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RES 1998-21 - Board
RESOLUTION NO. 9821 OF THE TRUCKEE DONNER PUBLIC UTILITY DISTRICT APPROVING INSTALLMENT PURCHASE AGREEMENT TO ACQUIRE SUBSTATION EQUIPMENT WHEREAS, the Board of Directors of the Truckee Donner Public Utility District has determined that a true and very real need exists for the acquisition of the equipment described in the attached installment purchase agreement, Exhibit D, description of the equipment, presented at this meeting; and WHEREAS, the Board of Directors has taken the necessary stops under applicable law, including any legal bidding requirements, to arrange for the acquisition of such equipment, and WHEREAS, the Board hereby directs its legal counsel to negotiate appropriate modifications to said agreement with Everen Securities, Inc. so as to assure compliance with state law and local statutory law and terms more favorable to the District, prior to execution of the agreement by those persons so authorized by the District for such purposes, NOW THEREFORE BE lT RESOLVED by the Board of Directors of the District as follows: The Board finds that the terms of said installment purchase agreement with Everen Securities are in the best interests of the District for the acquisition of such equipment and the Board designates and confirms the General Manager and the Deputy District Cleric to execute and deliver and to witness (or attest) respectively, the agreement and any related documents necessary for the consummation of the transactions contemplated by the agreement. The District hereby represents that the reasonable anticipated amount of the qualified tax-exempt obligations which have been and will be issued by the District does not exceed$10,000,000 for the calendar year within which this installment purchase agreement is to be "qualified tax-exempt obligation"pursuant to Section 265(b)(3) of the Internal Revenue Code. That in the event that the District has to pay any monies to Western States Electric for such equipment prior to the loan with Everen being completed, it is the District's intention to be reimbursed from the loan proceeds. PASSED AND ADOPTED by the Board of Directors at a meeting duly called and held within the District on the I e day of August 1998 by the following roll call vote. AYES: Aguera, Hemig, Jones and Maass. NOES: None. ABSENT. Sutton. TRUCKEE DONNER PUBLIC UTILITY DISTRICT By Peter L. Izmeist r, lerk the Board ATT Susan M. Craig, Deputy District Cleff INSTALLMENT PURCHASE AGREEMENT SELLER: EVEREN Securities,Inc. 370 Seventeenth Street-Suite 3150 Denver,CO 80202 BUYER: Truckee Donner Public Utility District 11570 Donner Pass Road Truckee,CA 96161 This Installment Purchase Agreement(the"Agreement")entered into between EVEREN Securities,Inc.("Seller"),and Truckee Donner Public Utility District ('Buyer"),a body corporate and politic duly organized and existing under the laws of the State of California("State"); W ITNESSETH: WHEREAS,Seller desires to sell the Equipment,as hereinafter defined,to Buyer,and Buyer desires to purchase the Equipment from Seller,subject to the terms and conditions of and for the purposes set forth in this Agreement;and WHEREAS,Buyer is authorized under the Constitution and laws of the State to enter into this Agreement for the purposes set forth herein: NOW,THEREFORE,for and in consideration of the premises hereinafter contained,the parties hereby agree as follows: ARTICLE I COVENANTS OF BUYER Section 1.01.Covenants of Buyer. Buyer represents,covenants and warrants,for the benefit of Seller and its assignees,as follows: (a) Buyer is a public body,corporate and politic,duly organized and existing under the Constitution of the laws of the State. (b) Buyer will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a body corporate and politic. (c) Buyer is authorized under the Constitution and laws of the State to enter into this Agreement and the transaction contemplated hereby and to perform all of its obligations hereunder. (d) Buyer has been duly authorized to execute and deliver this Agreement under the terms and provisions of the resolution of its governing body,attached hereto as Exhibit A or by other appropriate official approval,and further represents,covenants and warrants that all requirement have been met and procedures have occurred, in order to ensure the enforceability of the Agreement,and Buyer has complied with such public bidding requirements as may be applicable to this Agreement and the acquisition by Buyer of the Equipment thereunder.Buyer shall cause to be executed an opinion of its counsel substantially in the form attached hereto as Exhibit B. (e) During the term of this Agreement,the Equipment will be used by Buyer only for the purpose of performing one or more governmental or proprietary functions of Buyer consistent with the permissible scope of Buyees authority and will not be used in a trade or business of any person or entity other than Buyer as outlined in Exhibit C attached hereto. M During the period this Agreement is in force,Buyer will annually provide Seller with current financial statements,budgets,proof of appropriation for the ensuing fiscal year and such other financial information relating to the ability of Buyer to continue this Agreement as may be reasonably requested by Seller or its assignee. (g) The Equipment will have a useful life in the hands of Buyer that is substantially in excess of the Agreement Term. ARTICLE II DEFINITIONS Section 2.01. Definitions. Unless the context clearly otherwise requires or unless otherwise defined herein,the capitalized terms in this Agreement shall have the respective meanings specified below. "Acceptance Certificate"means a certificate in substantially the form attached hereto as Exhibit F and which shall be delivered by Buyer to Seller upon receipt and acceptance of the Equipment. "Agreement"means this Installment Purchase Agreement with its Exhibits,which Exhibits are attached hereto and incorporated herein by reference. Code means the Internal Revenue Code of 1986,as amended,and to the extent applicable,the regulations and rulings issued thereunder. "Commencement Date"is the date when the term of this Agreement begins and Buyer's obligation to pay installment payment accrues,which date shall be the date set forth on Exhibit E. "Equipment"means the property described in Exhibit D and which is the subject of this Agreement. "Agreement Term"means the period beginning with the Commencement Date and continuing until terminated as outlined in Section 4.01. "Purchase Price"means the amount set forth and so titled in Exhibit E hereto which Buyer may pay to Seller to purchase the Equipment as provided under Section 11.01. "Installment Payments"means the basic Installment Payments payable by Buyer pursuant to Exhibit E of this Agreement. "Vendor"means the manufacturer of the Equipment as well as the agents or dealers of the manufacturer. r I"wllma"wrceuo aoc ARTICLE III SALE OF EQUIPMENT Section 3.01. Sale of Equipment. Seller hereby sells to Buyer, and Buyer purchases from Seller, the Equipment, in accordance with the provisions of this Agreement,to have and to hold for the Agreement Term. ARTICLE IV AGREEMENT TERN Section 4.01. Agreement Term. This Agreement shall be in effect and shall commence as of the Commencement Date and will remain in effect throughout the Agreement Term. The Agreement Term will terminate upon the first to occur of (a)the exercise by Buyer of the option to pay the balance of the principal amount of the purchase price under Articles XI or VI;(b)Seller's election to terminate this Agreement upon a default under Article XIII;(c)the payment by Buyer of all sums required to be paid by Buyer hereunder. ARTICLE V ENJOYMENT OF EQUIPMENT hereunder.Section 5.01. Quiet Eniovment. Seller hereby agrees not to interfere with Buyer's quiet use and enjoyment of the Equipment so long as Buyer is not in default Section 5.02. Use of the Equipment. Buyer will not install,use,operate or maintain the Equipment improperly,carelessly,in violation of any applicable law or in a manner contrary to that contemplated by this Agreement. Section 5.03. Right of Inspection. During the Agreement Term,the Seller and its officers,employees and agents shall have the right at all reasonable times during business hours to enter into and upon the property of the Buyer for the purpose of inspecting the Equipment. Section 5.04. Disclaimer of Warranties. SELLER MAKES NO WARRANTY NOR REPRESENTATION,EITHER EXPRESSED OR IMPLIED,AS TO THE VALUE, DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR FITNESS FOR USE OF THE EQUIPMENT, OR ANY OTHER WARRANTY WITH RESPECT THERETO AND,AS TO THE SELLER,THE BUYER PURCHASES THE EQUIPMENT"AS IS". In no event shall the Seller be liable for any loss or damage,including incidental,indirect,special or consequential damage,in connection with or arising out of this Agreement or the existence,furnishing, functioning or the Buyer's use of anv items or products or services provided for in this Agreement. Section 5.05. Vendors R'arranties. Buyer may assert claims and rights that the Seller may have against any Vendor of any portion of the Equipment. ARTICLE VI INSTALLMENT PAYMENTS Section 6.01. Installment Pavments. The Installment Payments and other amounts payable under this Agreement for each portion thereof during the Agreement Term shall constitute the purchase price therefore and shall be paid by Buyer for and in consideration of the right to the continued quiet use and enjoyment,of the Equipment by Buyer for and during such portion thereof. The covenants on the part of Buyer herein contained shall be deemed to be and shall be construed to be ministerial duties imposed by law and it shall be the ministerial duty of each and every public official of Buyer to carry out and perform the covenants and agreements on the part of Buyer contained in this Agreement. The obligation of Buyer to make Installment Payments or other payments due hereunder does not constitute an obligation of Buyer for which the Buyer is obligated to levy or pledge any form of taxation or for which Buyer has levied or pledged any form of taxation,but Buyer shall impose rates and charges in amounts necessary to make such payments. The obligation of Buyer to make Installment Payments or other payments hereunder does not constitute an indebtedness of Buyer,the State or any of its political subdivisions within the meaning of any constitutional or statutory debt limitation or restriction. Section 6.02. Pavment of Installment Payments. Buyer shall promptly pay Installment Payments,exclusively from legally available funds,in lawful money of the United States of America to Seller in such amounts and on such dates as described in Exhibit E hereto;provided that,if the Equipment has not been accepted by Buyer, such Installment Payments shall be payable solely from amounts deposited with an escrow agent. Section 6.03. Interest and Principal Components. A portion of each Installment Payment is paid as interest,and the balance of each Installment Payment is paid as principal. Exhibit E hereto sets forth the interest component and the principal component of each Installment Payment during the Agreement Term. Section 6.04. Installment Pavments to be Unconditional. THE OBLIGATIONS OF BUYER TO MAKE INSTALLMENT PAYMENTS,AND TO PERFORM AND OBSERVE THE COVENANTS AND AGREEMENTS CONTAINED HEREIN,SHALL BE ABSOLUTE AND UNCONDITIONAL IN ALL EVENTS WITHOUT ABATEMENT,APPROPRIATION,DIMINUTION,DEDUCTION,SET-OFF OR DEFENSE,FOR ANY REASON,EXCEPT AS PROVIDED IN SECTION 6.05. Section 6.05. Triple Net Purchase. This Agreement is intended to be a triple net purchase. Buyer agrees that the Installment Payments and other payments provided for herein shall be an absolute net return to Seller free and clear of any expense,charges or set-offs whatsoever. ARTICLE VII TITLE TO EQUIPMENT;SECURITY INTEREST Section 7.01. Title to the Equipment. During the term of this Agreement,title to the Equipment shall vest in Buyer,subject to Seller's rights upon an Event of Default. Title to the Equipment passes to the Buyer upon the due execution and delivery hereof. Section 7.02. Securitv Interest. As security for its obligations hereunder Buyer grants to Seller a security interest constituting a first lien on the Equipment and on all additions.attachments,accessions and substitutions thereto,and on any proceeds therefrom.. Section 7.03. Liens and Encumbrances to Title. Buyer shall promptly discharge any liens placed on the Equipment other than those created by Seller. ARTICLE VIII .NLAINTENANCE;MODIFICATION;TAXES;INSURANCE AND OTHER CHARGES Section 3.01. Maintenance of Equipment by Buyer. Buyer will,at Buyer's own cost and expense,maintain,preserve and keep the Equipment in good repair. ..., working order and condition. If requested by Seller.Buyer will enter into a maintenance contract for the Equipment with Vendor. Section 3.02. Taxes.Other Governmental Charges and Utility Charges. In the event that the use,possession or acquisition of the Equipment is found to be subject to taxation in any form(except for income takes of Seller),govemment charges or utility charges and expenses. Buyer will pay all such tares and charges as they come due. Insul1mcmd4itlase doc Section 8.03. Provisions Regarding Insurance. At its own expense Buyer shall cause casualty,public liability and property damage insurance to be can ied and maintained(and evidenced by certificates delivered to Seller throughout the Agreement Term)in the amounts and for the coverages set forth on Exhibit G,provided that the amount of casualty and property damage insurance shall not be less than the then applicable Purchase Price. All insurance proceeds from casualty losses shall be payable as hereinafter provided in this Agreement. Section 8.04. Advances. In the event Buyer shall fail to maintain the full insurance coverage required by this Agreement or shall fail to keep the Equipment in good repair and operating condition.Seller may(but shall be under no obligation)to purchase the required policies of insurance and pay the premiums on the same or may make such repairs or replacements as are necessary and provide for payment thereof;and all amounts so advanced therefor by Seller shall be repaid to Seller,together with interest thereon at the rate specified hereafter. Section 8.05. Modifications. Without the prior written consent of the Seller,the Buyer shall not make any material alterations,modifications or attachments to the Equipment. ARTICLE IX DAMAGE,DESTRUCTION AND CONDEMNATION;USE OF NET PROCEEDS Section 9.01. Damage.Destruction and Condemnation. If(a)the Equipment or any portion thereof is destroyed(in whole or in part)or is damaged by fire or other casualty or(b)title to,or the temporary use of the Equipment or any part thereof is taken under the exercise of the power of eminent domain,Buyer and Seller will cause the Net Proceeds of any insurance claim or condemnation award to be applied either to the prompt repair,restoration,modification or replacement of the Equipment or,at Buyer's option,to the payment in full of the Purchase Price. Any balance of the Net Proceeds remaining after such work or purchase has been completed shall be paid to Buyer.For purposes of Article VIII.Section 8.03,and this Article IX,the term"Net Proceeds" shall mean the amount remaining from the gross proceeds of any insurance claim or condemnation award after deducting all expenses(including attorney's fees)incurred in the collection of such claims or award. Section 9.02. Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in full the cost of any repair,restoration,modification or replacement, Buyer shall either(a)complete the work and pay any cost in excess of the amount of Net Proceeds,or(b)Buyer shall pay to Seller the Purchase Price. The amount of the Net Proceeds in excess of the then applicable Purchase Price,if any,may be retained by Buyer. ARTICLE X TAX COVENANT Section I0.01. Tax Covenant. It is the intention of the Buyer and the Seller that the interest portion of the Installment Payments received by the Seller be and remain exempt from federal income taxation. Buyer covenants that it will take any and all reasonable action necessary to maintain the exemption from federal income taxation of the interest portion of the Installment Payments,and that it will not intentionally perform any act or enter into any agreement or use or permit the use of the Equipment or any portion thereof in a manner that shall have the effect of terminating the exemption from federal income taxation of the interest portion of the Installment Payments,including(without limitation)leasing or selling all or any portion of the Equipment or contracting to a third party for the use or operation of all or any portion of the Equipment if entering into such lease or contract would have such effect. ARTICLE XI OPTION TO PREPAY INSTALLMENT PAYMENTS Section 11.01. Purchase Rights. Buyer shall be entitled to prepay the Installment Payments for the Equipment: (a) upon payment in full of all Installment Payments in accordance with Exhibit E hereof and all other amounts due hereunder;or (b) Provided there is no Event of Default hereunder and upon written notice delivered at least 30 days in advance.Buyer may prepay the Installment Payments for the Equipment on any Installment Payment date by paying to Seller the Installment Payment then due,together with the balance of the Purchase Price set forth in Exhibit E along with all other amounts then due hereunder. ARTICLE XII ASSIGNMENT,SUBLEASING,INDEMNIFICATION,.NxORTGAGING AND SELLING Section 12.01. Assignment or Sale by Seller. (a) This Agreement,and the obligations of Buyer to make payments hereunder,may be sold,assigned or otherwise disposed of in whole or in part to one or more successors,grantors,holders,assignees or subassignees by Seller. Upon any sale,disposition,assignment or reassignment.Buyer shall be provided with a notice of said assignment.During the term of this Agreement,Buyer shall each keep a complete and accurate register of all such assignments in form necessary to comply with Section 149(a)of the Code. (b) Buyer agrees to make all payments to the assignee designated in the assignment,notwithstanding any claim,defense,setoff or counterclaim whatsoever (except arising from Seller's breach of this Agreement)that Buyer may from time to time have against Seller or Vendor. Buyer agrees to execute all documents,including notices of assignment and chattel mortgages or financing statements,which may be reasonably requested by Seller or assignee to protect its interests in the Equipment and in this Agreement. (c) Buyer hereby agrees that Seller may sell or offer to sell this Agreement(i)through a certificate of participation program,whereby two or more interests are created in the Agreement, the Equipment or the Installment Payments; or(ii) with other similar instruments, agreements and obligations through a pool, trust, limited partnership,or other entity. Section 12.02. No Sale.Assignment or Subleasing by Buyer. This Agreement and the interest of Buyer in the Equipment may not be sold, assigned or encumbered by Buyer without the prior written consent of Seiler. Section 12.03. Release and Indemnification Covenants. To the extent permitted by the laws and Constitution of the State,Buyer shall protect,hold harmless and indemnify Seller from and against any and all liability,obligations,losses,claims and damages whatsoever,regardless of cause thereof except those resulting from Seller's intentional or negligent acts and expenses in connection therewith,including,without limitation,counsel fees and expenses.penalties and interest arising out of or as the result of the entering into this Agreement,the ownership of any item of the Equipment,the ordering,acquisition,use,operation,condition, purchase,delivery,rejection, storage or return of any item of the Equipment or any accident in connection with the operation,use,condition,possession,storage or return of any item of the Equipment resulting in damage to property or injury to or death to any person. The indemnification arising under this paragraph shall survive the termination of this Agreement. I,w,I1M=LPWCha=doc AIfI'ICLE X111 LVLN'1'S Of DI:FAULF AND REMEDIES Setaiun 13.U1. Lvents ial'Ucl'ault. the rollowlnb ctanytitulc"IwentS of Oefuult"tinder this Agreement.: (a) Failure by tic Auyer to pay anv Instullnicnt 1'ltyment or other puymcnt required to he puid hereunder when due,and Seller has provided written notice to Buyer of Buyer's default licrcundcr and Buyer has failed to cur:such default within ten(10)drys Bonn receipt of the written notice:or (b) Callum by the Buyer to muimuin insurance on the Equipment in accordance with Article Vill Scetion 8.03 hereof,or (e) railure by tha Buyer to observe and perfomn tiny ocher covenant,urnditinn or agreeniuu on its pan to be observed or pertonned for a period of 3t1 days aller written notice is given to tic Myer by thu Seller.specifying such failure tint,requesting that it he remedied:provided,how°ever,dial if the fuilurc stated in such notice cannot be corrected within such 3u-duy pericid.the Scllcr will not onransonubly withhold its consent to an extension of such time if uerrective action is instituted by the Buyer within the applicable period and diligently pursued until the de!'uult is correCIC :air (d) initiation by the Buyu•trl'u procceding under any Icdcaal or suite bu nkruptcy or insolvency law Seeking rtiiel'under such laws containing its indebtedness. Section 13.02. Rctnegiea oil nentull. wttcncvcr any Event of uefault shall have"'CLirrcd and I::continuing,the Seller shall have the right,at its sole option without any further dcn,and or noticc.to wke any one or tiny ulnibination ofthe fallowing remedial Steps: (a) Ternlirtxte dais Agruvnictlt and retake possession and uwnct-ship of the I-quipment wherever situated,and sell or lease,sublease or make other disposition of the P4uipnwi far use:over It to nii in a urmmerrially reasonuhle manner,all for the account of Seller;provided that Buyer s;atl remain directly liable for all amounts due under this Agreement liar the purtataxe or rental of die Equipment,and wipaid by liuyer. Seller shall apirly tltc sale proceeds in the Fallowing aaunner: Fllts'rLY,ti pity all ptrolx:r and rctusonable eost:s and expenses itmocinlcd with the rculvcry,repair,storage and sale or uie Equipment,including rcusonable attorricys'fccs and cxpcnuts: SECONDLY.to pay dru ticlJcr(i)the amuunt col'till unpaid instullmant Payments,if any,which are then due and owing,together with interest and Iata charges thereon,(ii)the then applicable Purchase Price(tx&g irltb rtc011,nnt file pttynacttt ifpK%t due Insualhnent Payments tts ufurmaidf,plus u pro ruts allocation of interest,At tine rate ttllllzed to establish the:lia mst c+omponunt liar tine Rentil puymcnt next due, from the ncvt preceding due date of a Installm.nt Payment until the date of puymcnt by the Buyer.and(iii)tiny olhcr anwunLs clue:he:rt:uider; TI IIRULY,IQ pity du;runuinder of the Sale pmeccds,purchuse mnneys or other unlowits paid by a huyer orthe Equilmnent,to die Buyer. (b) proceed by npprupriatc court cation to cnfurcc perfonuttnce by the Buyer of flit applicable covenants of this Agreement or to recover lbr ilia breach therein;or (c) Use or ruutku<ach portion of dnc Equipment its the Seller,in ivt sole discretion,muy decide. All of the tluyces right.title and interest In any Fquipnlent the possession of which is remI:en by the Seller upon the occurrence of an F.vcnt of Default Shull terminate immediutcly up►in>uch mptrss"sion. Section 13.03. Return of Equi pntcnr. Upon an Event if l.ktault.Buycr agrees to alluw Seller to recover the Equipment at fiuycr's sole cost and expense. Section {3.U4. No ltenrcdy Exclusive:. No remedy herein conl'enctl upon or reserved to die Seiler is intended to be exclusive and every such remedy shall be cumulative and shall he in;tddiliui aar every odner tcmctly given under this Agreement or now or hereul er existing at law or in equity. Section 13.05. Late Charge;Interest tin i,nte Payment. Any lrutullmcnt Payment not paid on the due duce thoreofshall bear a late cluno equal to two perxnt (r/.)of the umuunt cil'ilic p;tsi duc lnaalhiieiiL Puymcnr,but iu nu event Icss tltun$1 o0,00. Any unpaid installment Payment or other amount payable by Buyer to the Seller hereunder,skull bctu interest ut tlto Ic:.cr offal fire rate pryablu on the principal portion ofthe P►INIIHI`ae Prix,plea five fill!pereentube points per annum,or(b)the maximum rate allowed by law. Section 13.O6. lore:,,Marit:urc. Irby reason of rhi-ce maiCil buyer is unable in whole or iri part uo carry out Its agreement on its pun herein contained,other than the obligations tin the p;un of lluye:r contained in Article Vl and Articic Vlll Section 9.03 hereof.Buyer shall not he deemed in default during the continuance ot`suds Inability. The term"tierce m,.Ai4ur:"as used heroirn Shull mcaln,without limitallom the following: at:ts of God,strikes,lockouts or other industrial disturbances:act of public enemies,orders or rtst.uinis+rf;t ny kind of the gov;;mmcm of the Unitctl States of America or the Stutc or any of their dcpArtmtnis,agencies or officials.or any civil or mllitary authority;insurrecrions:riot.;Itindslides.earthquakes:fires;storms;drought.;floods;or explosions. AR•r1CLE XIV MISCF.I.i.ANEOUS Section 14.01. Notices, All nuticcs.certiliciam or other coannntnicntions hereunder shall he sufficiently given and slutll be deemed given when delivered or mailed by registered moil,pnslatac Irrulruid,to the patties tit the addresses set i firth on the first page hc:reol: Scctitill Itindintt Effeet. I i`,is Agreement shall inum to Fite bonellt of lintl shall be binding upon Seller and Buyer and their msptWve successors and 0./signs. Scctiun 14.03. Nrrrntbilir . In the event any provision ofThis Agrccnnent shall he held invalid or unenlbreeable by duty court of competent}urlsdictinn,such holding shall not invalidate Fir rondo urtacilinrctable wzy miter provision hercoE Section 14.04. Anrendnlc•n1a. All amcndrnctits hereto must be ill writing. Section H.W. t_xccninn in CutintcrtimrtS.1•Iaw Agrcclllctit allay he executed in scYcral COullterpart3. Section H.W. Aliplirable I_nyy. This Agreement sltnll be governed by and construed in accordance with die luws ofthe State. Section 14.07, ('n ntiuna. 'Ilse capnom or bending ill File Agreement tut for convenience only and nu way define,limit or describe Flu scope or intent of any provisions or sccliuns ol'thi.A-rceme:nt. Section 14,08, Entir•c,iyrvement. This Agreement umslirures flue entire agreement bctwoen Seller and Buyer. Nn waiver,consent,modification or change of tennis of this Agreement sltnll mind calhur party u.1lcss in writing signed by hnlh palsies,turd then such wuivcr,consent,rrrndification ur change shall be ell'eetive only in the specific insttt,ace unr!lilt r11t:slt�a:ilic p1arl?cyst 6iv:n. Ti:cre urc no underswndinga,agreenlcno;,representutiuns or warranties,cxpr:si or implied,not specified herein regarding this Agrccnnent ur the I:cluilmaui,sold hereunder Any terns and conditiuos err duty pur0use nidcr or other dnewnent(wide ft exception of Supplements)submitted by n Buyer in eannectlu eviui Ihi>rlgr«ulcnl.which s.m in addition act air inconsistent Willi the teen,and eonditluns of this A6r-_ennent will nut he hinding on Seller and will not apply to this Agrccntcat. ltuye:r by tiro signawry below tit its autlturited rclniGSCnittlive Aekne)wledl;et that it hay read this Agrcemellr,understtuoO it and n6rees in be bound �"'"` by its temps wed crnldiricnu. ARTICLE XV DEFEASANCE Section 15.01. Defeasance. The Buyers obligation to pay the Purchase Price will be deemed to be paid and the Buyer's obligations under this Agreement will be discharged and satisfied upon the deposit by the Buyer with the Seller of(a)moneys sufficient to pay the Purchase Price or(b)obligations which are directly insured or guaranteed by the United States or,with the prior written consent of the Seller,any other obligations in which any sinking fund for bonds issued by the Buyer may legally be invested,the principal of and interest on which when due will provide sufficient moneys for such payment. IN WITNESS WHEREOF,Seller has executed this Agreement in its corporate name,attested by its duly authorized officers,and Buyer has caused this Agreement to be executed in its corporate name,attested by its duly authorized officers. All of the above occurred as of the date first written on the heading hereof. Attest: SELLER: EVEREN Securities,Inc. By: By. Title: Title: Date: Attest: BUYER: Truckee Donner Public Utility District By: By. Title: Title: Date: EXHIBIT A `�a>��','�ia�R� � fi��`Kti�,tc�z F �a a a�•i s �;�''qq 1 h i,; e x n a F a. t LYs:.is �•'�'� �\ �.'�'aF x'a.r� .Yea :� C a � '��.'4"�' ` � A\ s/: a`i, Z � i�?iC w`�"�xadd rS 7 'C w'a- S �@': rky - 8^3j£.'�'•''�i� :3.g'c Y...��� 3 a � �\\�'»�a$ �a�,(i x � £��u` .� �x�:'arA.4.���, i�z"@'a�R£ .• �a �fF <^���i a � ;.xx�xs' �� �' : a� �.: � �� 'a�� n•.. \ R �c. \c: S \z \a sa.. erg' swig ?t" � ra' b,•a -.e`� a��� u� z.Y.a�$� L z� a7>.a s�;R��C:. �, 7 y � .':a¢\ � ��� �: z�' r`�:A �..ac ax ;.ab ?,i �id a t f��� A� ; ♦ �.� 5 � ..�. ar sac .:� � c :.'�� .."#'�T £�•�'°�t�.a.�y�'���Y :;"'�� a a5`�'.�a°n .xt<.Gx k\...a '�x c..'.;�# c a'�£� z���a`� �A":�x 3.�. z a:' x i<�.�?u*'d�`a s•c��_� \�..xu �.�., x¢T�'. s:.n ts:<s•?, �x y .r.c � a,; is �� <£�3 i c: aa\.'r��� �s a� ?�, �n�'a"� �..� .8,�' �,?�.'�,s�?.��'� ��r� ""'h�" .�s\�yu•"'��'� 4�T��yua���;'3"3>�z i�'�'a"�x`'� -'�'k• "=r�� x���gx'�e��ux�to::s�.<�� �u' r' .s:� ��'.��� #��; ..� .x4kc`�\ ;�)Mf����i ?�'a�` �� �'���,& � �Y�a���:�.�'�,■#ram. K �Y$da �j, gas �. � �x� E..W a�r.:'�x 7 � ,�. ��K.g� �� � ����YYa a��. WHEREAS, the Board of Directors of the Truckee Donner Public Utility District has determined that a true and very real need exists for the acquisition of the equipment described in the attached Installment Purchase Agreement, Exhibit D Description of the Equipment presented at this meeting, and WHEREAS, the Board of Directors has taken the necessary steps under applicable law, including any legal bidding requirements, to arrange for the acquisition of such equipment, and WHEREAS, the Board hereby directs its legal counsel to negotiate appropriate modifications to said agreement with Everen Securities, Inc. so as to assure compliance with state law and local statutory law, and terms more favorable to the District, prior to execution of the agreement by those persons so authorized by the District for such purposes; NOW, THEREFORE, BE IT RESOLVED by the Board of Directors as follows: 1. The Board finds that the terms of said Installment Purchase Agreement with Everen Securities are in the best interests of the District for the acquisition of such equipment and the Board designates and confirms the General Manager and the Deputy District Clerk to execute and deliver, and to witness (or attest) respectively, the agreement and any related documents necessary for the consummation of the transactions contemplated by the agreement. 2. The District hereby represents that the reasonable anticipated amount of qualified tax-exempt obligations which have been and will be issued by the District does not exceed $10,000,000 for the calendar year within which this Installment Purchase Agreement is to be "qualified tax-exempt obligation"pursuant to Section 265(b)(3) of the Internal Revenue Code. 3. That in the event that the District has to pay any monies to Westem States Electric for such equipment prior to the loan with Everen being completed, it is the District's intention to be reimbursed from the loan proceeds. PASSED AND ADOPTED by the Board of Directors at a meeting duly called and held within the District on the nineteenth day of August, 1998 by the following roll call vote: AYES: NOES: ABSENT. TRUCKEE DONNER PUBLIC UTILITY DISTRICT Peter L. Holzmeister, General Manager Clerk of the Board ATTEST.- Susan M. Craig, Deputy District Clerk r EXHIBIT B OPINION OF BUYER'S COUNSEL (Please furnish this form on Attorney's Letterhead) Buyer. Truckee Donner Public Utility District Gentlemen: As counsel for Truckee Donner Public Utility District ("Buyer"), I have examined duly executed originals of the Installment Purchase Agreement (the "Agreement")dated August 15, 1998,between Buyer and EVEREN Securities,Inc.("Seller"),and based upon the examination and upon such other examination as I have deemed necessary or appropriate,I am of the opinion that: 1. Buyer is a public body corporate and politic,legally existing under the laws of the State of California. 2. The Agreement has been duly authorized,executed and delivered by Buyer,pursuant to constitutional,statutory and/or home rule provision which authorizes this transaction and the Resolution,attached as Exhibit A to the Agreement. 3. The Agreements are a legal,valid and binding obligation of Buyer,enforceable in accordance with their terms. In the event the Seller obtains a judgement against Buyer in money or damages,as a result of an event of default under the Agreement,Buyer will be obligated to pay such judgement. 4. Applicable public bidding requirements have been complied with. 5. To the best of my knowledge,no litigation is pending or threatened in any court or other tribunal,state or federal,in any way questioning or affecting the validity of the resolution or the Agreements. 6. The signatures of the officers of Buyer,which appear on the Agreement,are true and genuine;I know said officers and know them to hold the offices set forth below their names. Respectfully submitted, Counsel EXHIBIT C CERTIFICATE OF BUYER I, am a duly authorized representative and acting Secretary or Clerk of the named Buyer under that certain Installment Purchase Agreement dated August 15, 1998 with EVEREN Securities,Inc.as Seller(the"Agreement")hereby certify as follows and in accordance with the requirements of the Agreement. Capitalized terms used herein have the same meaning as in the Agreement: A. INCUMBENCY OF OFFICERS AND SIGNATURES: I have custody of the records of Buyer and the following officers of the Buyer are duly elected or appointed and hold the office or title set forth opposite each individual's name,and the signatures opposite their names are true and correct,and where required,have been filed with the appropriate officials of the State, and each such individual has the authority to enter into the Agreement on behalf of the Buyer. Name Title/Office S ipnature B. ESSENTIAL USE: 1. The Equipment will be used by the Buyer for the following governmental purpose of. -» 2. The Equipment is essential for the functioning of the Buyer and is immediately needed by the Buyer. Such need is neither temporary nor expected to diminish during the Agreement Term. The Equipment is expected to be used by the Buyer for a period in excess of the Agreement Term. C. SECTION 265(b)(3)MATTERS: Buyer(a)maintains a register or list of Exempt Government Obligations,(b)files when required Form 8038G or Form 8038GC,and(c)therefore can certify that the total Exempt Government Obligations issued to date in the current calendar year,including the Agreement,is less than$10,000,000 and hereby designates the Agreement as a Qualified Tax Exempt Obligation pursuant to Section 265(b)(3)of the internal Revenue Code of 1986,as amended. This Certificate is based upon facts,circumstances,estimates and expectations of the Buyer as of the date on which the Agreement was executed,and to the best of my knowledge and belief;as of this date,such facts,circumstances and estimates are true and correct and such expectations are reasonable. IN WITNESS WHEREOF,I have executed and delivered this certificate as of the_day of .19 Secretary/Clerk F EXHIBIT D DESCRIPTION OF THE EQUIPMENT Equipment: (5)Substation Power Transformers:single phase 5 MVA,60-7.2/12.47kz together with all additions,accessions and replacements thereto. Equipment LOCATION: Truckee Donner Public Utility District By: Title: Date: EXHIBIT E .� MULE OF PAYN-NTB Corrynencement Date 1 :Pml::::Psyxeot;::::::::PnncrPx{::::::::::::::::Foar::::::::::::::::::;:.nteres::::::::::::: -Dat#: ::::Balance Pa mant::.....::Portion...::: 'Porilan''...... 606.032.50 1 154Na 599.41123 14.802.01 8.181.44 6,520.57 619.20532 2 15feb.99 592.70198 14302.01 8,092.06 6,70995 611,98B.57 3 15May99 585,901.45 14,B02.01 8,001.48 6,B00.53 604.6Ba42 4 15Aug.99 579,009.11 14.802.01 7.909.67 6.B92.34 597.288.78 5 15t4ow99 572,023.72 14,802A1 7.816.62 6.965.39 5B9,B0356 6 15•FebO0 564.944.03 14,B02.01 7,722-32 7.079.69 582226.64 7 15May00 557,768.76 14,B02.01 7,626.74 7.175.27 574,556.91 8 15•Aug-00 550.496.63 14,B02.01 7,529.88 7.272.13 566,79322 9 15Nar00 543,126.32 14,802.01 7,431.70 7,370.31 558,934.43 10 154zeb01 535,656.52 14,B02.01 7.332 21 7.469.80 550,979.37 11 15•May01 528,085.87 14,602.01 7,231.36 7,57a65 542,926.65 12 15-Aug01 52Q413.02 14,802.01 7.129.16 7,67285 534.775.70 13 15Nou-01 512,536.59 14.802.01 7.025.58 7.776.43 526.524.69 14 15FebO2 504.755.17 14,802.01 6,92a59 7,881.42 518,172.61 15 15•MeYO2 496.767.35 14,802.01 6,814.19 7,987.82 509,718.21 16 15Aug02 488,671.70 14,802.01 6,706.36 B.095.65 501,16C 25 17 15Nmo C 2 48Q466.76 14,802.01 6.597.0 7 8.204.94 492.497.45 18 15Feb03 472,151.05 14.802.01 6,486.30 8.315.71 483.728,54 19 15•MeyO3 463,72aDB 14,802.01 6.374.04 8.427.97 474.85220 20 15•AugO3 455.181.33 14,80201 6.260.26 8.541.75 465.867.13 21 15Now03 446,524.27 14,802.01 5.14495 8,657.05 456.77199 22 15Feb04 437,750.34 14,B02.01 6,028.08 8.77393 447,56S44 23 15Mey04 428.85796 14,B0201 5,909.63 8,1392.38 438246.11 24 15Aug-04 419,84a53 14,802 01 5,789.58 9.012.43 428,812.51 25 15Nair04 41 Q711.43 14,B0201 546791 9.134.10 419.263.58 26 15FebO5 401.454.02 14,802.01 a544.60 9.257.41 409,597.53 27 15May-05 392,071.64 14,802.01 5.419.63 9.382.38 399,81 aO9 28 15AugO5 382,562.60 14,802.01 5,29297 9,509.04 389,908.79 29 15Nm,05 372,925.19 14,802.01 5.164.60 9.637.41 379,B83.15 30 15Feb06 363.157.67 14,802.01 5.034.49 9,767,52 369.734.72 31 15•May06 353,258.29 14,802.01 4.902.63 9,899.38 359.461.96 32 15 Aug-06 343.225.27 14,80201 4,76899 10,033.02 349.063.36 33 15a`o 333,056.80 14.802.01 4,633.54 10,168.47 =537.37 34 15FebO7 322,751.05 14.802.01 4,49627 1 Q305.74 327,882-44 35 15 AWM 312,305.19 14,802.01 4.357.14 1 Q444.87 317,096.99 36 15•Aug437 301,72a31 14.802.01 4.216.13 10,58SB8 306.179.42 37 15•Now07 290,991.52 14,B0201 4.073.22 1 Q728.79 295.128.11 38 15Feb08 28011790 14,802.01 3,928.39 1Q873B2 263.941.42 39 15 AeyO8 269,097.48 14,B02.01 3.781.59 11,02a42 272.617.69 40 15AL908 257,928.29 14,B0201 a632132 11,169.19 261.155.25 41 15NboM 246,608.31 14,802.01 3,48203 11,31998 249,55239 42 15FebO9 235035.51 14,802.01 3,32921 11,472.80 237,B07.40 43 15AAay09 223,507.83 14,802.01 3.174.33 11,627.68 225.918.53 44 15Aug09 211,723.18 14,802.01 3.017.36 11,784.65 213,BB4.02 45 15^bv4O9 199.779.43 14,B02.01 2.858.25 11,94a75 201,702.09 46 15Feb10 187.674.44 14,802.01 2,697.02 12,10499 189,37093 47 15May10 175,406.03 14,802.01 2,533.60 12,268.41 176,888.71 48 15•Atq 10 162.972.00 14,802.01 2,36798 12.434.03 164,25a59 49 15Now10 150,37Q 11 14,80201 2,200.12 12.60129 151.463.69 50 15fieb-11 137,598.10 14,802.01 2.03a00 12,772.01 138,517.11 51 15Mey11 124,653.66 14,B02.01 1.857.57 12.944.44 125.41193 52 15•Aug 11 111,534.47 14,802.01 1.682.82 13.119.19 112.146.22 53 15t4w-l1 98.238.18 14,802.01 1,505.72 13.2%.29 98,718.00 54 15•Feb12 84,762.39 14.802.01 1.32622 13,475.79 85,125.29 55 15Mw12 71.104.67 14,B02.01 1.14429 13,657.72 71,366.08 56 15Aug12 57.262.57 14,802.01 959.91 13.842.10 57.438.28 57 15Notir12 43,233.60 14,802.01 77a04 14.02897 43,339.89 58 15feb13 29.015.24 14.802.01 513a65 14,218.36 29,068.80 59 15 lay 13 14,604.94 14.B02.01 391.71 14.410.30 14.622.88 60 15Aug13 0.00 14.802.01 197.07 14,60494 a00 TOTALS B88,12a60 282,068.10 606.032.50 Interest Rate 5.40% Truckee-Donner Public Utility District BY TTTLE DATE •Purchase Price after the lease peyrnem has been paid EXHIBIT F ACCEPTANCE CERTIFICATE To Seller: EVEREN Securities,Inc. 370 Seventeenth Street-Suite 3150 Denver,CO 80202 In accordance with the terms of the Installment Purchase Agreement dated August 10, 1998 (the "Agreement") between EVEREN Securities, Inc. ("Seller"), and the undersigned("Buyer"),Buyer hereby certifies and represents to,and agrees with,Seller as follows: 1. The Equipment,as such term is defined in the Agreement,has been delivered and installed at the Equipment Location specified in Exhibit D-Description of the Equipment to the Agreement and accepted on the date indicated below. 2. Buyer has conducted such inspection and/or testing of the Equipment as it deems necessary and appropriate and hereby acknowledges that it accepts the Equipment for all purposes. 3. No Event of Default,as such term is defined in the Agreement,and no event which with notice or lapse of time,or both,would become an Event of Default, has occurred and is continuing at the date hereof. Buyer: Truckee Donner Public Utility District By: Title: Date: EXHIBIT G INSURANCE COVERAGE REQUIREMENTS TO: EVEREN Securities,Inc. 370 Seventeenth Street-Suite 3150 Denver,CO 80202 FROM: Truckee Donner Public Utility District 11570 Donner Pass Road Truckee,CA 96161 SUBJECT: INSURANCE COVERAGE REQUIREMENTS 1. In accordance with Article VIII,Section 8.03 of the Agreement,we have instructed the insurance agent named below(please fill in name,address and telephone number) to issue: a. All Risk Physical Damage Insurance on the Equipment evidenced by a Certificate of Insurance and Long Form Loss Payable Clause naming EVEREN Securities,Inc.as loss payee. Coverage Required: Full Replacement Value b. Public Liability Insurance evidence by a Certificate of Insurance naming EVEREN Securities,Inc.and/or its assigns as an Additional Insured. Minimum Coverage Required: $500,000.00 per person $500,000.00 aggregate bodily injury liability $100,000.00 property damage liability OR 2. Pursuant to Article VIII,Section 8.03 of the Agreement,we are self-insured for all risk,physical damage,and public liability and will provide proof of such self- insurance in letter form together with a copy of the statute authorizing this form of insurance. 3. Proof of insurance coverage will be provided prior to the time that the Equipment is delivered to us. Truckee Donner Public Utility District By: Dated: WgW1nKn,p„ceaw.d= Form 8038-G Information Return for Tax-Exempt Governmental Obligations 10- Under Internal Revenue Code section 149(e) OMB No. 1545.0720 (Rev. May 1995) ► See separate Instructions. Inrcrnal Rcvcnuc Service p Department of Treasury (Note: Use Form 8038-GC if the Issue rice is under$100,000. Reporting Authority if Amended Return, check here ► [J 1 Issuer's name 2 Issuer's employer identification number Truckee-Donner Public Utility District r 3 Number and street(or P.O.box if mail is not delivered to street address) Room/suite 4 Report number 11570 Donner Pass Road G19 - 5 City,town,or post office,state,and ZIP code 6 Date of issue Truckee, CA 96161 7 Name of issue 8 CUSIP number e of Issue (check applicable box(es) and enter the issue rice) 9 ❑ Education(attach schedule-see instructions) . . . . . . . . . . . . . . . 9 $ 10 ❑ Health and hospital (attach schedule-see Instructions). . . . . . . . . . . . . 10 11 ❑ Transportation . . . . . . . . . . . . . . . . . . . . . . . . . . 11 12 ❑ Public safety. . . . . . . . . . . . . . . . . . . . . . . . . . . 12 13 ❑ Environment (including sewage bonds) . . . . . . . . . . . . . . . . . . 13. . . . . . . . 14 ❑ Housing . . . . . . . . . . . . . . . . . . . 14 15 91 Utilities . . . . . . . . . . . . . . . . . . . 15 0 32. 50 16 ❑ Other. Describe (see instructions) ► 16 17 If obligations are tax or other revenue anticipation bonds, check box► ❑ 18 If obli ations are in the form of a lease or installment sale,check box► ❑ Descri lion of Obli ations Maturitya)date Interestb)rate Issue price Stated redemption Weitghted Yield Net interest rice at maturityaverse maturity cost 19 Final maturity. % 20 Entire issue 606,032. ears % % Uses of Proceeds of Bond Issue Cmcluding underwriters' discount 21 Proceeds used for accrued Interest , , , , , , , , , , , , , , , , , , , , 21 22 Issue price of entire issue (enter amount from line 20. column(c)) . . . . . . . 22 23 Proceeds used for bond issuance costs(Including underwriters'discount) 23 24 Proceeds used for credit enhancement . . . . . . . . , , 24 25 Proceeds allocated to reasonably required reserve or replacement fund 25 26 Proceeds used.to currently refund prior issues . . . . . . . . 26 27 Proceeds used to advance refund prior issues . . . . . . . . . 27 28 Total (add lines 23 through 27). . . . . . . . . . . . . . . . 28 29 Nonrefunding proceeds of the Issue (subtract line 28 from line 22 and enter amount here). 29 Description of Refunded Bonds Com lete this part only for refunding bonds.) 30 Enter the remaining weighted average maturity of the bonds to be currently refunded . . . ► years 31 Enter the remaining weighted average maturity of the bonds to be advance refunded . . . ► years 32 Enter the last date on which the refunded bonds will be called . , ► 33 Enter the date(s) the refunded bonds were issued ► Miscellaneous 34 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) . . . 34 35 Enter the amount of the bonds designated by the issuer under section 265(b)(3)(B)(ijpll)(small issuer exception) 35 36a Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract(see instructions) 36a b Enter the final maturity date of the guaranteed investment contract . ► 37 Pooled financings: a Proceeds of this issue that are to be used to make loans to other governmental units 37a b If this issue is a loan made from the proceeds of another tax-exempt issue, check box ► ❑ and enter the name of the issuer► and the date of the issue ► 38 If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box . . . ► ❑ 39 If the issuer has identified a hedge, check box . ► ❑ Under penalties of perjury.I declare that I have examined this return and accompanying schedules and statements,and to the best of my knowledge and belief.they are true,correct.and complete. Please Sign . Here ' Signature of issuer's authorized representative Date 'Type or pint name and title For Paperwork Reduction Act Notice,see page 1 of the Instructions. Cat.No.63773S Farm 8038-G (Rev.5.95) © Printed on recyded paper This FINANCING STATEMENT is presented for filing and will remain effective with certain exceptions for a period of five years from the date of filing pursuant to section 9403 of the California Uniform Commercial Code. 1. DEBTOR (LAST NAME FIRST—IF AN INDIVIDUAL) IA. SOCIAL SECURITY OR FEDERAL TAX NO. - Truckee-Donner Public Utility District ,. MAILING ADDRESS 1 C. CITY.STATE 1 D. ZIP CODE 11570 Donner Pass Road Truckee, CA 96161 2. ADDITIONAL DEBTOR (1F ANY) (LAST NAME FIRST--IF AN INDIVIDUAL) A. SOCIAL SECURITY OR FEDERAL TAX NO. 29. MAILING ADDRESS 2C. CITY.STATE 2D. ZIP COOS 3. DEBTOR'S TRADE NAMES OR STYLES (IF ANY) 3A. FEDERAL TAX NUMBER 4. SECURED PARTY 4A. SOCIAL SECURITY NO..FEDERAL TAX NO. NAME EVEREN Securities, Inc. OR BANK TRANSIT AND A.B.A.NO. MAILING ADDRESS 370 Seventeenth Street - Suite 3150 fj CITY Denver STATE CO ZIP CODE 80202 5. ASSIGNEE OF SECURED PARTY (1F ANY) 5A. SOCIAL SECURITY NO..FEDERAL TAX NO. NAME OR SANK TRANSIT AND A.B.A.NO. MAILING ADDRESS CITY STATE ZIP CODE 6. This FINANCING STATEMENT covers the following types or items of property (include description of real property on which located and owner of record when required by instruction 4). Five (5) substation power transformers single phase 5 MVA, 60-7.2/12.47kz 7. CHECK © 1 7B. DEBTOR(S) SIGNATURE NOT REQUIRED IN ACCORDANCE WITH 17A. PRODI)CTS OF COLLATERAL INSTRUCTION S(a) ITEM: IF APPLICABLE I ARE ALSO COVERED ❑(1) (2) a(3) _](4) 8. CHECK X` I a IF APPLICABLE ( DEBTOR IS A"TRANSMITTING UTILITY* IN ACCORDANCE WITH UGC J 9f05 (1) (n) 1 1 9. DATES C 10. THIS SPACE FOR USE OF FILING OFFICER NDIIGEFIR)MBER AFLNOFCE SIGNATURES) OF DEBTORS) E 1 TYPE OR PRINT NAMES)OF DEBTORS) 2 3 SIGNATURE(S) OF SECURED PARTY(IES) 4 5 TYPE OR PRINT NAME(S) OF SECURED PARTY(IES) 6 11.Return copy to: 7 ,,„NAME F e MDRESS CITY 9 STATE I 0 ZIP CODE L FORM UCC-1— Approved by the Secretary of State