The District is, and was at all relevant times, a public utility district duly
organized and validly existing under the laws of the State of California.
2. The resolution or resolutions of the District(the "District Resolutions") approving
and authorizing the execution and delivery of the Trust Agreement, the Installment Purchase
Agreement, the Purchase Contract, the Escrow Agreement and the Continuing Disclosure
Certificate by the District and the transactions contemplated thereby were duly adopted at
meetings of the Board of Directors of the District, which were called and held pursuant to law
and with all public notice required by law and at which a quorum was present and acting
throughout.
3. There is no action, suit, proceeding or investigation at law or in equity before or
by any court, public board or body, pending (with service of process having been accomplished)
or, to my current actual knowledge after reasonable investigation, threatened against or affecting
the District to restrain or enjoin the Installment Payments under the Installment Purchase
Agreement, in any way contesting or affecting the validity of the Certificates, the Trust
Agreement, the Installment Purchase Agreement, the Continuing Disclosure Certificate, the
Escrow Agreement or the Purchase Contract.
4. The adoption of the District Resolutions and the execution and delivery by the
District of the Trust Agreement, the Installment Purchase Agreement, the Continuing Disclosure
Certificate, the Purchase Contract, the Escrow Agreement and the Official Statement, and
compliance by the District with the provisions of the foregoing, as appropriate, under the
circumstances contemplated thereby, does not and will not in any material respect conflict with
or constitute on the part of the District a breach or default under any agreement or other
instrument to which the District is a party (and of which I have current actual knowledge after
reasonable investigation) or by which it is bound (and of which I have current actual knowledge
after reasonable investigation) or any existing law, regulation, court order or consent decree to
which the District is subject.
5. The Official Statement, the Trust Agreement, the Installment Purchase
Agreement, the Continuing Disclosure Certificate, the Escrow Agreement and the Purchase
Contract have been duly authorized, executed and delivered by the District and, assuming due
authorization, execution and delivery by other parties thereto, the Trust Agreement, the
Installment Purchase Agreement, the Continuing Disclosure Certificate, the Escrow Agreement
and the Purchase Contract constitute legal, valid and binding agreements of the District,
enforceable in accordance with their respective terms, subject in each case to laws relating to
bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights generally and
the application of equitable principles if equitable remedies are sought. The enforceability of the
foregoing agreements may be subject or limited by the unenforceability under certain
circumstances of provisions imposing penalties, forfeitures or late payment charges upon
delinquency in payment or occurrence of a default, and no opinion is expressed as to any
indemnification provisions contained therein.
45821644.4 C-2
6. Except as described in the Official Statement, no authorization, approval, consent,
or other order of the State of California or any other governmental authority or agency within the
State of California having jurisdiction over the District is required for the adoption of the District
Resolutions and for the valid authorization, execution, delivery and performance by the District
of the Official Statement, the Trust Agreement, the Installment Purchase Agreement, the
Continuing Disclosure Certificate, the Escrow Agreement or the Purchase Contract which has
not been obtained, provided that no opinion is expressed with respect to qualification under Blue
Sky or other state securities laws.
7. Without having undertaken to determine independently the accuracy,
completeness or fairness of the statements contained in the Official Statement and based upon
the information made available to me in the course of my participation in the preparation of the
Official Statement as General Counsel for the District, nothing has come to my attention which
would cause me to believe that the Official Statement (excluding therefrom the information
concerning the Insurer and its Policy, The Depository Trust Company, New York, New York
and its book-entry system and the financial statements and the statistical data included in the
Official Statement, as to which no opinion is expressed), as of the date thereof and the Closing
Date, contained an untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
S. Under the laws of the State of California, the District has the authority to fix and
collect rates and charges for water service and is not presently subject to the regulatory
jurisdiction of any state, regional or local governmental regulatory authority in connection with
fixing and collecting such charges, and, to my current actual knowledge after reasonable
investigation, no legislation is proposed or pending to restrict or limit such rates and charges
except as set forth in the Official Statement.
9. The Net Revenues of the Water System (as defined in the Official Statement) are
free and clear of and from any and all liens and encumbrances other than as set forth in the
Official Statement.
This letter is furnished by me as General Counsel to the District. No attorney-client
relationship has existed or exists between me and yourselves in connection with the delivery of
the Certificates or by virtue of this letter. This letter is delivered to you as the Insurer and the
Underwriter of the Certificates and is solely for your benefit as such Insurer and Underwriter,
respectively, and is not to be used, circulated, quoted or otherwise referred to or relied upon for
any other purpose or by any other person.
Respectfully submitted,
45821644.4 C-3
EXHIBIT D
FORM OF LETTER TO UNDERWRITER
October_, 2006
Stone & Youngberg LLC
San Francisco, California
Ladies and Gentlemen:
With respect to the proposed sale to you, the Underwriter, of its Truckee Donner Public
Utility District Refunding Revenue Certificates of Participation (Water System Improvement
Projects) Series 2006 (the "Certificates") evidencing interests of the Owners thereof in
Installment Payments to be made by the Truckee Donner Public Utility District (the "District"),
the District has delivered to you a Preliminary Official Statement, dated September _, 2006,
relating to the Certificates (the "Preliminary Official Statement"). The District, for purposes of
compliance with Rule 15c2-12 of the Securities and Exchange Commission (the "Rule"), deems
the Preliminary Official Statement to be final as of its date for purposes of the Rule, except for
the omission of no more than the following information: the offering prices, interest rates, selling
compensation, aggregate principal amount, principal amount per maturity, dates of mandatory
sinking fund payments, delivery date, ratings, any other terms of the Certificates relating to such
matters, information relating to the municipal bond insurer, and the policy to be issued by such
insurer.
The District hereby approves the use and the distribution by the Underwriter of the
Preliminary Official Statement and the posting and distribution of the Preliminary Official
Statement.
Sincerely,
TRUCKEE DONNER PUBLIC UTILITY
DISTRICT
By:
Name:
Title:
45821644.4 D-1