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CITY OF SAN BERNARDINO - REQUEST FOR COUNf1RffiTff~ L
Subject: Authorization for City to participate in a
pooled tax and revenue anticipation note
(TRAN) financing program for cash flow
for FY 2009/10
From: Barbara Pachon,
Director of Finance
Dept: Finance
Date: April 20, 2009
Synopsis of Previous Council action:
6/6/94 -
6/5/95 -
5/20/96 -
6/2197 -
6/1/98 -
5/17/99-
5/1/00-
4/16/01-
4/15/04-
5/02/05-
6/05/06 -
5/08/07 -
Resolution #94-131 adopted City participation in TRAN program.
Resolution #95-177 adopted City participation in TRAN program.
Resolution #96-112 adopted City participation in TRAN program.
Resolution #97-165 adopted City participation in TRAN program.
Resolution #98-129 adopted City participation in TRAN program.
Resolntion #99-89 adopted City participation in TRAN program.
Resolution #00-98 adopted City participation in TRAN program.
Resolution #01-78 adopted City participation in TRAN program.
Resolution #04-112 adopted City participation in TRAN program.
Resolution #05-105 adopted City participation in TRAN program.
Resolution #06-170 adopted City participation in TRAN program.
Resolution #07-136 adopted City participation in TRAN program.
Recommended motion:
Adopt Resolution
& {at~cu{/
Signature
Contact person:
Supporting data attached:
Barbara Pachon. Director of Finance
ext. 5242
Phone:
Yes
Ward:
FUNDING REQUIREMENTS: Amount: Estimated net cost to Citv - $117.800 to General Fund FY 2009-10
Council Notes:
Source: (Acct. No.) 001-092-5802 (Interest Expense)
(Acct. Descriotion)
Finance:
g50 2oevl. C;'<;
Agenda Item No. /8
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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
Subiect
Authorization for City to participate in a pooled tax and revenue anticipation note (TRAN)
financing program for cash flow for FY 2009/10.
Backeround
The League of California Cities, along with the California State Association of Counties, has
developed a program that allows local governments to borrow funds and issue notes to
provide monies for anticipated cash flow deficits. This form of short-term borrowing is
known as a "Tax Revenue Anticipation Note" or a TRAN. Tax-exempt TRANs must follow
rules issued by the Internal Revenue Service to retain their tax-exempt status. The TRAN
program is being offered through the California Statewide Community Development
Authority (CSCDA), a joint powers authority established to assist California communities
with financing programs. The City of San Bernardino participated in this program for eleven
years between 1994 through 2007. For the last year we participated (2007/2008), the City
issued $10 million in TRANs in the program offered.
TRANs are issued by local governments to finance short-term cash flow deficits that occur
due to the irregular and intermittent receipt of certain taxes and/or revenues. As an example,
property tax and related revenues are typically distributed to cities only a few times during the
year. This source of revenue generates over $30 million per year in General Fund revenues
for the City of San Bernardino. These payments would typically be received in four payments
towards the second half of the fiscal year. However, the City's expenditures are typically
constant every month throughout the year and the delay in receiving property tax and related
revenue creates a cash flow shortfall in the General Fund in the beginning months of the fiscal
year.
In FY 2008-2009 the City's cash balance, at its lowest level (November and December), was
only enough to cover approximately one payroll. If the economic conditions stay the same or
continue to deteriorate in FY 2009-2010, Finance and the City Treasurer fear that the City's
cash flow, without the proposed TRAN, will not be sufficient to cover all of the City's
operating costs (including payroll) in a timely manner in FY 2009-2010. Because the City's
lowest cash flow levels are in November and December, it is conceivable (worst case
scenario) that without a TRAN, projects and/or invoices might have to be delayed until later
months when cash is available. The issuance of a TRAN will provide a source of funds to
cover these periodic cash flow deficits.
In past years, TRAN borrowing rates were typically anywhere from I to 2 percentage points
below available investment rates and the difference between the borrowing rates and the
reinvestment rate (arbitrage) could be retained by the local government, provided the TRAN is
issued in accordance with federal regulations. In the current environment, there may not be an
opportunity for arbitrage because the reinvestment rate may be very close to the borrowing
rate plus costs of issuance, and because it is expected that most of this cash will be spent
rather than being invested. However, participation in the TRAN program provides a
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necessary cash flow that will be needed to finance City operations at a relatively low
borrowing rate. If this cash flow is not made available through the TRAN, this cash will need
to be borrowed from other City funds, thus reducing the investment income earned by those
funds. Most recent data from the City Treasurer's office indicates that for the fiscal year-to-
date through February 28, 2009, the effective rate ofreturn on investments averages 3.75%.
Another change this year is that there will be no insurance coverage on the issuance. In lieu of
insurance, the issuers have reached an agreement with US Bank who will provide a letter of
credit to replace part of the insurance (credit enhancement). The estimated cost for this is
$10,000 to $32,000 depending upon whether or not the sponsor of the program, the California
Statewide Communities Development Authority (CSCDA), is able to obtain federal T ARP
(Troubled Asset Relief Program) funds. CSCDA has a proposal into the Treasury Department
for TARP support, which is a portion of the federal stimulus funds available for banking and
lending institutions.
Financial Impact
For the TRAN, at an estimated size based on cash flow shortages of $1 6,000,000 (we will ask
for capacity up to $20,000,000, but estimates are based on $16,000,000), the estimated net
expenses are as follows:
Interest earnings on pledged amounts
Interest costs at .60%
Credit Enhancement Costs (up to amount)
Costs ofIssuance, etc (based on ply est. of .21 %)
Estimated Net Cost
$ 43,800
$(96,000)
$(32,000)
$(33,600)
$(117,800)
The proposed cash flow TRAN would be a one-year obligation issued July 1, 2009 with a
mandatory 50% repayment due in January and 50% repayment due in May. This year the
repayments must be paid to the Trustee, who will hold the funds on behalf of the City and the
interest earned on the held amounts will accrue to the benefit of the City. The actual
repayment of the bonds by the Trustee will be due on or about June 30, 2010.
The City Treasurer has reviewed this financing program and concurs with the City's
participation for 2009/10, even though there is an estimated cost to the City's General Fund of
$117,800. Because the expected net cost of the TRAN is approximately .7% to 1.00%, it is
estimated that issuance of the TRAN will prevent other City funds from losing investment
earnings of approximately 3.75% as discussed earlier in the report. The actual TRANs issued
will be computed on projected cash flows and limited by federal tax law.
Recommendation
Staff recommends that the Mayor and City Council adopt the attached resolution authorizing
the issuance of Tax and Revenue Anticipation Note (TRAN) in an amount not to exceed
$20,000,000. The resolution also authorizes various financing documentation including the
attached purchase agreement. The resolution further authorizes the City to continue as a
member of the California Statewide Community Development Authority which is required for
participation in this TRAN.
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(C(Q)[Pl[
CITY OF SAN BERNARDINO
LOCAL AGENCY RESOLUTION
NUMBER
RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-20]0 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
WHEREAS, local agencies are authorized by Section 53850 to 53858, both
inclusive, of the Government Code of the State of California (the "Act") (being Article 7.6,
Chapter 4, Part I, Division 2, Title 5 of the Government Code) to borrow money by the
issuance of temporary notes;
WHEREAS, the legislative body (the "Legislative Body") of the local agency
specified in Section 21 hereof (the "Local Agency") has determined that a sum (the "Principal
Amount"), not to exceed the Maximum Amount of Borrowing specified in Section 21 hereof,
which Principal Amount is to be confirmed and set in the Pricing Confirmation (as defined in
Section 4 hereof), is needed for the requirements of the Local Agency, to satisfy obligations of
the Local Agency, and that it is necessary that said Principal Amount be borrowed for such
purpose at this time by the issuance of a note or notes therefore in anticipation of the receipt of
taxes, income, revenue, cash receipts and other moneys to be received by the Local Agency for
the general. fund of the Local Agency attributable to its fiscal year ending June 30, 2010
("Repayment Fiscal Year");
WHEREAS, the Local Agency hereby determines to borrow, for the purposes
set forth above, the Principal Amount by the issuance of the Note, as hereinafter defined;
WHEREAS, it appears, and this Legislative Body hereby finds and determines,
that the Principal Amount, when added to the interest payable thereon, does not exceed eighty-
five percent (85%) of the estimated amount of the uncollected taxes, income, revenue
(including, but not limited to, revenue from the state and federal governments), cash receipts
and other moneys of the Local Agency attributable to the Repayment Fiscal Year, and available
for the payment of the principal of the Note and the interest thereon;
WHEREAS, no money has heretofore been borrowed by or on behalf of the
Local Agency through the issuance of tax and revenue anticipation notes or temporary notes in
anticipation of the receipt of, or payable from or secured by, taxes, income, revenue, cash
receipts or other moneys for the Repayment Fiscal Year;
WHEREAS, pursuant to Section 53856 of the Act, certain moneys which will
be received by the Local Agency during and attributable to the Repayment Fiscal Year can be
pledged for the payment of the principal of the Note and the interest thereon (as hereinafter
provided);
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPA TION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGR<\M
WHEREAS, the Local Agency has determined that it is in the best interests of
the Local Agency to participate in the California Communities Cash Flow Financing Program
(the "Program"), whereby participating local agencies (collectively, the "Issuers") will
simultaneously issue tax and revenue anticipation notes;
WHEREAS, the Local Agency desires to have its Note marketed together with
some or all of the notes issued by the Issuers participating in the Program;
WHEREAS, the California Statewide Communities Development Authority
(the "Authority") has sponsored the Program and, on behalf of the Issuers, has engaged the
underwriter appointed in Section 20 hereof (the "Underwriter"), for the purpose of structuring
one or more pools of notes or series of note participations (referred to herein as the "Note
Participations", the "Series" and/or the "Series of Note Participations") distinguished by
whether and what type(s) of Credit Instrument (as hereinafter defined) secures notes that are
part of each Series, by the principal amounts of the notes assigned to the Series, by whether
interest on the Series of Note Participations is a fixed rate of interest or a variable rate of
interest swapped to a fixed rate, by whether interest on the Series of Note Participations is
includable in gross income for federal income tax purposes, or by other factors, all of which the
Local Agency hereby authorizes the Underwriter to determine;
WHEREAS, the Program requires the Issuers participating in any particular
Series to deposit their tax and revenue anticipation notes with a trustee, pursuant to a trust
agreement (the "Trust Agreement") among such Issuers, the Local Agency, the Authority and
Wells Fargo Bank, National Association, as trustee (the "Trustee");
WHEREAS, the Program requires the Trustee, pursuant to the Trust
Agreement, to execute and deliver the Note Participations evidencing and representing
proportionate, undivided interests in the payments of principal of and interest on the notes that
are part of such Series;
\VHEREAS, the Local Agency desires to have the Trustee execute and deliver a
Series of Note Participations which evidence and represent interests of the Owners, as defined
in the Trust Agreement, thereof in the Note and the Notes issued by other Issuers in such
Series;
WHEREAS. as additional security for the Owners of the Note Participations, all
or a portion of the payments by all of the Issuers of their respective notes mayor may not be
secured either by an irrevocable letter (or letters) of credit or policy (or policies) of insurance or
other credit instrument (or instruments) (collectively, the "Credit Instrument") issued by the
credit provider or credit providers designated in the Trust Agreement, as finally executed
(collectively, the "Credit Provider"), which may be issued pursuant to a credit agreement or
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40929-605 [..AO/l.AO
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPA TION 1:'01 THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGR.\.i\I
agreements or commitment letter or letters designated in the Trust Agreement (collectively, the
"Credit Agreement") between the Issuers and the respective Credit Provider;
WHEREAS, the net proceeds of the Note may be invested by the Local Agency
in Permitted Investments (as defined in the Trust Agreement) or in any other investment
permitted by the laws of the State of California, as now in effect and as hereafter amended,
modified or supplemented from time to time;
WHEREAS, the Program requires that each participating Issuer approve the
Trust Agreement and the alternative Credit Instruments, if any, in substantially the forms
presented to the Legislative Body, or, in the case of the Credit Instruments, if any, if not
presented, in a form which complies with such requirements and standards as may be
determined by the Legislative Body, with the final form and type of Credit Instrument and
corresponding Credit Agreement, if any, determined upon execution of the Pricing
Confirmation by the Authorized Representative;
WHEREAS, pursuant to the Program each participating Issuer will be
responsible for its share of (a) the fees of the Trustee and the costs of issuing the applicable
Series of Note Participations, and (b), if applicable, the fees of the Credit Provider, the Issuer's
allocable share of all Predefault Obligations and the Issuer's Reimbursement Obligations, if
any (each as defined in the Trust Agreement);
WHEREAS, pursuant to the Program, the Note and the Notes issued by other
Issuers participating in the same Series (all as evidenced and represented by a Series of Note
Participations) will be offered for sale through negotiation with the Underwriter pursuant to the
terms and provisions of a purchase agreement, which shall be in substantially the same form as
the purchase agreement presented to this meeting (the "Purchase Agreement");
WHEREAS, the Trust Agreement provides, among other things, that for the
benefit of Owners of Note Participations and the Credit Provider, if any, the Local Agency
shall provide notices of the occurrence of certain enumerated events, if deemed by the Local
Agency to be material.
WHEREAS, the Local Agency has deternlined that it may be desirable to
provide for the issuance of an additional parity note (the "Parity Note") during the Repayment
Fiscal Year, the principal and interest on which are secured by Pledged Revenues, hereinafter
defined, on a parity with the Note.
WHEREAS, the Local Agency has detennined that, in order to reduce interest
costs, it may be desirable to enter into one or more interest rate swaps; and
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
WHEREAS, it is 'necessary to engage the services of certain professionals to
assist the Local Agency in its participation in the Program;
NOW, THEREFORE, this Legislative Body hereby finds, determines, declares
and resolves as follows:
Section I. Recitals. All the above recitals are true and correct.
Section 2. Authorization of Issuance. This Legislative Body hereby
detemlines to borrow solely for the purpose of anticipating taxes, income, revenue, cash
receipts and other moneys to be received by the Local Agency for the general fund of the Local
Agency attributable to the Repayment Fiscal Year, by the issuance of a note or notes, pursuant
to the provisions of the Act, designated the Local Agency's "2009 Tax and Revenue
Anticipation Note," with an appropriate series designation if more than one note is issued
(collectively, the "Note"), to be issued in the form of a fully registered note or notes in the
Principal Amount thereof, to be dated the date of its delivery to the initial purchaser thereof, to
mature (without option of prior redemption) not more than 13 months thereafter on a date
indicated on the face thereof and determined in the Pricing Confirmation (the "Maturity Date"),
and to bear interest, payable on its Maturity Date (and if the Maturity Date is more than 12
months from the date of issuance, payable on the interim interest payment date set forth in the
Pricing Confirmation) and computed upon the basis of a 360-day year consisting of twelve
30-day months, or a 365- or 366-day year, as the case may be, and actual days elapsed, at a rate
or rates, if more than one Note is issued, not to exceed 12% per annum as determined in the
Pricing Confirmation and indicated on the face of the Note (the "Note Rate"). If a Credit
Instrument secures in whole or in part the Note or the Note as evidenced by the Series of Note
Participations and all principal of and interest on the Note is not paid in full at maturity or if
payment of principal and/or interest on the Note is paid (in whole or in part) by a draw under,
payment by or claim upon a Credit Instrument which draw or claim is not fully reimbursed on
such date, such Note shall become a Defaulted Note (as defined in the Trust Agreement), and
the unpaid portion thereof (including the interest component, if applicable) thereof (or the
portion (including the interest component, if applicable) thereof with respect to which a Credit
Instrument applies for which reimbursement on a draw, payment or claim has not been fully
made) shall be deemed outstanding and shall continue to bear interest thereafter until paid at
the Default Rate (as defined in the Trust Agreement). If the Note as evidenced and represented
by the Series of Note Participations is unsecured in whole or in part and the Note is not fully
paid at maturity, the unpaid portion thereof (or the portion thereof to which no Credit
Instrument applies which is unpaid) shall be deemcd outstanding and shall continue to bear
interest thereafter until paid at the Default Rate. In each case set forth in the preceding two
sentences, the obligation of the Local Agency with respect to such Defaulted Note or unpaid
Note shall not be a debt or liability of the Local Agency prohibited by Article XVI, Section 18
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
of the California Constitution, and the Local Agency shall not be liable thereon except to the
extent of any available revenues attributable to the Repayment Fiscal Year, as provided in
Section 8 hereof. The percentage of the Note as evidenced and represented by the Series of
Note Participations to which a Credit Instrument, if any, applies (the "Secured Percentage")
shall be equal to the amount of the Credit Instrument divided by the aggregate amount of
unpaid principal of and interest on notes (or portions thereof) of all Issuers of Notes that are
part of such Series of Note Participations, expressed as a percentage (but not greater than
100%) as of the maturity date. Both the principal of and interest on the Note shall be payable
in lawful money of the United States of America.
The Note shall be issued in conjunction with the note or notes of one or more
other Issuers as part of the Program and within the meaning of Section 53853 of the Act.
Anything in this Resolution to the contrary notwithstanding, the Pricing
Confirmation (defined below) may specify that a portion of the authorized Principal Amount of
the Note shall be issued as a taxable Note the interest on which is includable in the gross
income of the holder thereof for federal income tax purposes (a "Taxable Note"). In such
event, the Taxable Note shall be issued with an appropriate series designation and other terms
reflecting such taxability of interest income, including without limitation, a taxable Note Rate
and a taxable Default Rate; the term Note, and other terms as appropriate, shall be deemed to
include or refer to such Taxable Note; and the agreements. covenants and provisions set forth in
this Resolution to be performed by or on behalf of the Local Agency shall be for the equal and
proportionate benefit, security and protection of the holder of any Note without preference,
priority or distinction as to security or otherwise of any Note over another Note.
Section 3, Form of Note, The Note shall be issued in fully registered form
without coupons and shall be substantially in the form and substance set forth in Exhibit A, as
attached hereto and by reference incorporated herein, the blanks in said form to be filled in with
appropriate words and figures as determined at closing.
Section 4, Sale of Note; Delel!ation, The Note Participations (which evidence
an interest in the Note which shall be delivered to the Trustee) shall be sold to the Underwriter
pursuant to the terms and provisions of the Purchase Agreement. The fornl of the Purchase
Agreement, including the form of the Pricing Confirmation set forth as an exhibit thereto (the
"Pricing Confirmation"), presented to this meeting is hereby approved. The authorized
representatives set forth in Section 21 hereof (each, the "Authorized Representative") are each
hereby authorized and directed to execute and deliver the Purchase Agreement in substantially
said form, with such changes thereto as such Authorized Representative shall approve, such
approval to be conclusively evidenced by his or her execution and delivery thereof; provided,
however, that the Note Rate shall not exceed 12% per annum, and that the Local Agency's pro
rata share of Underwriter's discount on the Note, when added to the Local Agency's share of
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
. THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
the costs of issuance of the Note Participations, shall not exceed 1.0% of the Principal Amount
of the Note and the Principal Amount shall not exceed the Maximum Amount of Borrowing.
Delivery of an executed copy of the Pricing Confirmation by fax or telecopy shall bc deemed
effective upon execution and delivery for all purposes.
Section 5. Prol!ram Approval. The Note shall be combined with notes of
other Issuers into a Series as set forth in the Preliminary Official Statement, hereinafter
mentioned, and shall be sold simultaneously with such other notes of that Series secured by the
Credit Instrument (if any) referred to in the Pricing Confirmation, and shall be evidenced and
represented by the Note Participations which shall evidence and represent proportionate,
undivided interests in the Note in the proportion that the face amount of the Note bears to the
total aggregate face amount of the Note and the notes issued by other Issuers which the Series
of Note Participations represent. Such Note Participations may be delivered in book-entry
form.
The forms of Trust Agreement and alternative general types and forms of Credit
Agreements, if any, presented to this meeting are hereby approved, and the Authorized
Representative is hereby authorized and directed to execute and deliver the Trust Agreement
and a Credit Agreement, if applicable, which shall be identified in the Pricing Confirmation, in
substantially one or more of said forms (a substantially final form of Credit Agreement to be
delivered to the Authorized Representative following the execution by the Authorized
Representative of the Pricing Confirmation), with such changes therein as said officer shall
require or approve, such approval of this Legislative Body and such officer to be conclusively
evidenced by the execution of the Trust Agreement and the Credit Agreement, if any. A
description of this undertaking is set forth in the Preliminary Official Statement and will also be
set forth in the Final Official Statement. The Authorized Representative is hereby authorized
and directed to comply with and carry out all of the provisions of the Trust Agreement with
respect to continuing disclosure; provided. however, that failure of the Local Agency to comply
with the Continuing Disclosure Agreement, as defined in Article 11 of the Trust Agreement,
shall not be considered an Event of Default hereunder. Any Credit Agreement identified in the
Pricing Confirmation but not at this time before the Legislative Body shall include reasonable
and customary terms and provisions relating to fees, increased costs of the Credit Provider
payable by the Local Agency, negative and affimlative covenants of the Local Agency and
events of default. The form of the Preliminary Official Statement presented to this meeting is
hereby approved, and the Underwriter is hereby authorized and directed to cause to be mailed
to prospective bidders the Preliminary Official Statement in connection with the offering and
sale of the Note Participations.
Anyone of the Authorized Representatives of the Local Agency is hereby
authorized and directed to provide the Underwriter with such information relating to the Local
Agency as they shall reasonably request for inclusion in the Preliminary Official Statement and
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
Official Statement. Upon inclusion of the information relating to the Local Agency therein, the
Preliminary Official Statement is, except for certain omissions permitted by Rule l5c2-12 of
the Securities Exchange Act of 1934, as amended (the "Rule"), hereby deemed final within
themeaning of the Rule; provided that no representation is made as to the information contained
in the Preliminary Official Statement relating to the other Issuers or any Credit Provider. If, at
any time prior to the end of the underwriting period, as defined in the Rule, any event occurs as
a result of which the information contained in the Preliminary Official Statement relating to the
Local Agency might include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading, the Local Agency shall promptly notify the Underwriter. The
Authority is hereby authorized and directed, at or after the time of the sale of any Series of
Note Participations, for and in the name and on behalf of the Local Agency, to execute a final
Official Statement in substantially the form of the Preliminary Official Statement presented to
this meeting, with such additions thereto or changes therein as the Authority may approve, such
approval to be conclusively evidenced by the execution and delivery thereof.
The Trustee is authorized and directed to execute Note Participations on behalf
of the Local Agency pursuant to the terms and conditions set forth in the Trust Agreement, in
the aggregate principal amount specified in the Trust Agreement, and substantially in the form
and otherwise containing the provisions set forth in the form of the Note Participations
contained in the Trust Agreement. When so executed, the Note Participations shall be
delivered by the Trustee to the Underwriter upon payment of the purchase price thereof,
pursuant to the terms of the Trust Agreement.
Subject to Section 8 hereof, the Local Agency hereby agrees that if the Note as
evidenced and represented by the Series of Note Participations shall become a Defaulted Note,
the unpaid portion (including the interest component, if applicable) thereof or the portion
(including the interest component, if applicable) to which a Credit Instrument applies for which
full reimbursement on a draw, payment or claim has not been made by the Maturity Date shall
be deemed outstanding and shall not be deemed to be paid until (i) any Credit Provider
providing a Credit Instrument with respect to the Series of Note Participations, and therefore
with respect to all or a portion of the Local Agency's Note, has been reimbursed for any
drawings, payments or claims made under or ITom the Credit Instrument with respect to the
Note, including interest accrued thereon, as provided therein and in the applicable Credit
Agreement, and (ii) the holders of the Series of the Note Participations which evidence and
represent the Note are paid the full principal amount represented by the unsecured portion of
the Note plus interest accrued thereon (calculated at the Default Rate) to the date of deposit of
such aggregate required amount with the Trustee. For purposes of clause (ii) of the preceding
sentence, holders of the Series of Note Participations will be deemed to have rcceived such
principal amount upon deposit of such moneys with the Trustee.
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
The Local Agency agrees to payor cause to be paid, in addition to the amounts
payable under the Note, any fees or expenses of the Trustee and, to the extent permitted by law,
if the Local Agency's Note as evidenced and represented by the Series of Note Participations
issecured in whole or in part by a Credit Instrument, any Predefault Obligations and
Reimbursement Obligations (to the extent not payable under the Note), (i) arising out of an
"Event of Default" hereunder (or pursuant to Section 7 hereof) or (ii) arising out of any other
event (other than an event arising solely as a result of or otherwise attributable to a default by
any other Issuer). In the case described in (ii) above with respect to Predefault Obligations, the
Local Agency shall owe only the percentage of such fees, expenses and Predefault Obligations
equal to the ratio of the principal amount of its Note over the aggregate principal amounts of
all notes, including the Note, of the Series of which the Note is a part, at the time of original
issuance of such Series. Such additional amounts will be paid by the Local Agency within
twenty-five (25) days ofreceipt by the Local Agency ofa bill therefor from the Trustee.
Section 6. No Joint Oblil!:ation; Owners' Ril!:hts. The Note shall be marketed
and sold simultaneously with the notes of other Issuers and shall be aggregated and combined
with notes of other Issuers participating in the Program into a Series of Note Participations
evidencing and representing an interest in several, and not joint, obligations of each Issuer. The
obligation of the Local Agency to Owners is a several and not a joint obligation and is strictly
limited to the Local Agency's repayment obligation under this Resolution and the Note, as
evidenced and represented by such Series of Note Participations.
Owners of Note Participations, to the extent of their interest in the Note, and the
Credit Provider, if any, shall be treated as owners of the Note and shall be entitled to all the
rights and security thereof in accordance with the Trust Agreement, including the right to
enforce the obligations and covenants contained in this Resolution and the Note. The Local
Agency hereby recognizes the right of the Owners and the Credit Provider, if any, acting
directly or through the Trustee to enforce the obligations and covenants contained in the Note,
this Resolution and the Trust Agreement. The Local Agency shall be directly obligated to each
Owner for the principal and interest payments on the Note evidenced and represented by the
Note Participations without any right of counterclaim or offset arising out of any act or failure
to act on the part of the Trustee.
Section 7. Disposition of Proceeds of Note, The moneys received from the
sale of the Note allocable to the Local Agency's share of the costs of issuance (which shall
include any issuance fees in connection with a Credit Instrument applicable to the Note, if any)
shall be deposited in the Costs of Issuance Fund held and invested by the Trustee under the
Trust Agreement and expended on costs of issuance as provided in the Trust Agreement. The
moneys received from the sale ofthe Note (net of the Local Agency's share of the costs of
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
issuance) shall be deposited in the Local Agency's Proceeds Subaccount within the Proceeds
Fund hereby authorized to be created pursuant to, and held and invested by the Trustee under,
the Trust Agreement for the Local Agency and said moneys may be used and expended by the
Local Agency for any purpose for which it is authorized to expend funds upon requisition from
the Proceeds Subaccount as specified in the Trust Agreement Amounts in the Proceeds
Subaccount are hereby pledged to the payment of the Note.
The Trustee will not create subaccounts within the Proceeds Fund, but will keep
records to account separately for proceeds of the Note Participations allocable to the Local
Agency's Note on deposit in the Proceeds Fund which shall constitute the Local Agency's
Proceeds Subaccount.
Section 8. Source of Pavment. The principal amount of the Note, together
with the interest thereon, shall be payable from taxes, income, revenue (including, but not
limited to, revenue from the state and federal governments), cash receipts and other moneys
which are received or held by the Local Agency for the general fund of the Local Agency and
are attributable to the Repayment Fiscal Year and which are available for payment thereof. As
security for the payment of the principal of and interest on the Note, the Local Agency hereby
pledges all Unrestricted Revenues (as hereinafter provided, the "Pledged Revenues") which are
received or held by the Local Agency for the general fund of the Local Agency and are
attributable to the Repayment Fiscal Year, and the principal of the Note and the interest thereon
shall constitute a first lien and charge thereon and shall be payable from the first moneys
received by the Local Agency from such Pledged Revenues and, to the extent not so paid, shall
be paid from any other taxes, income, revenue. cash receipts and other moneys of the Local
Agency lawfully available therefore (all as provided for in Sections 53856 and 53857 of the
Act). The term "Unrestricted Revenues" shall mean all taxes. income, revenue (including, but
not limited to, revenue from the state and federal governrnents), cash receipts, and other
moneys, intended as receipts for the general fund of the Local Agency attributable to the
Repayment Fiscal Year and which are generally available for the payment of current expenses
and other obligations of the Local Agency. The holders of the Notes, Owners and Credit
Provider shall have a first lien and charge on such Unrestricted Revenues as herein provided
which are received or held by the Local Agency and are attributable to the Repayment Fiscal
Year.
In order to effect the pledge referenced in the preceding paragraph, the Local
Agency hereby agrees to the establishment and maintenance of a special account of the Local
Agency (the "Payment Account") by the Trustee as the responsible agent to maintain such an
account until the payment of the principal of the Note and the intcrest thereon, and the Local
Agency further agrees to cause to be deposited in the Payment Account the first amounts
received in the months specified in the Pricing Confirmation as Repayment Months (each
individual month a "Repayment Month" and collectively "Repayment Months") (and any
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATIOl': l':OTE
THEREFOR AND PARTICIPA TION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
amounts received thereafter attributable to Repayment Fiscal Year) until the amount on deposit
in the Payment Account. is equal in the respective Repayment Months identified in the Pricing
Confirmation to the percentage of the principal and interest due on the Note specified in the
Pricing Confirmation. Any such deposit may take into consideration anticipated investment
earnings on amounts deposited in an Investment Agreement, that is a Permitted Investment. as
defined in the Trust Agreement, through the Maturity Date. Transfers from the Payment
Account shall be made in accordance with the Trust Agreement.
Any Authorized Representative of the Local Agency is hereby authorized to
approve the determination of the Repayment Months and percentages of the principal and
interest due on the Note required to be on deposit in the Payment Account in each Repayment
Month, all as specified in the Pricing Confirmation, by executing and delivering the Pricing
Confirmation, such execution and delivery to be conclusive evidence of approval by this
Legislative Body and such Authorized Representative; provided, however, that the maximum
number of Repayment Months shall be six and the maximum amount of Pledged Revenues
required to be deposited in each Repayment Month shall not exceed fifty percent (50%) of the
aggregate principal and interest due on the Note. In the event on the day in each such
Repayment Month that a deposit to the Payment Account is required to be made, the Local
Agency has not received sufficient unrestricted revenues to permit the deposit into the Payment
Account of the full amount of Pledged Revenues to be deposited in the Payment Account from
said unrestricted revenues in said month, then the amount of any deficiency shall be satisfied
and made up from any other moneys of the Local Agency lawfully available for the payment of
the principal of the Note and the interest thereon, as and when such other moneys are received
or are otherwise legally available.
Any moneys placed in the Payment Account shall be for the benefit of (i) the
owner of the Note and (ii) (to the extent provided in the Trust Agreement) the Credit Provider,
if any. The moneys in the Payment Account shall be applied only for the purposes for which
the Payment Account is created until the principal of the Note and all interest thereon are paid
or until provision has been made for the payment of the principal of the Note at maturity with
interest to maturity (in accordance with the requirements for defeasance of the Note
Participations as set forth in the Trust Agreement) and (to the extent provided in the Trust
Agreement and, if applicable, the Credit Agreement) the pa)111ent of all Predefault Obligations
and Reimbursement Obligations owing to the Credit Provider.
The Local Agency hereby directs the Trustee to transfer on the Note Payment
Deposit Date (as defined in the Trust Agreement), any moneys in the Payment Account to the
Note Participation Payment Fund (as defined in the Trust Agreement). In the event that
moneys in the Payment Account are insufficient to pay the principal of and interest on the Note
in full when due, such moneys shall be applied in the following priority: first, to pay interest
on the Note; second, to pay principal of the Note; third, to reimburse the Credit Provider for
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
payment, if any, of interest with respect to the Note; fourth, to reimburse the Credit Provider
for payment, if any, of principal with respect to the Note; and fifth, to pay any Reimbursement
Obligations of the Local Agency and any of the Local Agency's pro rata share of Predefault
Obligations owing to the Credit Provider. Any moneys remaining in or accruing to the
Payment Account after the principal of the Note and the interest thereon and any Predefault
Obligations and Reimbursement Obligations, if applicable, have been paid, or provision for
such payment has been made, shall be transferred to the general fund of the Local Agency,
subject to any other disposition required by the Trust Agreement, or, if applicable, the Credit
Agreement. Nothing herein shall be deemed to relieve the Local Ageney from its obligation to
pay its Note in full on the Maturity Date.
Moneys in the Proceeds Subaccount and in the Payment Account shall be
invested by the Trustee pursuant to the Trust Agreement as directed by the Local Agency in
Permitted Investments as described in and under the terms of the Trust Agreement. Any such
investment by the Trustee shall be for the account and risk of the Local Agency, and the Local
Agency shall not be deemed to be relieved of any of its obligations with respect to the Note, the
Predefault Obligations or Reimbursement Obligations, if any, by reason of such investment of
the moneys in its Proceeds Subaccount or the Payment Account.
The Local Agency shall promptly file with the Trustee and the Credit Provider,
if any, such financial reports at the times and in the forms required by the Trust Agreement. At
the written request of the Credit Provider, if any, the Local Agency shall, within ten (10)
Business Days following the receipt of such written request, file such report or reports to
evidence the transfer to and deposit in the Payment Account required by this Section 8 and
provide such additional financial information as may be required by the Credit Provider, if any.
Anything herein to the contrary notwithstanding, the Local Agency may at any
time during the Repayment Fiscal Year issue a Parity Note, in an amount not to exceed
$20,000,000.00, secured by a first lien and charge on Pledged Revenues; provided that (i) such
Parity Note shall have the same Repayment Months as the Note, shall be payable as to principal
and interest in such Repayment Months in amounts corresponding on a pro rata basis to the
schedule of principal and interest payable in such Repayment Months on the Note and the
rating on such Parity Note (or related series of note participations if sold into a pool) shall not.
be less than the rating on the Series of Note Participations related to the Note and (ii) the Local
Agency shall have received the written consent of the Credit Provider, if any, to the issuance of
the Parity Note by the Local Agency. In the event that the Local Agency issues a Parity Note,
the Local Agency shall make appropriate deposits into the Payment Account with respect to
such Parity Note, and in such event, the Payment Account shall also be held for the benefit of
the holders of the Parity Note.
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
Section 9. Execution of Note. Anyone of the Authorized Representatives of
the Local Agency or any other officer designated by the Legislative Body shall be authorized to
execute the Note by manual or facsimile signature, and the Secretary or Clerk of the Legislative
Body of the Local Agency or any duly appointed assistant thereto shall be authorized to
countersign the Note by manual or facsimile signature. Said officers of the Local Agency are
hereby authorized to cause the blank spaces of the Note to be filled in as may be appropriate
pursuant to the Pricing Confirmation. Said officers are hereby authorized and directed to cause
the Trustee, as registrar and authenticating agent, to accept delivery of the Note pursuant to the
terms and conditions of the Purchase Agreement and Trust Agreement. In case any officer
whose signature shall appear on any Note shall cease to be such officer before the delivery of
such Note, such signature shall nevertheless be valid and sufficient for all purposes, the same as
if such officer had remained in office until delivery. The Note need not bear the seal of the
Local Agency, if any.
Section 10. Representations and Covenants of the Local A!!encv. The Local
Agency makes the following representations for the benefit of the holder of the note, the
owners of the Note Participations, the Underwriter and the Credit Provider, if any.
(A) The Local Agency is duly organized and existing under and by virtue of
the laws of the State of California and has all necessary power and authority (i) to adopt this
Resolution and perform its obligations thereunder, (ii) to enter into and perform its obligations
under the Purchase Agreement, and (iii) to issue the Note and perform its obligations
thereunder.
(B) Upon the issuance of the Note, the Local Agency shall have taken all
action required to be taken by it to authorize the issuance and delivery of the Note and the
performance of its obligations thereunder, and the Local Agency has full legal right, power and
authority to issue and deliver the Note.
(C) The issuance of the Note, the adoption of the Resolution and the
execution and delivery of the Purchase Agreement, Tmst Agreement and Credit Agreement, if
any, and compliance with the provisions hereof and thereof will not conflict with or violate any
law, administrative regulation, court decree, resolution, charter, by-laws or other agreement to
which the Local Agency is subject or by which it is hound.
(D) Except as may be required under blue sky or other securities laws of any
state or Section 3(a)(2) of the Securities Act of 1933, there is no consent, approval,
authorization or other order of, or filing with, or certification by, any regulatory authority
having jurisdiction over the Local Agency required for the issuance and sale of the Note or the
consummation by the Local Agency of the other transactions contemplated by this Resolution,
except those the Local Agency shall obtain to perform prior to or upon the issuance of the Note.
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALlFOR.l\TIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
(E) The Local Agency has (or will have prior to the issuance of the Note)
duly, regularly and properly adopted a preliminary budget for the Repayment Fiscal Year
setting forth expected revenues and expenditures and has complied with all statutory and
regulatory requirements with respect to the adoption of such budget. The Local Agency hereby
covenants that it shall (i) duly, regularly and properly prepare and adopt its final budget for the
Repayment Fiscal Year, (ii) provide to the Trustee, the Credit Provider, if any, and the
Underwriter, promptly upon adoption, copies of such final budget and of any subsequent
revisions, modifications or amendments thereto and (iii) comply with all applicable laws
pertaining to its budget.
(F) The sum of the principal amount of the Local Agency's Note plus the
interest payable thereon, on the date of its issuance, will not exceed fifty percent (50%) of the
estimated amounts of the Local Agency's uncollected taxes, income, revenue (including, but
not limited to, revenue from the state and federal governments), cash receipts, and other
moneys to be received by the Local Agency for the general fund of the Local Agency
attributable to the Repayment Fiscal Year all of which will be legally available to pay principal
of and interest on the Note.
(G) The Local Agency (i) has not defaulted within the past twenty (20) years,
and is not currently in default, on any debt obligation and (ii), to the best knowledge of the
Local Agency, has never defaulted on any debt obligation.
(H) The Local Agency's most recent audited financial statements present
fairly the financial condition of the Local Agency as of the date thereof and the results of
operation for the period covered thereby. Except as has been disclosed to the Underwriter and
the Credit Provider, if any, there has been no change in the financial condition of the Local
Agency since the date of such audited financial statements that will in the reasonable opinion of
the Local Agency materially impair its ability to perform its obligations under this Resolution
and the Note. The Local Agency agrees to furnish to the Underwriter, the Authority, the
Trustee and the Credit Provider, if any, promptly, from time to time. such inforn1ation
regarding the operations, financial condition and property of the Local Agency as such party
may reasonably request.
(I) There is no action, suit, proceeding. inquiry or investigation, at law or in
equity, before or by any court, arbitrator, governmental or other board. body or official,
pending or, to the best knowledge of the Local Agency, threatened against or affecting the
Local Agency questioning the validity of any proceeding taken or to be taken by the Local
Agency in connection with the Note, the Purchase Agreement, the Trust Agreement, the Credit
Agreement, if any, or this Resolution, or seeking to prohibit, restrain or enjoin the execution,
delivery or performance by the Local Agency of any of the foregoing, or wherein an
unfavorable decision, ruling or finding would have a materially adverse effect on the Local
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
Agency's financial condition or results of operations or on the ability of the Local Agency to
conduct its activities as presently conducted or as proposed or contemplated to be conducted, or
would materially adversely affect the validity or enforceability of, or the authority or ability of
the Local Agency to perform its obligations under, the Note, the Purchase Agreement, the Trust
Agreement, the Credit Agreement, if any, or this Resolution.
(J) Upon issuance of the Note and execution of the Purchase Contract, this
Resolution, the Purchase Contract and the Note will constitute legal, valid and binding
agreements of the Local Agency, enforceable in accordance with their respective terms, except
as such enforceability may be limited by bankruptcy or other laws affecting creditors' rights
generally, the application of equitable principles if equitable remedies are sought, the exercise
of judicial discretion in appropriate cases and the limitations on legal remedies against local
agencies, as applicable, in the State of California.
(K) The Local Agency and its appropriate officials have duly taken, or will
take, all proceedings necessary to be taken by them, if any, for the levy, receipt, collection and
enforcement of the Pledged Revenues in accordance with law for carrying out the provisions of
this Resolution and the Note.
(L) The Local Agency shall not incur any indebtedness secured by a pledge
of its Pledged Revenues unless such pledge is subordinate in all respects to the pledge of
Pledged Revenues hereunder.
(M) So long as the Credit Provider, if any, is not in payment default under the
Credit Instrument, the Local Agency hereby agrees to pay its pro rata share of all Predefault
Obligations and all Reimbursement Obligations attributable to the Local Agency in accordance
with provisions of the Credit Agreement, if any, and/or the Trust Agreement, as applicable.
Prior to the Maturity Date, moneys in the Local Agency's Payment Account and/or Payment
Subaccount shall not be used to make such payments. The Local Agency shall pay such
amounts promptly upon receipt of notice from the Credit Provider that such amounts are due to
it.
(N) So long as any Note Participations executed and delivered in connection
with the Notes are Outstanding, or any Predefault Obligation or Reimbursement Obligation is
outstanding, the Local Agency will not create or suffer to be created any pledge of or lien on
the Note other than the pledge and lien of the Trust Agreement.
(0) The information describing the Local Agency contained in the Official
Statement (excluding the statements and information pertaining to the Credit Provider and
information under the heading "UNDERWRITING" and in the Appendix entitled "BOOK-
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
ENTRY ONLY SYSTEM"), as of the time of delivery thereof to the Underwriter and at all
times subsequent thereto up to and including the Closing, will be true, complete, correct and
final in all material respects and will not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(P) The information contained in the Credit Questionnaire (including the
Cashflow Worksheet therein) (the "Credit Questionnaire") completed by the Local Agency and
submitted to the Authority and the Underwriter, will be at the time submitted and on the
Closing Date true and accurate.
Section 11. Tax Covenants. The Local Agency will not take any action or fail
to take any action if such action or failure to take such action would adversely affect the
exclusion from gross income of the interest payable on the Note under Section 103 of the
Internal Revenue Code of 1986 (the "Code"). Without limiting the generality of the foregoing,
the Local Agency will not make any use of the proceeds of the Note or any other funds of the
Local Agency which would cause the Note to be an "arbitrage bond" within the meaning of
Section 148 of the Code, a "private activity bond" within the meaning of Section 141(a) of the
Code, or an obligation the interest on which is subject to federal income taxation because it is
"federally guaranteed" as provided in Section 149(b) of the Code. The Local Agency, with
respect to the proceeds of the Note, will comply with all requirements of such sections of the
Code and all regulations of the United States Department of the Treasury issued or applicable
thereunder to the extent that such requirements are, at the time, applicable and in effect.
The Local Agency hereby (i) represents that the aggregate face amount of all
tax-exempt obligations (including any tax-exempt leases, but excluding private activity bonds),
issued and to be issued by the Local Agency during calendar year 2009, including the Note, is
not reasonably expected to exceed 55,000,000; or. in the alternative. (ii) covenants that the
Local Agency will take all legally permissible steps necessary to ensure that all of the gross
proceeds of the Note will be expended no later than the day that is six months after the date of
issuance of the Note so as to satisfy the requirements of Section 148(f)(4)(B) of the Code.
Notwithstanding any other provision of this Resolution to the contrary, upon the
Local Agency's failure to observe, or refusal to comply with, the covenants contained in this
Section II, no one other than the holders or former holders of the Note, the Owners or the
Tmstee on their behalf shall be entitled to exercise any right or remedy under this Resolution
on the basis of the Local Agency's failure to observe, or refusal to comply with, such
covenants.
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORJ'IIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
The covenants contained in this Section II shall survive the payment of the
Note.
The provisions of this Section II shall not apply to a Taxable Note.
Section 12. Events of Default and Remedies.
If any of the following events occur, it is hereby defined as and declared to be
and to constitute an "Event of Default":
(a) Failure by the Local Agency to make or cause to be made the
transfers and deposits to the Payment Account, or any other payment required to
be paid hereunder, including payment of principal and interest on the Note, on
or before the date on which such transfer, deposit or other payment is due and
payable;
(b) Failure by the Local Agency to observe and perform any
covenant, condition or agreement on its part to be observed or performed under
this Resolution, for a period of fifteen (15) days after written notice, specifying
such failure and requesting that it be remedied, is given to the Local Agency by
the Trustee or the Credit Provider, if applicable, unless the Trustee and the
Credit Provider shall agree in writing to an extension of such time prior to its
expiration;
(c) Any warranty, representation or other statement by or on behalf
of the Local Agency contained in this Resolution or the Purchase Agreement
(including the Pricing Confirmation) or in any requisition or any financial report
delivered by the Local Agency or in any instrument furnished in compliance
with or in reference to this Resolution or the Purchase Agreement or in
connection with the Note, is false or misleading in any material respect;
(d) A petition is filed against the Local Agency under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction, whether now or hereafter in
effect and is not dismissed within 30 days after such filing, but the Trustee shall
have the right to intervene in the proceedings prior to the expiration of such 30
days to protect its and the Owners' interests;
(e) The Local Agency files a petition in voluntary bankruptcy or
seeking relief under any provision of any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law of
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RESOLUTION AUTHORIZING AND APPROVING THE
BORROWING OF FUNDS FOR FISCAL YEAR 2009-2010; THE
ISSUANCE AND SALE OF A 2009-2010 TAX AND REVENUE
ANTICIPATION NOTE THEREFOR AND PARTICIPATION IN
THE CALIFORNIA COMMUNITIES CASH FLOW FINANCING
PROGRAM
any jurisdiction, whether now or hereafter in effect, or consents to the filing of
any petition against it under such law; or
(I) The Local Agency admits insolvency or bankruptcy or is
generally not paying its debts as such debts become due, or becomes insolvent
or bankrupt or makes an assignment for the benefit of creditors, or a custodian
(including without limitation a receiver, liquidator or trustee) of the Local
Agency or any of its property is appointed by court order or takes possession
thereof and such order remains in effect or such possession continues for more
than 30 days, but the Trustee shall have the right to intervene in the proceedings
prior to the expiration of such 30 days to protect its and the Owners' interests;
Whenever any Event of Default referred to in this Section 12 shall have
happened and be continuing, the Trustee shall, in addition to any other remedies provided
herein or by law or under the Trust Agreement, have the right, at its option without any further
demand or notice, to take one or any combination of the following remedial steps;
(a) Without declaring the Note to be immediately due and payable,
require the Local Agency to pay to the Trustee, as holder of the Note, an amount
equal to the principal of the Note and interest thereon to maturity, plus all other
amounts due hereunder, and upon notice to the Local Agency the same shall
become immediately due and payable by the Local Agency without further
notice or demand; and
(b) Take whatever other action at law or in equity (except for
acceleration of payment on the Note) which may appear necessary or desirable
to collect the amounts then due and thereafter to become due hereunder or to
enforce any other of its rights hereunder.
Notwithstanding the foregoing, if the Local Agency's Note is secured in whole
or in part by a Credit Instrument or if the Credit Provider is subrogated to rights under the
Local Agency's Note, as long as the Credit Provider is not in default of its payment obligations
under the Credit Instrument, the Credit Provider shall have the right to direct the remedies upon
any Event of Default hereunder, and the Credit Provider's prior consent shall be required to any
remedial action proposed to be taken by the Trustee hereunder.
If the Credit Provider is not reimbursed for any drawing, payment or claim, as
applicable, used to pay principal of and interest on the Note due to a default in payment on the
Note by the Local Agency, or if any principal of or interest on the Note remains unpaid after
the Maturity Date, the Note shall be a Defaulted Note, the unpaid portion (including the interest
component, if applicable) thereof or the portion (including the interest component, if
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGR.\l\I
applicable) to which a Credit Instrument applies for which reimbursement on a draw, payment
or claim has not been made shall be deemed outstanding and shall bear interest at the Default
Rate until the Local Agency's obligation on the Defaulted Note is paid in full or payment is
duly provided for, all subject to Section 8 hereof.
Section 13. Trustee. The Trustee is hereby appointed as paying agent, registrar
and authenticating agent for the Note. The Local Agency hereby directs and authorizes the
payment by the Trustee of the interest on and principal of the Note when such become due and
payable, from the Payment Account held by the Trustee in the name of the Local Agency in the
manner set forth herein. The Local Agency hereby covenants to deposit funds in such account
at the time and in the amount specified herein to provide sufficient moneys to pay the principal
of and interest on the Note on the day on which it matures. Payment of the Note shall be in
accordance with the terms of the Note and this Resolution.
The Local Agency hereby agrees to maintain as paying agent, registrar and
authenticating agent of the Note, the Trustee under the Trust Agreement.
Section 14. Approval of Actions. The aforementioned Authorized
Representatives of the Local Agency are hereby authorized and directed to execute the Note
and cause the Trustee to authenticate and accept delivery of the Note, pursuant to the terms and
conditions of this Resolution and the Trust Agreement. All actions heretofore taken by the
officers and agents of the Local Agency or this Legislative Body with respect to the sale and
issuance of the Note and participation in the Program are hereby approved, confirmed and
ratified, and the Authorized Representatives and agents of the Local Agency are hereby
authorized and directed, for and in the name and on behalf of the Local Agency, to do any and
all things and take any and all actions and execute any and all certificates, agreements and other
documents which they, or any of them, may deem necessary or advisable in orde, to
consummate the lawful issuance and delivery of the Note in accordance with, and related
transactions contemplated by, this Resolution. Each of the Authorized Representatives of the
Local Agency referred to in Section 21 hereof is hereby designated as an "Authorized Local
Agency Representative" under the Trust Agreement.
In the event that the Note or a portion thereof is secured by a Credit Instrument,
any Authorized Representative of the Local Agency is hereby authorized and directed to
provide the Credit Provider, with any and all information relating to the Local Agency as such
Credit Provider may reasonably request.
Section 15. Proceedinl!s Constitute Contract. The provisions of the Note and
of this Resolution shall constitute a contract between the Local Agency and the registered
owner of the Note and the Credit Provider, if any, and such provisions shall be enforceable by
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORJ"IIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
mandamus or any other appropriate suit, action or proceeding at law or in equity in any court of
competent jurisdiction, and shall be irrepealable. The Credit Provider, if any, is a third party
beneficiary of the provisions of this Resolution and the Note.
Section 16. Limited Liabilitv. Notwithstanding anything to the contrary
contained herein or in the Note or in any other document mentioned herein, the Local Agency
shall not have any liability hereunder or by reason hereof or in connection with the transactions
contemplated hereby except to the extent payable from moneys avaiiable therefor as set forth in
Section 8 hereof.
Section 17. Amendments. At any time or from time to time, the Local Agency
may adopt one or more Supplemental Resolutions with the written consents of the Authority
and the Credit Provider, if any, but without the necessity for consent of the owner of the Note
for anyone or more of the following purposes:
(a) to add to the covenants and agreements of the Local Agency in
this Resolution, other covenants and agreements to be observed by the Local
Agency which are not contrary to or inconsistent with this Resolution as
theretofore in effect;
(b) to add to the limitations and restrictions in this Resolution, other
limitations and restrictions to be observed by the Local Agency which are not
contrary to or inconsistent with this Resolution as theretofore in effect;
(c) to confirm, as further assurance, any pledge under, and the
subjection to any lien or pledge created or to be created by, this Resolution, of
any monies, securities or funds, or to establish any additional funds or accounts
to be held under this Resolution;
(d) to cure any ambiguity, supply any omission, or cure or correct
any defect or inconsistent provision in this Resolution; or
(e)
to amend or supplement this Resolution in any other respect;
provided, however, that any such Supplemental Resolution does not adversely affect the
interests of the owner of the Note or of the Note Participations executed and delivered in
connection with the Notes.
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
Any modifications or amendment of this Resolution and of the rights and
obligations of the Local Agency and of the owner of the Note or of the Note Participations
executed and delivered in connection with the Notes may be made by a Supplemental
Resolution, with the written consents of the Authority and the Credit Provider, if any, and with
the written consent of the owners of at least a majority in principal amount of the Note and of
the Note Participations executed and delivered in connection with the Notes outstanding at the
time such consent is given; provided, however, that if such modification or amendment will, by
its terms, not take effect so long as the Note or any or of the Note Participations executed and
delivered in connection with the Notes remain outstanding, the consent of the owners of such
Note or of the Note Participations executed and delivered in connection with the Notes shall
not be required. No such modification or amendment shall permit a change in the maturity of
the Note or a reduction of the principal amount thereof or an extension of the time of any
payment thereon or a reduction of the rate of interest thereon, or a change in the date or
amounts of the pledge set forth in this Resolution, without the consent of the owners of such
Note or the owners of all of the Note Participations executed and delivered in connection with
the Notes, or shall reduce the percentage of the Note or the owners of all of the Note
Participations executed and delivered in connection with the Notes, the consent of the owners
of which is required to effect any such modification or amendment, or shall change or modify
any of the rights or obligations of the Trustee without its written assent thereto.
Section 18. Severability. In the event any provision of this Resolution shall be
held invalid or unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
Section 19. Appointment of Bond Counsel. The Local Agency approves and
consents to the appointment of the law firm of Orrick, Herrington & Sutcliffe LLP, Los
Angeles, California as Bond Counsel for the Program. The Local Agency acknowledges that
Bond Counsel regularly performs legal services for many private and public entities in
connection with a wide variety of matters, and that Bond Counsel has represented, is
representing or may in the future represent other public entities, underwriters, trustees, rating
agencies, insurers, credit enhancement providers, lenders, financial and other consultants who
may have a role or interest in the proposed financing or that may be involved with or adverse to
Local Agency in this or some other matter. Given the special, limited role of Bond Counsel
described above, the Local Agency acknowledges that no conflict of interest exists or would
exist, waives any conflict of interest that might appear to exist, and consents to any and all such
relationships.
Section 20. Appointment of Underwriter. The Local Agency approves and
consents to the appointment of Barclays Capital Inc., as senior manager, together with such co-
underwriters, if any, identified in the Purchase Contract, as Underwriter for the Program.
OHS Wcst:26061 14593
-10929-605 LAO,'LAO
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGR.\M
5
Section 21. Resolution Parameters.
(a)
Name of Local Agency: CITY OF SAN BERNARDINO
(b) Maximum Amount of Borrowing: $20,000,000.00
(c) Authorized Representatives:
TITLE
(1) Mayor
(2) City Clerk
(3) City Manager
Section 22. Effective Date. This Resolution shall take effect from and after its
date of adoption.
OilS \Vest:260611-l59.3
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RESOLUTION AUTHORIZING AND APPROVING THE BORROWING
OF FUNDS FOR FISCAL YEAR 2009-2010; THE ISSUANCE AND SALE
OF A 2009-2010 TAX AND REVENUE ANTICIPATION NOTE
THEREFOR AND PARTICIPATION IN THE CALIFORNIA
COMMUNITIES CASH FLOW FINANCING PROGRAM
I HEREBY CERTIFY that the foregoing resolution was duly adopted by the
7 Mayor and Common Council of the City of San Bernardino at a
meeting
8 thereof, held on the ~ day of
, 2009, by the following vote, to wit:
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ABST ATN
ABSENT
NAYS
AYES
COUNCILMEMBERS
ESTRADA
BAXTER
BRINKER
SHORETT
KELLEY
JOHNSON
McCAMMACK
Rachel Clark. City Clerk
The foregoing resolution is hereby approved this _ day of
2009.
Patrick J. Morris, Mayor
City of San Bernardino
Approved as to form:
1. ~
. Penman, City Attorney
OHS \Vcsl:260611459.3
40929-605 LAO/LAO
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EXHIBIT A
FORM OF NOTE
CITY OF SAN BERNARDINO
2009 TAX AND REVENUE ANTICIPATION NOTE, SERIES
Interest Rate
Maturity Date
Date of
Ori ginal Issue
July 1,2009
Third
Repayment Date
0'
/0
First
Repayment Date
Second
Repayment Date
_% (Total of
principal and
interest due on
Note at maturity)
_% (Total of
principal and interest
due on Note at
maturity)
_0/0 (Total of
principal and interest
due on Note at
maturity)~!
REGISTERED OWNER:
PRINCIPAL AMOUNT:
FOR VALUE RECEIVED, the Local Agency executing this Note (the "Local
Agency") acknowledges itself indebted, and promises to pay, to the registered owner identified
above, or registered assigns, on the maturity date set forth above, the principal sum specified
above in lawful money of the United States of America, and to pay interest thereon on each
Interest Payment Date, as defined in the Trust Agreement, at the Interest Rate specified above
(the "Note Rate"). Principal of and interest on this Note are payable in such coin or currency of
the United States as at the time of payment is legal tender for payment of private and public
debts, such principal to be paid upon surrender hereof at the principal corporate trust office of
Wells Fargo Bank, National Association in Los Angeles, California, or its successor in trust
(the "Trustee"). Interest is payable as specified in the Trust Agreement. Interest shall be
calculated on the basis of a 360-day year, consisting of twelve 30-day months, in like lawful
money from the date hereof until the maturity date specified above and, if funds are not
provided for payment at maturity, thereafter on the basis of a 360-day year for actual days
elapsed until payment in full of said principal sum. Both the principal of and interest on this
Note shall be payable only to the registered owner hereof upon surrender of this Note as the
same shall fall due; provided, however, no interest shall be payable for any period after
maturity during which the holder hereof fails to properly prcsent this Notc for payment. If the
!fmore than onc Series 15 Issued underthe Program m the Repayment FIscal Year.
27
- Number of Repayment Dales and percentages to be determmed in Pricing Confirmation (as defined 10 the
28 ResolutIOn).
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Local Agency fails to pay this Note when due or the Credit Provider (as defined in the
Resolution hereinafter described), if any, is not reimbursed in full for the amount drawn on or
paid pursuant to the Credit Instrument (as defined in the Resolution) to pay all or a portion of
this Note on the date of such payment, this Note shall become a Defaulted Note (as defined and
with the consequences set forth in the Resolution).
It is hereby certified, recited and declared that this Note (the "Note") represents
the authorized issue of the Note in the aggregate principal amount made, executed and given
pursuant to and by authority of certain resolutions of the Legislative Body of the Local Agency
duly passed and adopted heretofore, under and by authority of Article 7.6 (commencing with
Section 53850) of Chapter 4, Part 1, Division 2, Title 5 of the California Government Code
(collectively, the "Resolution"), to all of the provisions and limitations of which the owner of
this Note, by acceptance hereof, assents and agrees.
The principal of the Note, together with the interest thereon, shall be payable
from taxes, income, revenue, cash receipts and other moneys which are received by the Local
Agency for the general fund of the Local Agency and are attributable to the Repayment Fiscal
Year, as defined in the Resolution, and which are available for payment thereof. As security
for the payment of the principal of and interest on the Note, the Local Agency has pledged the
first amounts of unrestricted revenues of the Local Agency received on the last day of the
Repayment Months (as defined in the Resolution) identified in the Pricing Confirmation (as
defined in the Resolution) (and any amounts received thereafter attributable to the Repayment
Fiscal Year) until the amount on deposit in the Payment Account (as defined in the Resolution)
in each such month, is equal to the corresponding percentages of principal of and interest due
on the Note as set forth in the Pricing Confirmation (such pledged amounts being hereinafter
called the "Pledged Revenues"), and the principal of the Note and the interest thereon shall
constitute a first lien and charge thereon and shall be payable from the Pledged Revenues, and
to the extent not so paid shall be paid from any other moneys of the Local Agency lawfully
available therefore as set forth in the Resolution. The full faith and credit of the Local Agency
is not pledged to the payment of the principal or interest on this Note.
The Local Agency and the Trustee may deem and treat the registered owner
hereof as the absolute owner hereof for the purpose of receiving payment of or on account of
principal hereof and interest due hereon and for all other purposes, and the Local Agency and
the Trustee shall not be affected by any notice to the contrary.
It is hereby certified that all of the conditions, things and acts required to exist,
to have happened and to have been perfornled precedent to and in the issuance of this Note do
exist, have happened and have been performed in due time, form and manner as required by the
Constitution and statutes of the State of California and that the amount of this Note, together
with all other indebtedness of the Local Agency, does not exceed any limit prescribed by the
Constitution or statutes of the State of California.
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IN WITNESS WHEREOF, the Legislative Body of the Local Agency has
caused this Note to be executed by the manual or facsimile signature of a duly Authorized
Representative of the Local Agency and countersigned by the manual or facsimile signature of
the Secretary or Clerk of the Legislative Body as of the date of authentication set forth below.
CITY OF SAN BERNARDINO
By:
Title:
Countersigned
By:
Title:
OHS West:26061 ]459_3
--101)29-605 LAO/LAO
3
Hawkins Delafield & Wood LLP
Draft of3/12/09
California Communities Tax and Revenue Anticipation Note Program
Note Participations, Series 2009A-l
Note Participations, Series 2009A-2
Note Participations, Series 2009A-3
Note Participations, Series 2009A-4
Note Participations, Series 2009B
NOTE PARTICIPATION PURCHASE AGREEME:\'T
June ,2009
California Local Agencies
As listed on Exhibit A hereto
California Statewide Communities Development Authority
1100 K Street Suite 10 I
Sacramento, California 95814
The undersigned, BarcJays Capital Inc., on behalf of itself and as representative
(the "Representative") of the underwriters listed on the signature page (collectively, the
"Underwriters") offers to enter into the following agreement (this "Note Participation
Purchase Agreement") with the local agencies identified in Exhibit A hereto (severally
and not jointly) (the "Local Agencies") and the California Statewide Communities
Development Authority (the "Authority"), acting as sponsor of the Program (defined
below) and as agent for the Local Agencies (severally and not jointly), which, upon
acceptance of this offer by the Local Agencies and the Authority will be binding upon the
Local Agencies, (severally and not jointly), the Authority and the Underwriters. This
offer is made subject to acceptance of this Note Participation Purchase Agreement by the
Local Agencies and the Authority on or before 5:00 p.m., California time, on the date
hereof, and, if this Note Participation Purchase Agreement is not so accepted, will be
subject to withdrawal by the Underwriters upon notice delivered to the office of the
Authority at any time prior to acceptance hereof by the Authority.
.....---
I. Upon the terms and conditions and upon the basis of the representations,
warranties and agreements set forth herein, the Representative hereby agrees to purchase
California Communities Tax and Revenue Anticipation Note Program Note
Participations, Series 2009A-I (the "Series A-I Note Participations") in the aggregate
principal amount of $ , the California Communities Tax and Revenue
Anticipation Note Program Note Participations, Series 2009A-2 (the "Series A-2 Note
Participations") in the aggregate principal amount of S , the California
Communities Tax and Revenue Anticipation Note Program Note Participations, Series
2009A-3 (the "Series A-3 Note Participations") in the aggregate principal amount of
$ , California Communities Tax and Revenue Anticipation Note Program Note
Participations, Series 2009A-4 (the "Series A-4 Note Participations") in the aggregate
55~22.3 032699 AGMT
principal amount of $ and the California Communities Tax and Revenue
Anticipation Note Program Note Participations, Series 2009B (the "Series B Note
Participations") in the aggregate principal amount of $ , or such lesser amounts as
(i) the Local Agencies and the Authority, based upon advice of Orrick, Herrington &
Sutcliffe LLP, Special Counsel, determines will generate proceeds in an amount which
will not be subject to either yield restriction (in order for interest to be excluded from
gross income under Section 103 of the Internal Revenue Code or rebate requirements
(under Section 148 of said Code), or (ii) shall be equal to the aggregate principal amount
of Notes (as defined herein) deposited with the Trustee by the Local Agencies pursuant to
the related Trust Agreements. The Series A-I Note Participations, the Series A-2 Note
Participations, the Series A-3 Note Participations and the Series A-4 Note Participations
are collectively referred to herein as the "Series A Note Participations". The Series B
Note Participations are referred to herein as the "Series B Note Participations." The
Series A Note Participations and the Series B Note Participations are collectively referred
to herein as the "Note Participations". The Authority is the sponsor of the California
Communities Tax and Revenue Anticipation Note Program (the "Program") and serves as
agent to the Local Agencies with respect to certain aspects of their participation in the
Program.
The Note Participations shall be dated the date of initial execution and delivery,
shall mature on the dates, and shall evidence and represent principal of the Notes and
interest accrued thereon from the date of initial issuance of the Notes and execution and
delivery of the Note Participations, which interest shall be payable on certain dates and at
certain rates, all as shown on Exhibit B hereto. The aggregate purchase price to be paid
by the Underwriters for all Series of the Note Participations is hereby agreed to be
$ (representing the principal amount of $ plus original issue premium
of $ less the Underwriters' discount of $ ). The breakdown of the
purchase price by Series is shown in Exhibit B. Such payment and delivery and the other
actions contemplated hereby to take place at the time of such payment and delivery are
referred to as the "Closing."
In connection with the offering and sale of the Note Participations, each of the
several Local Agencies and the Authority hereby ratifies, confirms and approves of the
use and distribution by the Underwriters prior to the date hereof of the Preliminary
Official Statement dated , 2009, relating to the Note Participations (including the
cover page and Appendices thereto, the "Preliminary Official Statement") which, as of its
date, the Local Agencies have deemed final (and hereby confirm and ratify such deeming
final) for purposes of Rule l5c2-12 promulgated under the Securities Exchange Act of
1934, as amended, ("Rule l5c2-l2") except for information permitted to be omitted
therefrom by Rule l5c2-l2. The Authority has deemed final (and hereby confirms and
ratifies such deeming final), as of its date, the sections of the Preliminary Official
Statement entitled "THE AUTHORITY AND THE PROGRAM" and "LITIGATION-
The Authority." On behalf of the Local Agencies, the Authority agrees to deliver to the
Underwriters as many definitive copies of the Preliminary Official Statement, as
amended to conform to the terms of this Note Participation Purchase Agreement and with
such other changes and amendments as are mutually agreed upon by the Underwriters,
the Local Agencies and the Authority (the "Official Statement"), as the Underwriters
2
55222.3032699 AGMT
shall reasonably request as necessary to comply with paragraph (b)(4) of Rule 15c2-12
and with Rule G-2 and all other rules of the Municipal Securities Rulemaking Board. On
behalf of the Local Agencies, the Authority agrees to deliver the final Official Statements
within seven business days after the execution of this Note Participation Purchase
Agreement.
7 The Note Participations shall be delivered and secured under the
provisions of separate Trust Agreements for each Series of Note Participations dated as
of July I, 2009 (the "Trust Agreements") by and between the Authority and Wells Fargo
Bank, National Association (the "Trustee") and certain Local Agencies named therein.
The principal of and interest evidenced by the Note Participations shall be payable as
provided in the Trust Agreements and as described in the Official Statement. All
capitalized items not defined herein shall have the meanings set forth in the Trust
Agreements. Each Series of Note Participations evidences and represents the tax and
revenue anticipation notes (the "Notes") issued by those California local agencies listed
on Schedule I of the related Trust Agreement, pursuant to and secured by the related
resolution adopted by each Local Agency (collectively, the "Local Agency Resolutions").
The Local Agencies shall irrevocably deposit with and pledge and transfer to the Trustee,
who is the registered owner of each Note for the benefit of the Owners of the Note
Participations and the Credit Provider, as applicable, and such deposit, transfer and
pledge shall constitute a first and exclusive lien on the principal and interest payments of
the Notes for the purpose and on the terms set forth in the related Trust Agreement. The
Note of each Local Agency shall be registered in the name of the Trustee and held by the
Trustee for the benefit of the owners of the related Series of Note Participations to secure
the payment of principal of and interest on the Note Participations. The payment of up to
$ of the principal of and interest on [the Series A-I Note Participations] shall
also be secured by a letter of credit (the "Credit Instrument") issued by U.S. Bank
National Association (the "Credit Provider"). The issuance of the Notes, and the approval
of the execution and delivery of the Trust Agreements and the Note Participations, have
been duly and validly authorized or acknowledged by the Local Agencies pursuant to the
Local Agency Resolutions.
The Authority on behalf of each Local Agency hereby authorizes the
Underwriters to use and distribute the Trust Agreements, the Local Agency Resolutions,
the Preliminary Official Statement and the Official Statement and the information
contained in each such document in connection with the offering and the sale of the Note
Participations.
3. At 9:00 a.m., California time, on [July 1,2009], or at such earlier or later
time or date as shall be agreed by the Authority on behalf of each Local Agency and the
Representative (such time and date being herein referred to as the "Closing Date"), the
Trustee at the direction of the Authority on behalf of each Local Agency will deliver to
the Underwriters, for redelivery through The Depository Trust Company ("DTC"), in
New York, New York (or such other location as may be designated by the Underwriters
and approved by the Authority), the Note Participations in the form of one or more (as
may be required by DTe) fully registered Note Participations (which may be typewritten)
duly executed by the manual signature of a representative of the Trustee, and will deliver
,
)
55222.3 032699 AGMT
or cause to be delivered to the Underwriters in Los Angeles, California (or such other
location as may be designated by the Underwriters and approved by the Authority), the
other documents herein mentioned. It shall be a condition to the obligation of the
Underwriters to purchase, to accept delivery of and to pay for the Note Participations,
that the entire aggregate principal amount of the Note Participations authorized to be
executed and delivered by the Trust Agreements shall be sold and delivered at the
Closing. The Underwriters will accept such delivery and pay the purchase price of the
Note Participations as set forth in Section I herein by wire transfer in immediately
available funds. Notwithstanding the foregoing, neither the failure to print CUSIP
numbers on any Note Participation nor any error with respect thereto shall constitute
cause for a failure or refusal by the Underwriters to accept delivery of and pay for the
Note Participations on the Closing Date in accordance with the terms of this Note
Participation Purchase Agreement. The Note Participations shall be made available to the
Underwriters in New York, New York not later than one business day before the Closing
Date for purposes of inspection and packaging. Upon initial issuance, the ownership of
such Note Participations shall be registered in the registration books kept by the Trustee
in the name of Cede & Co., as the nominee of DTC.
4. Each Local Agency represents, warrants and agrees as follows:
(a) the Local Agency is, and will be at the Closing Date, a duly organized,
validly existing and operating local agency pursuant to the laws of the State of California
(the "State") with full power and authority to observe and perform the covenants and
agreements set forth in the Trust Agreement to which it is a party, and this Note
Participation Purchase Agreement, and to deliver its Note:
(b) by official action of the Local Agency. prior to or concurrently with the
acceptance hereof, the Local Agency (i) has duly authorized the distribution of the
Preliminary Official Statement, approved and authorized the distribution of the Official
Statement, and (ii) adopted the Local Agency Resolution, and authorized and approved
the execution and delivery of the Trust Agreement to which it is a party, and this Note
Participation Purchase Agreement, and the performance of its obligations contained in its
Note, the Trust Agreement to which it is a party, and this Note Participation Purchase
Agreement, and the Local Agency Resolution is in full force and effect and has not been
amended or supplemented as of the date hereof. and, that it will advise the Representative
promptly of any proposal to amend or supplement the Local Agency Resolution;
(c) the adoption of the Local Agency Resolution and the execution and
delivery of this Note Participation Purchase Agreement, the Trust Agreement to which it
is a party and its Note, and compliance with the provisions on the Local Agency's part
contained therein do not and will not conflict with or constitute a breach of or default
under any law, administrative regulation, judgment. decree, statute, indenture, mortgage,
deed of trust, bond, note, resolution, agreement or other instrument to which the Local
Agency is a party or by which the Local Agency or, to its knowledge, any of its
properties are bound; 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 nature whatsoever upon any of the properties or assets of the Local Agency which
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materially adversely affects the security for its Note under the terms of any such law,
administrative regulation, judgment, decree, statute, indenture, mortgage, deed of trust
bond, note, resolution, agreement or other instrument;
(d) all conscnts, approvals and authorizations of governmental or regulatory
authorities or by or on behalf of any creditors or any other third party for the valid
execution and delivery of its Note, the Trust Agreement to which it is a party and this
Note Participation Purchase Agreement, and the performance of the Local Agency's
obligations contained herein and therein, have been obtained and are in full force and
effect;
(e) other than as set forth in the Official Statement, 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, which has been formally served on the Local
Agency or, to the knowledge of the Local Agency, pending or threatened against the
Local Agency seeking to restrain or enjoin the issuance, sale, execution or delivery of the
Note Participations or the pledge or application of the Notes pursuant to the Trust
Agreement to which it is a party, to an extent which would have a materially adverse
effect on the security for the Note Participations, or in any way contesting or affecting the
validity of any proceedings of the Local Agency taken concerning the issuance or sale of
the Note Participations, the Local Agency Resolution, the Trust Agreement to which it is
a party and this Note Participation Purchase Agreement or any other agreement or
instrument to which the Local Agency is a party or by which the Local Agency or any of
its properties are bound or the federal tax exempt status of interest on the Note
Participations, or contesting in any way the completeness or accuracy of the Preliminary
Official Statement or the Official Statement as amended or supplemented, or the
existence or powers of the Local Agency relating to the issuance of the Note
Participations, the adoption of the Local Agency Resolution or the execution and delivery
of this Note Participation Purchase Agreement;
(I) all representations and warranties set forth in the Local Agency Resolution
are true and correct on the date hereof and are made for the benefit of the Authority and
the Underwriters as if set forth herein;
(g) a copy of the Local Agency Resolution has been delivered to the Authority
and the Representative, and the Local Agency Resolution will not be amended or
repealed without the consent of the Authority and the Representative, which consent will
not be unreasonably withheld;
(h) the Local Agency is authorized to execute the related Trust Agreement
and to deliver the Note to the Trustee under such Trust Agreement;
(i) the Local Agency has not issued and will not issue any obligation or
obligations, other than the Note or the Parity Notes authorized to be issued by the Local
Agencies pursuant to their respective Local Agency Resolution, to finance the working
capital deficit for which the Note is being issued;
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(j) both at the time of acceptance hereof by the Local Agency, and at the
Closing Date and at all times subsequent thereto during the period up to and including
twenty-five (25) days after the end of the underwriting period (as described below), the
Preliminary Official Statement as of its date and the Official Statement (other than
statements or information specifically related to one of the other Local Agencies) are and
will be true, correct and complete in all material respects and the Official Statement
(other than statements or information specifically related to one of the other Local
Agencies) does not and will not, as of the Closing Date and at all times subsequent
thereto during the period up to and including twenty-five (25) days after the end of the
underwriting period (as described below), omit to state any material fact necessary to
make the statements and information contained therein, in the light of the circumstances
under which they were made, not misleading in any material respect; it being further
understood that no such representation or warranty shall apply to statements or
information in the Official Statement concerning DTC contained in Appendix I to the
Official Statement or concerning the Credit Provider under the captions "SECURITY
AND SOURCE OF PAYMENT-The Credit Instrument" and "-The Credit Provider" or
in Appendix J to the Official Statement;
(k) if between the date of this Note Participation Purchase Agreement and
twenty-five (25) days after the end of the underwriting period (as described below) an
event occurs or facts or conditions become known, of which the Local Agency has
knowledge, which in the opinion of the Underwriters, might or would cause the
information 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 the information therein, in the light of the circumstances
under which it was presented, not misleading, the Local Agency will notify the Authority
and the Underwriters, and if in the opinion of the Underwriters such event, fact or
condition requires the preparation and publication of a supplement or amendment to the
Official Statement, the Authority will amend or supplement the Official Statement in a
form and in a manner approved by the Underwriters. Unless otherwise notified by the
Underwriters in writing, the Local Agency can assume that the underwriting period (as
defined in Rule l5c2-l2) ends on the Closing Date;
(I) the terms and provisions of this Note Participation Purchase Agreement
and the Trust Agreement to which it is a party comply in all material respects with the
requirements of the Local Agency Resolution, and on the Closing Date the Local Agency
Resolution will be in full force and effect and will not have been supplemented or
amended, and this Note Participation Purchase Agreement constitutes, and the related
Trust Agreement, assuming due authorization, execution and delivery by the other
respective parties thereto, will constitute, the valid and binding obligations of the Local
Agency, enforceable in accordance with its terms, subject to bankruptcy, insolvency,
moratorium and other similar laws affecting creditors' rights generally and to equitable
principles when equitable remedies are sought;
(m) the Local Agency is not in violation or breach of or default under any
applicable law or administrative rule or regulation of the United States or any state
thereof having jurisdiction over the Local Agency or its properties, or of any department,
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division, agency or instrumentality of any state thereof, or any applicable court judgment
or administrative decree or order, or any lease, note, resolution, indenture, contract,
agreement or other instrument to which the Local Agency is a party or is otherwise (to its
knowledge)subject or bound, or to which any of its property is otherwise subject, which
in any way materially affects the issuance of its Note or the validity thereof, this Note
Participation Purchase Agreement, the Local Agency Resolution or the related Trust
Agreement, or materially adversely affects the ability of the Local Agency to perform any
of its obligations under any thereof;
(n) any certificate signed by an authorized officer of the Local Agency and
delivered to the Underwriters, the Trustee or the Authority shall be deemed a
representation and warranty by the Local Agency in connection with this Note
Participation Purchase Agreement to the Underwriters as to the statements made therein
for the purposes for which such statements are made;
(0) the Local Agency will furnish such information, execute such instruments
and take such other action in cooperation with the Underwriters, as the Underwriters may
reasonably request in order to qualify the Note Participations for offer and sale under the
Blue Sky or securities laws and regulations of such states and other jurisdictions of the
United States as the Underwriters may request; provided, however, that the Local
Agencies will not be required to consent to service of process in any such jurisdiction or
to qualify as a foreign corporation in any such jurisdiction;
(p) upon the terms and conditions and in reliance upon the representations,
warranties and agreements set forth herein, the Local Agency shall deposit with the
Trustee the Note, as described herein and in the Local Agency Resolution. The Note
shall be issued in substantially the form set forth in the Local Agency Resolution, without
coupons in the full principal amount set forth in the Pricing Confirmation attached as
Exhibit C hereto (the "Pricing Confirmation") (the Local Agency and the Authority
acknowledge that the Underwriters have not participated in any of the matters pertaining
to investment of the Note proceeds described in the Pricing Confirmation and that the
Underwriters have no responsibility for such investments or any bidding procedures with
respect thereto);
(q) each Local Agency Resolution creates a valid pledge of, lien on, and
security interest in, the related Note and the other funds and assets purported to be
pledged under such Local Agency Resolution, prior in right to any other pledge, lien or
security interest in the Notes or such other funds and assets;
(r) the Local Agency shall cause the Note, duly executed and authenticated,
together with the other documents hereinafter mentioned, to be delivered to the Trustee at
8:00 a.m., California time, on the closing date set forth in the Pricing Confirmation or at
such other time or date as may be mutually agreeable to the Local Agency, the Authority
and the Representative, at the Los Angeles office of Orrick, Herrington & Sutcliffe LLP,
or such other place as the Local Agency, the Authority and the Representative shall
mutually agree. The proceeds of the purchase price of the related Note Participations set
forth in the Pricing Confirmation shall be deposited in an amount indicated in the Pricing
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_' 5222,) 032699 AGMT
Confirmation as the Deposit to Proceeds Fund which shall be held by the Trustee for the
Local Agency and the remainder in the Costs ofIssuance Fund held thereunder;
(s) the Local Agency shall undertake pursuant to the related Trust Agreement
to provide notices of certain events, if material, as described in the Preliminary Official
Statement and the Official Statement;
(t) to the extent permitted by law, each Local Agency agrees to indemnify
and hold harmless the Authority and the Underwriters and each person, if any, who
controls (within the meaning of Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Act of 1934, as amended) the Authority or the Underwriters,
and the officers, directors, agents and employees of the Authority and the Underwriters
against any and all losses, claims, damages, liabilities and expenses arising out of any
statement or information in the Preliminary Official Statement or in the Official
Statement (other than statements or information specifically related to one of the other
Local Agencies, or the Authority and the Program) that is untrue or incorrect in any
material respect or the omission or alleged omission therefrom of any statement or
information (other than statements or information regarding an Issuer other than the
Local Agency, or the Authority and the Program) that should be stated therein or that is
necessary to make the statements and information therein not misleading in any material
respect; and
(u) each Local Agency agrees, pursuant to the Trust Agreement to which it is
a party and as described in the Preliminary Official Statement and the Official Statement,
to provide or cause to be provided to the Municipal Securities Rulemaking Board (the
"MSRB") in a timely manner notice of certain material events respecting the Notes and
the related Note Participations. These agreements have been made in order to assist the
Underwriters in complying with the Rule. Each Local Agency has not in the previous
five years failed to comply in any material respect, and is as of the date hereof in
compliance in all material respects, with its disclosure obligations under any prior
undertaking related to the Rule to provide annual reports or notices of material events.
5.
follows:
The Authority hereby represents and warrants to the Underwriters as
(a) the Authority is, and will be at the Closing Date, ajoint exercise of powers
authority, duly organized and existing pursuant to the laws of the State of California (the
"State") with full power and authority to observe and perform the covenants and
agreements set forth in the Trust Agreements, and this Note Participation Purchase
Agreement;
(b) by official action of the Authority, prior to or concurrently with the
acceptance hereof, the Authority (i) in its capacity as agent of the several Local Agencies
and on their behalf has duly authorized the distribution of the Preliminary Official
Statement, approved and authorized the execution and distribution of the Official
Statement, and (ii) adopted the Authority Resolution, and authorized and approved the
execution and delivery of the Trust Agreements, and this Note Participation Purchase
8
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Agreement, and the performance of its obligations contained in the Trust Agreements,
and this Note Participation Purchase Agreement, and the Authority Resolution is in full
force and effect and has not been amended or supplemented as of the date hereof, and,
that it will advise the Underwriters promptly of any proposal to amend or supplement the
Authority Resolution;
(c) the adoption of the Authority Resolution and the execution and delivery of
this Note Participation Purchase Agreement and the Trust Agreements, and compliance
with the provisions on the Authority's part contained therein do not and will not conflict
with or constitute a breach of or default under any law, administrative regulation,
judgment, decree, statute, indenture, mortgage, deed of trust, bond, note, resolution,
agreement or other instrument to which the Authority is a party or by which the Authority
or, to its knowledge, any of its properties are bound, 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 nature whatsoever upon any of the
properties or assets of the Authority which materially adversely affects the security for
the Note Participations under the terms of any such law, administrative regulation,
judgment, decree, statue, indenture, mortgage, deed of trust bond, note, resolution,
agreement or other instrument, except as provided in the Trust Agreements;
(d) all consents, approvals and authorizations of governmental or regulatory
authorities or by or on behalf of any creditors or any other third party for the valid
execution and delivery of the Trust Agreements and this Note Participation Purchase
Agreement, and the performance of the Authority's obligations contained herein and
therein, have been obtained and are in full force and effect;
(e) other than as set forth in the Official Statement, 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, which has been formally served on the
Authority or, to the knowledge of the Authority, pending or threatened against the
Authority seeking to restrain or enjoin the issuance, sale, execution or delivery of the
Note Participations or the pledge or application of the Notes pursuant to the Trust
Agreements, to an extent which would have a materially adverse effect on the security for
the Note Participations or in any way contesting or affecting the validity of any
proceedings of the Authority taken concerning the issuance or sale of the Note
Participations, the Authority Resolution, the Trust Agreements and this Note
Participation Purchase Agreement or any other agreement or instrument to which the
Authority is a party or by which the Authority or any of its properties are bound or the
federal tax exempt status of interest on the Note Participations or contesting in any way
the completeness or accuracy of the Preliminary Official Statement or the Official
Statement, as amended or supplemented, or the existence or powers of the Authority
relating to the adoption of the Authority Resolution or the execution and delivery of this
Note Participation Purchase Agreement;
(I) both at the time of acceptance hereof by the Authority and at the Closing
Date and at all times subsequent thereto during the period up to and including twenty-five
(25) days after the end of the underwriting period (as described below), the statements
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S5:!22.3 032699 AGMT
and information relating to the Authority contained in the Preliminary Official Statement
as of its date and the Official Statement are and will be true, correct and complete in all
material respects and the Official Statement does not and will not, as of the Closing Date
and at all times subsequent thereto during the period up to and including twenty-five (25)
days after the end of the underwriting period (as described below), omit to state any
material fact necessary to make the statements and information contained therein relating
to the Authority, in the light of the circumstances under which they were made, not
misleading in any material respect;
(g) if between the date of this Note Participation Purchase Agreement and
thirty (30) days after the end of the underwriting period (as described below) an event
occurs or facts or conditions become known, of which the Authority has knowledge,
which in the opinion of the Underwriters, might or would cause the information in the
Official Statement, as then supplemented or amended, to contain an untrue statement of a
material factor to omit to state a material fact required to be stated therein or necessary to
make the information therein, in the light of the circumstances under which it was
presented, not misleading, the Authority will notify the Underwriters, and if in the
opinion of the Underwriters such event, fact or condition requires the preparation and
publication of a supplement or amendment to the Official Statement, the Authority will
amend or supplement the Official Statement in a form and in a mal1j1er approved by the
Underwriters. Unless otherwise notified by the Underwriters in writing, the Authority can
assume that the underwriting period (as defined in Rule 15c2-12) ends on the Closing
Date;
(h) the terms and provisions of this Note Participation Purchase Agreement
and the Trust Agreements comply in all material respects with the requirements of the
Authority Resolution, and on the Closing Date the Authority Resolution will be in full
force and effect and will not have been supplemented or amended, and this Note
Participation Purchase Agreement constitute, and the Trust Agreements, assuming due
authorization, execution and delivery by the other respective parties thereto, will
constitute, the valid and binding obligations of the Authority, enforceable in accordance
with their respective terms, subject to bankruptcy, insolvency, moratorium and other
similar laws affecting creditors' rights generally and to equitable principles when
equitable remedies are sought;
(i) the Authority is not m violation or breach of or default under any
applicable law or administrative rule or regulation of the United States or any state
thereof having jurisdiction over the Authority or its properties, or of any department,
division, agency or instrumentality of any state thereof, or any applicable court judgment
or administrative decree or order, or any lease, note, resolution, indenture, contract,
agreement or other instrument to which the Authority is a party or is otherwise (to its
knowledge) subject or bound, or to which any of its property is otherwise subject, which
in any way materially affects this Note Participation Purchase Agreement, the Authority
Resolution or the Trust Agreements, or materially adversely affects the ability of the
Authority to perform any of its obligations under any thereof; and
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55222.3 032699 AGMT
(j) any certificate signed by an authorized officer of the Authority and
delivered to the Underwriters or the Trustee shall be deemed a representation and
warranty by the Authority in connection with this Note Participation Purchase Agreement
to the Underwriters as to the statements made therein for the purposes for which made.
6. The Underwriters have entered into this Note Participation Purchase
Agreement in reliance upon the representations, warranties and covenants of each of the
Local Agencies contained in the Local Agency Resolutions and to be contained in the
documents and instruments to be delivered at the Closing (hereinafter referred to
collectively as the "Delivery Certificates") and upon the performance by the Authority
and each of the Local Agencies of their respective obligations hereunder and under the
Authority Resolution, the Local Agency Resolutions and the Trust Agreements
(collectively, the "Documents"), both as of the date hereof and as of the date of the
Closing. Accordingly, the Underwriters' obligation under this Note Participation Purchase
Agreement to purchase, to accept delivery of and to pay for the Note Participations shall
be subject to the performance by each of the Local Agencies and the Authority of their
respective obligations to be performed hereunder and under the Documents to which they
are a party at or prior to the Closing and shall also be subject to the following conditions.
including the delivery by each of the Local Agencies or the Authority, or the Authority
on behalf of each of the Local Agencies, of such documents as are contemplated hereby
in form and substance satisfactory to Hawkins Delafield & Wood LLP, counsel to the
Underwriters, and Orrick, Herrington & Sutcliffe LLP, Special Counsel, and to the
following additional conditions:
(a) The representations and warranties of each of the Local Agencies
contained herein and in its Delivery Certificates shall be true, complete and
correct in all material respects as of the date thereof, and the representations and
warranties of each of the Local Agencies contained in its Local Agency
Resolution shall be true, complete and correct in all material respects on the date
hereof and on and as of the date of the Closing, as if made on the date of the
Closing. The Authority shall inform the Underwriters prior to the Closing if it has
actual knowledge that any of the representations and warranties contained herein
or in any Local Agency's Delivery Certificate, or Local Agency Resolution has
become false or misleading prior to the Closing.
(b) The representations and warranties of the Authority herein are true
and correct as of the date hereof and as of the Closing Date.
(c) At the time of the Closing, all official action of each Local Agency
relating to its Resolution shall be in full force and effect and shall not have been
revoked, amended, modified or supplemented.
(d) The Underwriters shall have the right to terminate the
Underwriters' obligation under this Note Participation Purchase Agreement to
purchase, to accept delivery of and to pay for the Note Participations by notifying
the Authority of their election so to do if, after the execution hereof and prior to
the Closing: (i) the offer, sale and delivery of the Note Participations or the
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market price thereof, in the reasonable opinion of the Representative, has been or
will be materially and adversely affected by an amendment or proposed
amendment to the Constitution of the United States or the State or by any federal
or State legislation or the promulgation or proposed promulgation of any rule or
regulation thereunder or by any decision of any federal, State, or local court or by
any ruling or regulation (final, temporary or proposed) by or on behalf of the
Treasury Department of the United States, the Internal Revenue Service or other
federal or State authority, affecting (l) the federal income status of any of the
Local Agencies or the Authority, its property or income or its obligations
(including the Notes and the Note Participations) or (2) the federal income tax
status of the interest on the Notes or the Note Participations or the validity of the
Notes or the Note Participations or any of the Documents; or (ii) there shall have
occurred any outbreak of hostilities or escalation of hostilities or change in
financial markets other national or international calamity or crisis, in the
reasonable opinion of the Underwriters, would make it impracticable or
inadvisable to proceed with the offer, sale or delivery of the Note Participations
on the terms and in the manner contemplated in the Official Statement; or (iii)
there shall have occurred a general suspension of trading on the New York Stock
Exchange or the declaration of a general banking moratorium by the United States
or authorities of the States of New York or California; or (iv) there shall have
occurred any adverse change or any development involving a prospective change
in the condition, financial or otherwise, of any of the Local Agencies, which, in
the reasonable opinion of the Underwriters, would make it impracticable or
inadvisable to proceed with the offer, sale or delivery of the Note Participations
on the terms and in the manner contemplated in the Official Statement; or (v)
there shall have occurred a default under any federal bankruptcy laws by or
against any state of the United States or any local agency located in the State or
any local agency located in the United States having a population of over
500,000, the effect of which, in the reasonable opinion of the Underwriters, would
make it impracticable or inadvisable to proceed with the offer, sale or delivery of
the Note Participations on the terms and in the manner contemplated in the
Official Statement; or (vi) legislation shall be enacted, or a decision of a court of
competent jurisdiction shall be rendered or any action shall be taken by or on
behalf of, the Securities and Exchange Commission, the California Department of
Corporations or any other federal or state governmental agency having
jurisdiction in the subject matter which; in the opinion of counsel to the
Underwriters, has the effect of requiring registration or qualification of the
issuance, offering or sale of the Note Participations, or of obligations of the
general character of the Note Participations as contemplated hereby, under the
Securities Act of 1933, as amended, or the Trust Agreements under the Trust
Indenture Act of 1939, as amended; or (vii) the New York Stock Exchange or
other national securities exchange, or any governmental authority, shall impose,
as to the Note Participations or obligations of the general character of the Note
Participations, any material restrictions not now in force or being enforced, or
increase materially those now in force, with respect to extension of credit by, or
the charges to the net capital requirements of, underwriters.
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(e) Any event shall have occurred or shall exist which either (i) makes
untrue or incorrect in any material respect any statement or information contained
in or appended to the Official Statement, or (ii) is not reflected in the Official
Statement or Appendices thereto and should be reflected therein in order to make
the statements and information contained therein not misleading in any material
respect (for the purposes of this paragraph the Preliminary Official Statement
shall be deemed to be the Official Statement until such time as a final Official
Statement is printed and delivered to the Underwriters).
(f) Any of the Local Agencies shall fail to deliver its Note to the
Trustee or the Authority shall fail to cause the delivery of, the Note Participations
to the Underwriters as provided herein.
(g) At or prior to the Closing, the Underwriters shall have received the
following documents:
(I) The Official Statement executed on behalf of the Local
Agencies by the Authority by an authorized representative.
(2) Certified copies of the Joint Exercise of Powers Agreement
creating the Authority.
(3) Certified copy of the Authority Resolution.
(4) Executed counterparts of the Trust Agreements.
(5) Certified copy of each Local Agency Resolution.
(6) The unqualified approving opinion, dated the date of the
Closing and addressed to the Local Agencies, of Orrick, Herrington & Sutcliffe
LLP, Special Counsel, in the form attached to the Official Statement as
Appendix H, together with a letter to the Underwriters stating that the
Underwriters are entitled to rely on such approving opinion.
(7) A supplemental opinion, dated the date of the Closing and
addressed to the Underwriters, of Orrick, Herrington & Sutcliffe LLP, Special
Counsel, in form and substance satisfactory to the Underwriters, to the effect that:
(i) the Note Participations are not subject to the registration
requirements of the Securities Act of 1933, as amended, and the Trust
Agreements are exempt from qualification pursuant to the Trust
Agreement Act of 1939, as amended;
(ii) the Purchase Agreement has been duly executed and delivered
by the Authority and is a valid and binding agreement of the Authority;
and
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(iii) the statements contained in the Official Statement in the
sections entitled "DESCRIPTION OF THE NOTE PARTICIPATIONS,"
"SECURITY AND SOURCE OF PAYMENT," and "TAX MATTERS"
and the statements contained in Appendix G to the Note Participations, the
Notes, the Trust Agreements, the Local Agency Resolutions and Special
Counsel's final approving opinion, are accurate in all material respects.
(8) The opinion, dated the date of Closing and addressed to the
Underwriters of Hawkins Delafield & Wood LLP, counsel to the Underwriters, in
form and substance satisfactory to the Underwriters, covering such matters
relating to the transaction contemplated hereby as the Underwriters may
reasonably request.
(9) The opinion, dated the date of Closing and addressed to the
Underwriters, of Orrick, Herrington & Sutcliffe LLP, counsel to the Authority, in
form and substance satisfactory to the Underwriters, to the effect that:
(i) the Authority is a joint exercise of powers authority duly
organized and validly existing pursuant to the laws of the State of
California;
(ii) the Authority has all requisite power and authority to adopt the
Authority Resolution, and to enter into and perform its covenants and
agreements under the Authority Resolution, the Documents to which it is a
party, and this Note Participation Purchase Agreement;
(iii) the Authority Resolution was duly adopted at a meeting of the
Commission of the Authority which was called and held pursuant to law
and with all public notice required by law at which a quorum was present
and acting throughout;
(iv) the execution, delivery and performance by the Authority of
the Documents to which it is a party, and this Note Participation Purchase
Agreement, have been duly authorized by all necessary action on the part
of the Authority, and the Documents to which the Authority is a party and
this Note Participation Purchase Agreement have been duly executed and
delivered by, and constitute the valid and binding obligations of, the
Authority, enforceable in accordance with its terms, except to the extent
that enforceability may be limited by principles of equity or by
bankruptcy, moratorium, reorganization or other laws applicable to
creditors' rights generally.
(10) A certificate of an authorized officer of the Trustee, dated
the date of Closing in form and substance satisfactory to the Representative, to the
effect that:
(i) the Trustee is a duly organized and validly existing national
banking association under the laws of the United States of America,
14
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having full right, power and authority to enter into, accept and administer
the trust created under the Trust Agreements and to execute and deliver
the Note Participations in accordance therewith;
(ii) each Trust Agreement has been duly authorized, executed and
delivered by the Trustee and (assuming the due authorization, execution
and delivery thereof by the Local Agencies and the Authority) constitutes
the valid and binding obligation of the Trustee, enforceable in accordance
with its terms, except to the extent that enforceability may be limited by
principles of equity or by bankruptcy, moratorium, reorganization or other
laws applicable to creditors' rights generally; and
(iii) the execution and delivery by the Trustee of the Trust
Agreements and the Note Participations, and the performance by the
Trustee of the terms thereof, do not violate any provision of the Trustee's
Articles of Association or Bylaws or, to the best of such officer's
knowledge after due inquiry, any existing law, regulation or ruling; nor, to
the best of such officer's knowledge after like inquiry, are the Trust
Agreements or the Note Participations in violation of, nor do they cause a
default under, any agreement or instrument to which the Trustee is a party.
(II) One or more certificates, dated the date of Closing and
signed by an authorized officer of each Local Agency, to the effect that, to their
best knowledge, belief and information:
(i) the representations and warranties of the Local Agency
contained in this Note Participation Purchase Agreement are true and
correct in all material respects on and as of the date of the Closing as if
made on the date of the Closing;
(ii) none of the proceedings or authority for the execution and
delivery of the Trust Agreement or the Note by the Local Agency has been
repealed modified, amended, revoked or rescinded; and
(iii) no event affecting the Local Agency has occurred since the
date of the Official Statement which should be disclosed in the Official
Statement for the purposes for which it is to be used or which it is
necessary to disclose therein in order to make the statements and
information therein not misleading in any material respect.
(12) One or more certificates, dated the date of Closing and
signed by an authorized officer of the Authority to the effect that, to their best
knowledge, belief and information:
(i) the representations and warranties of the Authority contained in
this Note Participation Purchase Agreement are true and correct in all
material respects on and as of the date of the Closing as if made on the
date of the Closing;
15
55222.3 032699 AGMT
(ii) none of the proceedings or authority for the execution and
delivery of the Trust Agreements by the Authority has been repealed
modified, amended, revoked or rescinded; and
(iii) no event affecting the Authority has occurred since the date of
the Official Statement which should be disclosed in the Official Statement
for the purposes for which it is to be used or which it is necessary to
disclose therein in order to make the statements and information therein
not misleading in any material respect.
(13) At the Closing a certificate of each of the participating
Local Agencies executed by an authorized officer of the participating Local
Agency, in form and substance acceptable to the Underwriters and Special
Counsel, dated as of the date of Closing, setting forth facts, estimates and
circumstances concerning the use or application of the proceeds of the Notes
related to the Series A Note Participations and the Series B Note Participations,
and stating in effect that on the basis of such facts, estimates and circumstances in
existence on the date of the Closing, it is not expected that the proceeds of such
Notes will be used in a manner that would cause such Notes to be "arbitrage
bonds" within the meaning of Section 148(a) of the Internal Revenue Code of
1986 (the "Code") and the regulations promulgated thereunder or under the
statutory predecessor of the Code.
(14) At or prior to the Closing, evidence shall be delivered that
the Note Participations shall have been rated "_" by Standard & Poor's
Corporation and "_" by Moody's Investors Service, and that the ratings are in full
force and effect as of the date of Closing.
(IS) Evidence that the federal tax information Form 8038-G has
been prepared for each Local Agency;
(16) A copy of the Notice of Sale required to be delivered to the
California Debt and Investment Advisory Commission ("CD lAC") pursuant to
Section 8855(k) of the California Government Code;
(17) A copy of the Credit Instrument issued by the Credit
Provider, which secures the payment when due of up to $ of the
principal of and interest on the [Series A-I Note Participations], as described in
the Official Statement;
(18) An opinion, dated the date of the Closing and addressed to
the Underwriters and the Authority, of counsel to the Credit Provider, (i) to the
effect that the descriptions of the Credit Provider and of the Credit Instrument
included in the Official Statement are accurate, (ii) to the effect that the Credit
Instrument constitutes a legal, valid and binding obligation of the Credit Provider,
enforceable in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
16
55222.3032699 AGMT
or equitable principles relating to or limiting creditor's rights generally and by the
application of equitable principles if equitable remedies are sought, and (iii) as to
such other matters as the Underwriters may reasonably request;
(19) An opinion, satisfactory in form and substance to the
Underwriters. of counsel to the Trustee, dated the Closing Date and addressed to
the Underwriters, the Credit Provider, the Trustee, the Local Agencies and the
Authority, to the effect that:
(i) The Trustee is a duly organized and validly existing
national banking association in good standing under the laws of the United States
of America and has full power and authority to undertake the trust of the Trust
Agreements;
(ii) The Trustee has duly authorized, executed and delivered
the Trust Agreements, and by all proper corporate action has authorized
acceptance of the duties of the Trustee under of the Trust Agreements and has
authorized, in its capacity as the Trustee, the acceptance of the deposit of the
Notes and the execution and delivery of the Note Participations;
(iii) Assuming the corporate power and legal authority of, and
the due authorization, execution and delivery by the other parties to the Trust
Agreements, such agreements are valid, legal and binding obligations of the
Trustee enforceable against the Trustee in accordance with their respective terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws or equitable principles relating to or limiting
creditors' rights generally; and
(iv) The Note Participations have been validly authorized,
executed and delivered by the Trustee pursuant to direction from the Local
Agencies.
(20) A certificate dated the date of the Closing, signed by a duly
authorized officer of the Credit Provider, as to such matters as the Underwriters
may reasonably request;
(21) An opinion, dated the date of Closing, of counsel to each
Local Agency in substantially the form attached hereto as Exhibit D; and
(22) Such legal opinions, certificates, proceedings, instruments
and other documents as Counsel for the Underwriters or Special Counsel may
reasonably request to evidence (i) compliance by the Authority and each of the
Local Agencies with legal requirements, (ii) the truth and accuracy, as of the time
of Closing, ofthe representations of the Authority and each of the Local Agencies
herein contained or as contained in each Delivery Certificate, (iii) the due
performance or satisfaction by the Authority and each of the Local Agencies at or
prior to such time of all agreements then required to be performed and all
conditions then required to be satisfied by the Authority and each of the Local
]7
-"5222_3 032699 AGMT
Agencies, and (iv) that the information concerning the Local Agencies in the
Official Statement does not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements made, in the light
of the circumstances under which they were made, not misleading.
All of the opinions, letters, certificates, instruments and other documents
mentioned in this Note Participation Purchase Agreement shall be deemed to be in
compliance with the provisions hereof if, and only if, they are in form and substance
satisfactory to the Underwriters.
If the Authority or the Local Agencies shall be unable to satisfy the conditions to
the obligation of the Underwriters to purchase, to accept delivery of and to pay for the
Note Participations contained in this Note Participation Purchase Agreement, or if the
obligation of the Underwriters to purchase, to accept delivery of and to pay for the Note
Participations shall be terminated for any reason permitted by this Note Participation
Purchase Agreement, this Note Participation Purchase Agreement shall terminate and
neither the Underwriters, the Local Agencies nor the Authority shall be under further
obligation hereunder, and except that the respective obligations of the Authority, the
Local Agencies and the Underwriters set forth in paragraph 7 hereof shall continue in full
force and effect.
7. (a) Upon the delivery of the Note Participations to and payment
thereof from the Underwriters, the Local Agencies shall pay solely from the proceeds of
the Note Participations, all expenses incident to the issuance of the Notes and the Note
Participations, including, but not limited to, (i) the cost of printing and preparation for
printing of the preliminary and final Official Statements, as well as the postage or
delivery costs incurred in connection with distribution of the preliminary and final
Official Statements in connection with the offering of the Note Participations; (ii) the cost
of preparing the definitive Note Participations; (iii) the fees and disbursements of the
Counsel to the Authority, Special Counsel, the Trustee, Trustee's Counsel, the Credit
Provider, Credit Provider's Counsel and the rating agencies and any other experts or
consultants and the fees and expenses of any counsel retained by any such person or firm;
and !iv) Blue Sky registration fees. In the event the Underwriters do not purchase the
Note Participations, the Authority shall be under no obligation to pay any expenses
incident to the issuance of the Note Participations.
(b) The Underwriters shall pay: (i) all advertising expenses in
connection with the offering of the Note Participations; (ii) all other expenses incurred by
them in connection with the offering and distribution of the Note Participations; (iii) the
fees of CUSIP and CDIAC in connection with the Note Participations; and (iv) the fees
and disbursements of Underwriters' Counsel.
8. Any notice or other communication to be given to any of the participating
Local Agencies or the Authority under this Note Participation Purchase Agreement may
be given by delivering the same in writing to California Statewide Communities
Development Authority, 1100 K Street, Suite 101, Sacramento, California 95814,
Attention: Treasurer, and any notice or other communication to be gIven to the
18
55222.3032699 AGMT
Underwriters under this Note Participation Purchase Agreement may be given by
delivering the same in writing to Barclays Capital Inc., 10250 Constellation Blvd., 25th
Floor, Los Angeles, California 90067 Attention: Lori Koh.
9. This Note Participation Purchase Agreement is made solely for the benefit
of the Local Agencies, the Authority and the Underwriters, and no other person shall
acquire or have any right hereunder or by virtue hereof. All of the representations,
warranties and agreements of each Local Agency and the Authority contained in this
Note Participation Purchase Agreement and each Local Agency Resolution shall remain
operative and in full force and effect regardless of (i) any investigations made by or on
behalf of the Underwriters, (ii) delivery of any payment for the Note Participations
pursuant to this Note Participation Purchase Agreement and (iii) any termination of this
Note Participation Purchase Agreement.
10. This Note Participation Purchase Agreement shall become effective upon
the execution of the acceptance hereof by a duly authorized signatory of the each Local
Agency which acceptance hereof shall be indicated on the Local Agency's Pricing
Confirmation attached hereto and the Authority and shall be valid and enforceable as of
the time of such acceptance. This Note Participation Purchase Agreement may be
executed by facsimile transmission and in several counterparts, each of which shall be
regarded as an original and all of which shall constitute one and the same document.
19
55222,:; 032()99 AGMT
II. This Note Participation Purchase Agreement shall be governed by and
construed in accordance with the laws of the State of California.
Very truly yours.
BARCLA YS C APIT AL lNe.
J.P. MORGAN SECURITIES lNe.
EJ. DE LA ROSA & CO., lNe.
MERRILL LYNCH, PIERCE FENNER & SMITH
By: BARCLA YS CAPITAL lNe.
By:
Lori Koh
Authorized Representative
Accepted this _ day of _ 2009,
LOCAL AGENCIES LISTED ON EXHIBIT A
[Authorized Officers of each Local Agency shall
execute this Note Participations Purchase Agreement
by signing Pricing Confirmation in Exhibit C hereto]
CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY
By:
Authorized Signatory
20
55122.3032699 AGMT
Series A-I
Series A-2
Series A-3
Series A-4
EXHIBIT A
LOCAL AGENCIES
Series B
55222.3 032699 AGMT
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EXHIBIT C
FORM OF PRICING CONFIRMATION SUPPLEMENT
[LOCAL AGENCY]
PRICING INFORMATION
Pnncipal Amount of Note:
Senes DesIgnation:
Interest Rate on Note:
Re-Offenng Yield:
Purchase Price:
Less: Costs of Issuance:
Underwriters' DIscount:
Credit Enhancement:
DeposIt to Note Proceeds Account:
%
_0/0
%>
$
Series
%
0;
"
$
( )
( )
( )
$ ---.-.--
IMPORT Al'i'T DATES
ResolutIOn Date of Local Agency:
Purchase Date:
Closmg Date:
Note Payment Deposit Date:
Coupon Payment Date(s):
Matunty Date:
First Pledge Month Ending:
Pledge Amount:
Pledge Percentage:
Second Pledge Month Ending:
Pledge Amount:
Pledge Percentage:
.2009
.2009
.2009
,2009
.2009
,2009
s
$
INVESTMENT AGREEMENT INFORMA nON
GIC Provider
Long Term Ratings (S&PlMoody's)
Short Term Credit Ratings (S&PlMoody's)
Interest Rate on GIC
GIC Deposit Date(s):
.2009 Amount(s): $
C-j
:"5222.3032699 AGMT
'By imtialing the box at the end of this paragraph, the
certifies that, in connection with the issuance of the Note under the Rr
inquiry, it IS the reasonable expectation of the Local Agency that the agr
obligatIons (excluding private aCl1vity bonds) issued or to be issued by
calendar year, mcludmg the Note, all other notes and bonds, and a..
delivered dunng the 2009 calendar year will not exceed $5,000,000. (See ~,
the Local Agency If the Local Agency is unable to make this certification.)
\oV
?1!Y
J
IN WITNESS WHEREOF, the Note Participation Purchase Agreemeh,
the Pricing ConfirmatIOn appearing as Exhibit C is accepted, all on the Purchase Date set fo.
[LOCAL AGENCY]
By:
Authorized Representative
Print Name of Person Signing
'Please initial the box only if applicable to the Local Agency.
('-2
"'-gency
-,ble
., and
Ie.
~5222_3 032699 AGMT
CERTIFICATE OF THE LOCAL AGENCY
In connection with the California Communities Cash Flow Financing Program (the
"Program"), the undersigned duly elected (or appointed) and qualified officers identified in and
executing Section 4.6 hereof (the "Authorized Representatives") of the local agency identified in
Section 4.6 hereof (the "Local Agency"), acting for and on behalf of the Local Agency, hereby
certifY, as of July I, 2009 (the "Closing Date"), as follows with respect to the 2009 Tax and
Revenue Anticipation Note (the "Note") issued by the Local Agency:
1. CERTIFICA nONS REGARDING CERTAIN LOCAL AGENCY MA TIERS
1.1. At all times mentioned herein, the Local Agency is a duly organized, validly
existing and operating local agency (as defined in Section 53850 of the California Government
Code), under the laws of the State of California (the "State"). The Local Agency represents that,
pursuant to Government Code Section 5451, the Resolution creates a valid and binding pledge of
and lien on the Pledged Revenues, as defined in the Resolution for the benefit of the owner of the
Note as security for the payment of the Note to the extent set forth in the Resolution, enforceable
in accordance with the terms thereof.
1.2. The undersigned Authorized Representatives, under the resolution (the
"Resolution") adopted by the legislative body of the Local Agency (the "Legislative Body")
authorizing the borrowing of funds for Fiscal Year 2009-20 I 0, are duly authorized to make this
certification for and on behalf of the Local Agency pursuant to the Resolution.
1.3. Incorporated as part of the transcript for the Note is a true, correct and complete
copy of the Resolution, duly adopted by the Local Agency after an agenda of the meeting of the
Legislative Body at which such Resolution was adopted was posted at least 72 hours before said
meeting, at a location freely accessible to members of the public, and all of the members of the
Legislative Body had due notice of said meeting and a quorum thereof were present at said
meeting. The Local Agency has previously provided the California Statewide Communities
Development Authority (the "Authority") with a true, accurate and complete copy of the
Resolution.
1.4. The Resolution has not been amended or revoked and is in full force and effect on
the date hereof, and there is no proceeding of the Legislative Body in conflict with or in any way
altering the Resolution.
1.5. The information contained in the Credit Questionnaire (including the Cashflow
Worksheet therein) (the "Credit Questionnaire") completed by the Local Agency and submitted
to the Authority and Lehman Brothers, as senior manager (the "Underwriter") in connection with
the Program, was at the time submitted and is on the date of this Certificate true and accurate.
Representatives of the Local Agency have reviewed the Trust Agreement, hereinafter defined,
including the Continuing Disclosure Agreement set forth in Article XI thereof. The Local
Agency shall notify the Trustee of the occurrence of any "Listed Event" which relates in any way
to the Local Agency, and will otherwise cooperate with the Trustee and the Authority in
satisfying any continuing disclosure obligation.
OHS West::!606] 1462)
1.6. The Local Agency does not have a negative cash balance at the beginning of
Fiscal Year 2009-2010 in its general fund.
1.7. The Local Agency has authorized or acknowledged, by all necessary action, the
execution, delivery, receipt and due performance of the Resolution, the Note, the Note
Participation Purchase Agreement among the Authority, the Underwriters named therein and the
Local Agency (severally and not jointly with other local agencies named therein), including the
Pricing Confirmation Supplement attached thereto (the "Note Participation Purchase
Agreement"), the Trust Agreement, dated as of July I, 2009 (the 'Trust Agreement") among
Wells Fargo Bank, National Association, as trustee (the "Trustee"), the local agencies
participating in the Program (collectively the "Agencies") and the Authority, pertaining to the
execution and delivery by the Trustee of Note Participations, Series 2009A (the "Note
Participations"), the Credit Agreement, as defined in the Trust Agreement, and any and all other
agreements and documents (the "Other Agreements") as may be required to be executed,
delivered and received by the Local Agency, the Authority or the Trustee in order to carry out,
give effect to and consummate the transactions contemplated by the Resolution. The Resolution,
the Note, the Trust Agreement, the Note Participation Purchase Agreement and the Other
Agreements are collectively referred to herein as the "Documents."
1.8. None of the Documents applicable to the Local Agency have been amended,
modified or rescinded by the Local Agency and each of such Documents is in full force and
effect on the date hereof.
1.9. The representations and warranties of the Local Agency set forth in the applicable
Documents were on the date made and are on the date hereof true and accurate as though made
on and as of the date hereof.
1.10. The Documents have been duly executed and delivered by the duly authorized
officers of the Local Agency, and the Documents, when executed and delivered by the other
parties thereto (where necessary) constitute legal, valid and binding agreements of the Local
Agency, enforceable in accordance with their respective terms, except as such enforceability may
be limited by bankruptcy or other laws affecting creditors' rights, the application of equitable
principles if equitable remedies are sought, the exercise of judicial discretion in appropriate cases
and the limitations on legal remedies against public entities in the State.
1.11. The Local Agency has complied with all provisions of applicable law in
connection with the adoption of the Resolution and the transactions contemplated under the
Resolution and the documents approved thereby.
1.12. The Local Agency has deemed and hereby deems the Preliminary Official
Statement dated May _, 2009 with respect to the Note Participations (the "Preliminary Official
Statement") to be final as of its date for purposes of Rule 15c2-12 promulgated under the
Securities Exchange Act of 1934 ("Rule 15c2-12"), except for information permitted to be
omitted therefrom by Rule 15c2-12; provided, however, that the foregoing certification as to the
finality of the Preliminary Official Statement does not include a certification as to the finality of
the statements and information contained in the Preliminary Official Statement relating to any
other local agency or concerning any Credit Provider (as such term is defined in the Resolution):
OHS Wesl:2606] 1461
The Local Agency is in full compliance with each and every undertaking as defined in and
entered into pursuant to Rule I 5c2- I 2.
1.13. The execution, delivery and performance by the Local Agency of the Note, the
Trust Agreement and the Note Participation Purchase Agreement and the execution, delivery and
performance by the Authority and the Trustee of the Trust Agreement and the execution and
delivery of the Note Participations by the Trustee and the borrowing thereunder or in connection
therewith (and the application of the proceeds thereof) have been duly authorized or
acknowledged by all necessary action on the part of the Local Agency.
1.14. The execution and delivery by the Local Agency of the Documents (and the Local
Agency's obligations thereunder) (i) do not and will not contravene the laws of the State
providing for the organization and government of the Local Agency and (ii) do not and will not
conflict with, or result in the violation of, any applicable law.
1.15. [Intentionally left blank.]
I. I 6. If prior to the Closing Date the Local Agency should have any reason to believe
that any of the representations or certifications contained herein or in the Documents are not true
and correct, the Local Agency covenants that it will promptly notify Orrick, Herrington &
Sutcliffe LLP ("Bond Counsel").
1.17. No event affecting the Local Agency has occurred since the date of the Official
Statement which should be disclosed in the Official Statement for the purposes for which it is to
be used or which it is necessary to disclose therein in order to make the statements and
information therein not misleading in any material respect.
II. CERTIFICATIONS REGARDING TAX MATTERS
2. I. The Local Agency shall not take, or fail to take, any action that would cause
interest on the Note Participations to be included in gross income for federal income tax
purposes or cause the Note Participations to be treated as "arbitrage bonds" within the meaning
of Section 148 of the Internal Revenue Code of 1986 (the "Code"). In addition, the Local
Agency:
a) shall not allow the use of any proceeds of the Note to be used in the trade or
business of any nongovernmental person;
b) shall not loan any proceeds of the Note to any nongovernmental person;
c) shall take no actions that would cause the Note Participations to be treated as
"federally guaranteed," within the meaning of Section I 49(b) of the Code;
d) shall not use any proceeds of the Note to repay any principal or interest of any
outstanding tax-exempt obligation of the Local Agency apart from interest that accrues during a
one-year period commencing July I, 2009;
OHS Wes\260(li 14(':;
e) shall not set aside or specifically earmark amounts to be used to satisfY the Local
Agency's repayment obligation described in Section 8 of the Resolution earlier than the date
which is one year prior to the final maturity date of the Note of the Local Agency; and
f) shall retain all records relating to the use, investment and repayment of the Note
and Note proceeds.
III. CERTIFICATIONS REGARDING ARBITRAGE AND REBATE
The following are the certifications and the reasonable expectations of the Local Agency,
stated pursuant to Treasury Regulations Section 1. I 48-2(b ), relating to the use and investment of
the proceeds of the Note:
3.1. The Note is being issued in anticipation of taxes or other revenues and will be
spent to pay lawful expenses of the Local Agency payable from its general fund.
3.2. Based upon the Local Agency's cash flow projections which are set forth in
Appendix C of the Official Statement relating to the Note Participations (the "Cashflow
Projections"), the Local Agency expects to allocate the proceeds of the Note to working capital
expenditures within 13 months after July I, 2009, using the methodology described in the next
section.
3.3. Proceeds of the Note will be allocated to working capital expenditures of the
Local Agency on any date that the Local Agency's working capital expenditures exceed the
Local Agency's "available amounts." "Available amounts" include any cash, investments, or
other amounts held in any fund or account by the Local Agency that is available for the Local
Agency to use for working capital expenditures without legislative or judicial action and without
a legislative, judicial, or contractual requirement that those amounts be reimbursed. "Available
amounts" do not include proceeds of the Notes or amounts held in a reasonable working capital
reserve that is limited to either ten percent (10%) of the amount of the Note or the lesser of either
(i) five percent (5%) of the Local Agency expenditures paid out of current revenues during Fiscal
Year 2008-2009 or (ii) the amount that the Local Agency has historically and customarily
maintained as a working capital reserve.
3.4. The funds and accounts maintained by or for the benefit of the Local Agency that
are considered available for payment of the Local Agency's expenditures have been described in
the Credit Questionnaire, and their cash balances as of the date of issue have been taken into
account in the Cash flow Projections.
3.5. In preparing its cash flow analysis for Fiscal Year 2009-2010, the Local Agency
has reviewed its Fiscal Year 2008-2009 cash flows and has, where applicable, compared the
Fiscal Year 2008-2009 actual cash flows with the Fiscal Year 2008-2009 cash flows projected
just before the beginning of Fiscal Year 2008-2009. Taking this information into account and
such other information as is available to the Local Agency, the Local Agency believes that the
projected cash flow analysis for Fiscal Year 2009-2010 is reasonable and is based on reasonable
assumptions.
OHS \Vest:2fi0611462
3.6. All of the proceeds of the Note, together with earnings thereon, less amounts
allocable to the Local Agency's costs of issuance set forth in the Note Participation Purchase
Agreement, will be deposited into the Proceeds Fund established under the Trust Agreement.
3.7. The Note will be repaid from the general funds of the Local Agency received after
all Note Proceeds are spent as described above. The moneys to be so used will be separately
accounted for until used to repay the Note.
38 All of the proceeds of the Note, together with earnings thereon, will be deposited
into the Local Agency's General Fund (the "General Fund") or a special fund created solely to
hold proceeds of the Note (the "Special Note Fund"). Note proceeds, together with earnings
thereon, so deposited may be withdrawn and expended by the Local Agency on any given day
during Fiscal Year 2009-2010 for any purpose for which the Local Agency is authorized to
expend funds from its General Fund, but only after exhausting all funds that are available
amounts as of such given day, and for purposes of this requirement, available amounts excludes
amounts that are held or set aside in a reasonable working capital reserve that is limited to either
ten percent (10%) of the amount of the Note or the lesser of either (i) five percent (5%) of the
Local Agency expenditures paid out of current revenues during Fiscal Year 2008-2009 or (ii) the
amount that the Local Agency has historically and customarily maintained as a working capital
reserve; provided, that if on the date that is five (5) months from the date of issuance of the Note
or on any date thereafter, it appears that all remaining amounts in the Special Note Fund (or, if
appropriate, all remaining proceeds of the Note, including earnings thereon, held in the General
Fund) will not have been so withdrawn and spent by the date that is six (6) months from the date
of issuance of the Note, the Local Agency shall promptly notify Bond Counsel and, to the extent
of its power and authority, comply with the instructions from Bond Counsel as to the means of
satisfying the rebate requirements of Section 148 of the Code. The working capital reserve shall
be funded with any revenues of the Local Agency's General Fund but will not be funded with
proceeds of the Note. The working capital reserve will be tracked and administered as a separate
account or subaccount within the General Fund.
On the basis of the facts, estimates and circumstances in existence on the date of delivery,
it is not expected that the proceeds of the Note will be used in a manner that would cause the
Note to be an issue of arbitrage bonds within the meaning of Section 148 of the Code.
3.9. To the best knowledge and belief of the undersigned, there are no other facts,
estimates, or circumstances which would materially change the foregoing statements, and the
foregoing expectations are reasonable.
3.10. The Local Agency understands that Bond Counsel will rely upon this Certificate
in giving its opinion that interest payable with respect to the Note Participations is excluded from
federal gross income.
IV. REQUEST TO TRUSTEE, CERTIFICATIONS RELATING THERETO AND
SIGNATURE CERTIFICATIONS OF THE LOCAL AGENCY
4.1. The Trustee is authorized and is hereby requested to execute and deliver the Note
Participations, upon receipt of the purchase price of the Note of the Local Agency together with
OHS \\-est 26(161 1462
the aggregate purchase price of all other notes of Local Agencies participating in the Program,
whose notes will be pooled with the Local Agency's Note in connection with the issuance of the
Note Participations.
4.2. The Trustee is hereby directed to deposit the proceeds of the Note in the amounts
as set forth in the Pricing Confirmation Supplement into the Costs of Issuance Fund and in the
Proceeds Fund.
4.3. Upon the deposit of proceeds as set forth in Section 4.2 hereof, the Trustee is
requested and authorized to pay, from amounts held for the benefit of the Local Agency in the
Proceeds Account within the Proceeds Fund, the amounts on deposit in such Proceeds Account,
as indicated in Schedule I of the Pricing Confirmation Supplement to the Note Participation
Purchase Agreement, to the Local Agency by wire or check. If the Local Agency is to receive
such amounts by wire, the Local Agency shall provide the Trustee with appropriate wiring
instructions for the financial institution which will receive such amounts.
4.4. The amount requisitioned hereby will be applied to a purpose for which the Local
Agency is authorized to use and expend funds from the general fund of the Local Agency and
pending such application will be invested in investments which are legal for the investment of
funds of the Local Agency.
4.5. As of the date hereof, no event has occurred and is continuing which constitutes
an Event of Default under the Resolution or would constitute an Event of Default but for the
requirement that notice be given, or time elapse, or both.
OHS \Vest:16061 1461
4.6. .. The following named persons are duly elected (or appointed), qualified and acting
officers of the Local Agency presently holding the offices set forth opposite their respective
names below and by execution hereof each certifies that the signatures of the other officer or
officers hereto are the genuine signatures of such officer or officers (signatures of the officers
executing the Note, the Trust Agreement and the Note Participation Purchase Agreement must
appear below):
AUTHORIZED REPRESENTATIVES OF CITY OF SAN BERNARDINO:
NAME
TITLE
SIGNATURE
Mayor
City Clerk
City Manager
.. Please complete the following items of information, including the name of the Local Agency's
Authorized Representatives and the signatures of such Authorized Representatives.
OHS \\'esL26061 1462
(c) The Local Agencies hereby agree to pay to the Bank, upon each Draw
under the Letter of Credit in accordance with its terms, a sum equal to equal to $[250.00],
payable on the date of the Drawing.
(d) The Local Agencies hereby agree to pay to the Bank, upon each
amendment of the Letter of Credit, a fee of $[500.00] together with all costs and expenses of the
Bank (including reasonable attorneys' fees) incurred related thereto.
(e) The Local Agencies hereby agree to payor cause the Trustee to pay to the
Bank, or directly to such counsel, on the Commission Payment Date the fees and disbursements
of the Bank's counsel incurred in connection with the preparation and negotiation of this
Agreement.
Section 2.03. Additional Pavments. If any change in any law or regulation of the
United States or in the interpretation thereof by any court or administrative or goverrunental
authority of the United States charged with the administration thereof, shall either (i) impose,
modify, or deem applicable any reserve, special deposit, capital adequacy, insurance assessment,
fee, or similar requirement against letters of credit issued by the Bank, including any requirement
affecting the amount of capital required or expected to be maintained by the Bank or any
corporation controlling the Bank, or (ii) impose on the Bank any other condition relating, directly
or indirectly, to this Agreement or the Letter of Credit, and the result of any event referred to in
(i) or (ii) above shall be to increase the cost to the Bank of issuing or maintaining the Letter of
Credit, including a determination that the amount of capital required is increased by or based
upon the existence of this Agreement or the Letter of Credit, then the Bank shall send to Trustee
(to be sent by the Trustee to the Local Agencies) written notice of any such increase (which
notice shall set forth in reasonable detail the events giving rise to such increased cost, including
increase in capital, and the basis of the Bank's calculation thereof), and the Local Agencies shall
pay to the Bank such additional amounts as shall be demanded by the Bank as sufficient to
compensate the Bank for such increased cost, including increase in capital, in accordance with
Section 3.04 hereof. A certificate as to the calculation for determining the amount of such
increased cost, including increase in capital, incurred by the Bank as a result of any event
referred to in clause (i) or (ii) of this Section 2.03 submitted by the Bank to the Local Agencies
shall be conclusive, absent manifest error, as to the amount thereof.
ARTICLE III
REIMBURSEMENT
Section 3.01. Reimbursement Oblil!ationEach Local Agency agrees to pay, or cause
the Trustee to pay, to the Bank from amounts available therefor under the Trust Agreement, the
amount of any Drawing applied to the payment of principal of or interest on such Local
Agency's Note not later than I :00 p.m. California time on the date of payment by the Bank of
such Drawing. Upon payment by the Bank of any Drawing applied to the payment of principal
of or interest on a Local Agency's Note, the principal amount of which is not reimbursed to the
Bank by I :00 p.m. California time as aforesaid. the Bank shall be deemed by the Trustee to have
purchased such Local Agency's Note (or a fraction thereof) in the principal amount equal to the
aggregate amount of such Drawing. Such Note thereupon becomes a Defaulted Note as evidence
OHS Wes!26061777."3
- 6-
Section 3.04. Place. Time and Manner of Pavment. All payments by or on behalf of
each Local Agency to the Bank under this Agreement shall be made in lawful currency of the
United States and in immediately available funds, at the Bank's office at
, Attention: Commercial Loan Services, or by wire transfer to the
Bank's account No. at ABA ,Reference: California Communities
Tax and Revenue Anticipation Note Program and shall be made without any set-off,
counterclaim, or deduction whatsoever. In the case of payments of the obligations under Section
3.01 hereof, each Local Agency shall cause the Trustee to deliver to the Bank, accompanying
such payments, written notice (which may be sent by telecopy, promptly confirmed in writing) of
the Local Agency or Local Agencies whose Notes have become Defaulted Notes. Each Local
Agency hereby agrees to pay, or cause the Trustee to pay, to the Bank interest on any and all
amounts owed by such Local Agency due and unpaid hereunder from the date such amounts
become due until paid in full (after as well as before judgment), payable on demand, at the
Default Rate, in accordance with the provisions of this Agreement. In the case of payments
owed under Sections 2.03, 10.01, or 12.03 hereof, upon receipt of notice from the Bank of
amounts due to the Bank pursuant to such relevant section, payment of such amounts shall be
due and payable not later than thirty (30) days after delivery of such notice. Each Local Agency
shall instruct the Trustee to remit to the Bank any amounts allocable to each liable Local Agency
and then available under the Trust Agreement for the payment of such amounts owed to the
Bank. In the event that the moneys available from the Trustee are insufficient to pay such
amounts owed to the Bank, each liable Local Agency shall promptly remit its allocable shares of
the amounts necessary to pay the amounts owed to the Bank. Each Local Agency shall pay to
the Bank, by the thirtieth (30th) day after delivery of such notice from the Bank, any amounts
owed to the Bank. Interest at the Default Rate shall accrue on any amounts owed to the Bank
which remain outstanding after such thirtieth (30th) day, until payment in full of such amounts,
and such interest shall be allocable among those Local Agencies whose allocable share remains
due and owing. In the event that the date specified for any payment hereunder is not a Business
Day, such payment shall be made not later than the next following Business Day, and interest
shall be paid at the rate provided for herein on any such payment to the Business Day on which
such payment is made.
Section 3.05. Limitation on Source of Pavment. Notwithstanding anything to the
contrary herein or in any Note or document referred to herein, no Local Agency shall incur any
obligation under this Article III, except to the extent payable from unencumbered revenues
attributable to its 2009-2010 fiscal year.
ARTICLE IV
CONDITIONS PRECEDENT TO ISSUANCE OF THE LETTER OF CREDIT
Section 4.01. Documents to be Received. The Bank's obligation to issue the Letter of
Credit as set forth in Section 2.01 hereof is subject to the conditions precedent that, on or prior to
the Date of Issuance the Bank shall receive the following documents, each dated the Date of
Issuance, in form and substance satisfactory to the Bank:
(a)
this Agreement, duly executed by the Local Agencies;
OHS West:2606P7753
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the obligations of the Local Agency under the Trust Agreement or its Resolution has occurred
and is continuing, or would result directly or indirectly from the issuance of the Letter of Credit
or any other matter pertaining to this transaction.
ARTICLE V
OBLIGATIONS ABSOLUTE
Section 5.01. Obligations Absolute. The obligations of the Local Agencies under this
Agreement shall be absolute, unconditional, and irrevocable, and shall be paid or performed
strictly in accordance with the terms of this Agreement, under all circumstances whatsoever,
including, without limitation, the following circumstances:
(a) any lack of validity or enforceability of the Letter of Credit or any Note
Documents;
(b) any amendment or waiver of or any consent to depart from the terms
hereof or from all or any of the Note Documents;
(c) the existence of any claim, set-off, defense, or other right that any Local
Agency may have at any time against the Trustee, any owner of any Note Participation, any
beneficiary, or any transferee of the Letter of Credit (or any Person for whom the Trustee, any
such beneficiary, or any such transferee may be acting), the Bank, or any other Person, whether
in connection with this Agreement or any of the Note Documents, any transactions contemplated
hereby or thereby, or any umelated transaction;
(d) any statement or any other documents presented under the Letter of Credit
proving to be forged, fraudulent, invalid, or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect whatsoever;
(e) any non-application or misapplication by the Trustee or otherwise of the
proceeds of any Drawing;
(f) payment by the Bank under the Letter of Credit against presentation of a
draft or certificate that does not comply with the terms of the Letter of Credit;
(g) the failure by the Bank to honor any Drawing under the Letter of Credit or
to make any payment demanded under the Letter of Credit on the ground that the demand for
such payment does not conform to the terms and conditions of the Letter of Credit; and
(h) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing;
provided, however, that nothing contained in this Article V shall affect the standard of care
applicable to the Bank in the context of Section 1 1.01 hereof or be deemed to be a waiver by the
Local Agencies of any rights they may have under said Section 11.01.
OHS WeSl260617i753
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Governmental Approval is necessary for the due execution, delivery and performance by the
Local Agency of this Agreement or such Note Documents.
Section 6.05. Compliance with Applicable Law. The Local Agency is in compliance
with all Applicable Law, including all Governmental Approvals, except for non-compliancies
that, singly or in the aggregate, have not had and will not have a Materially Adverse Effect on
the Local Agency or the Local Agency's obligations pursuant to this Agreement and the Note
Documents to which it is a party.
Section 6.06. Absence of Liti!!ation. There is no action, suit, proceeding, inquiry, or
investigation, at law or in equity, before or by any court, arbitrator, governmental or other board,
body or official, pending or, to the knowledge of the Local Agency, threatened against or
affecting the Local Agency, questioning the validity of any proceeding taken or to be taken by
the Local Agency in connection with the execution, delivery, and performance by the Local
Agency of the Note Documents to which it is a party or this Agreement or seeking to prohibit,
restrain, or enjoin the execution, delivery, or performance by the Local Agency of any of the
foregoing, nor, to the knowledge of the Local Agency, is there any basis therefor, wherein an
unfavorable decision, ruling, or finding (i) would adversely affect the validity or enforceability
of, or the authority or ability of the Local Agency to perform its obligations under, the Note
Documents to which it is a party or this Agreement, (ii) would adversely affect the validity of the
Act or any provision thereof material to the transactions contemplated by this Agreement or any
of the Note Documents, or (iii) would adversely affect the exclusion of interest on the Notes
from gross income for federal income tax purposes.
Section 6.07. Absence of Defaults. The Local Agency is not in default in the
performance, observance, or fulfillment of any of the obligations, covenants, or conditions
contained in any agreement or instrument to which the Local Agency is a party or by which the
Local Agency or any of its Property is bound or any judgments, decrees, or orders, except for
defaults that, singly or in the aggregate, have not had and will not have a Materially Adverse
Effect on the Local Agency's ability to perform its monetary obligations to the Bank pursuant to
this Agreement or any of the Note Documents to which it is a party.
Section 6.08. Disclosure. The information contained in the Official Statement,
including any appendices, exhibits, or attachments thereto (other than information furnished to
the Underwriter by the Bank for inclusion in the Official Statement and information relating to
other Local Agencies) as such Official Statement (other than such information with respect to the
Bank and other Local Agencies) may have been amended or supplemented, is true and correct,
and does not contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements contained therein, in light of the circumstances under which
they were made, not misleading. There are no facts pertaining to the Local Agency that the
Local Agency has failed to disclose to the Bank through the Official Statement or otherwise that,
individually or in the aggregate, materially adversely affect or. so far as the Local Agency can
foresee, will materially adversely affect the operations, affairs, properties, condition (financial or
otherwise), or prospects of the Local Agency or the Program.
Section 6.09. Tax-Exempt Status. The Local Agency has not taken any action or
omitted to take any action, and knows of no action taken or omitted to be taken by any other
OHS West:260617775J
- 12-
CREDIT AGREEMENT
Dated as of
1,20_
among
CERTAIN LOCAL AGENCIES
NAMED ON SCHEDULE I ATTACHED HERETO
and
[CREDIT PROVIDER]
$
CALIFORNIA COMMUNITIES
TAX AND REVENUE ANTICIPATION NOTE PROGRAM
NOTE PARTICIPATIONS
SERIES 2009A-l
OHS West:2606177753
ARTICLE I
Section 1.01.
Section 1.02.
Section 1.03.
Section 1.04.
ARTICLE II
Section 2.01.
Section 2.02.
Section 2.03.
ARTICLE III
Section 3.01.
Section 3.02.
Section 3.03.
Section 3.04.
Section 3.05.
ARTICLE IV
Section 4.01.
Section 4.02.
ARTICLE V
Section 5.01.
ARTICLE VI
Section 6.01.
Section 6.02.
Section 6.03.
Section 6.04.
Section 6.05.
Section 6.06.
Section 6.07.
Section 6.08.
Section 6.09.
ARTICLE VII
Section 7.01.
OHS West:26061 7775_3
TABLE OF CONTENTS
Page
CERTAIN DEFINED TERMS........................................................................2
Definitions............................................................................................ 2
Accounting Matters.............................................................................. 5
Use of Phrases...................................................................................... 5
Computation of Time Periods.............................................................. 5
LETTER OF CREDIT; FEES......................................................................... 5
Amount and Terms of Letter of Credit ................................................ 5
Fees...................................................................................................... 5
Additional Payments............................................................................ 6
REIMBURSEMENT .............. ............... ... ....... ..... ........................................... 6
Reimbursement Obligation .......... ........ ......................... ........... ........... 6
Evidence of Debt.................................................................................. 7
Credit for Amount Paid Pursuant to Trust Agreement or
Resolutions........... ................................................................................ 7
Place, Time and Manner ofPayment................................................... 8
Limitation on Source of Payment ........................................................ 8
CONDITIONS PRECEDENT TO ISSUANCE OF THE LETTER OF
CREDIT........................................................................................................... 8
Documents to be Received.................................................................. 8
Additional Conditions Precedent .........................................................9
OBLIGATIONS ABSOLUTE..................................................................... 10
Obligations Absolute .....................................................................10
REPRESENT A TIONS AND WARRANTIES OF THE LOCAL
AGENCIES .................................................................................................... II
Organization, Powers, Etc.................................................................. II
Authorization; Absence of Conflicts, Etc .......................................... II
Binding Obligation....... ........................ .................. ............................ II
Governmental Approvals ................................................................... II
Compliance with Applicable Law..................................................... 12
Absence of Litigation....... .... ........ .......... ........................ ........... 12
Absence ofDefauIts ..... ....... ...... ........... .......................... ............. 12
Disclosure ........................ ........... ......................... ............ 12
Tax-Exempt Status....... .......... ......... .......... ............................... 12
AFFIRMATIVE COVENANTS .......................................................... 13
Compliance with Agreements ...................................................... 13
-]-
Section 7.02.
Section 7.03.
Section 7.04.
Section 7.05.
Section 7.06.
Section 7.07.
Section 7.08.
Section 7.09.
Section 7.10.
Compliance with Applicable Laws .................................................... 13
Accounting and Reports............. ........................... ..................... ..... ... 13
Notice of Defau1t....................................... ................... ............. ......... 13
Litigation Notice.... ................. ...... ........ ..... ............................... ..... .... 13
Further Assurances...................................................... ....................... 13
Removal of the Trustee...................................................................... 14
Preservation of Existence................................................................... 14
Defaulted Notes .................................................................................14
Security for Notes ...... ...... .... ............................ ..................... ............. 14
ARTICLE VIII NEGATIVE COVENANTS .......................................................................... 14
Section 8.01.
Section 8.02.
Section 8.03.
Section 8.04.
Section 8.05.
Note Documents............. ............................ ........................................ 14
Maintenance of Tax-Exempt Status of Notes ....................................15
Liquidation...................................... .......................................... ......... 15
Merger .................................. ............... .................................. ............. 15
Encumbrances........................................... ......................................... 15
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES ................................................ 15
Section 9.01.
Section 9.02.
Events of Default .............................. ......... ............................... ......... 15
Remedies................................. ...................................................... ..... 16
Section 10.01.
lNDEMNIFICA TION............ ............. ........................................................... 16
Indemnification.... .............................................................................. 16
ARTICLE X
Section 11.01.
NATURE OF BANK'S DUTIES .................................................................. 17
Nature of Bank's Duties.....................................................................17
ARTICLE XI
ARTICLE XII
MISCELLANEOUS ........ ....... ......... .............................................. ................ 18
Section 12.01.
Section 12.02.
Section 12.03.
Section 12.04.
Section 12.05.
Section 12.06.
Section 12.07.
Section 12.08.
Section 12.09.
Section 12.10.
Section 12.11.
Section 12.12.
Section 12.13.
Section 12.14.
Section 12.15.
Section 12.16.
OHS \Vest:~60617775.3
Amendments; Waivers ....................................................................... 18
Survival of Representations and Warranties...................................... 18
Expenses .......................................... ............ .............................. .... .... 19
Notices .. ........................................ ................................................. .... 20
Continuing Obligation................... .............................................. ...... 21
Participation................................................ ....................................... 21
Satisfaction Requirement ..... ...... ........................................................ 21
Governing Law ..................................................................... .............21
Counterparts................................................................................... .... 21
Severability........................................................................................ 22
Headings ...................... ........... ...... ......... ......... ............. .......... ............ 22
Entire Agreement; No Agency......................................................... 22
No Third-Party Benefit ..................................................................... 22
Consent to V enue ............................................................................... 22
Waiver of Jury TriaL.............. ................................ ........................ 23
Limitation of Liability......................................... .................. 23
-11-
CREDIT AGREEMENT
This Credit Agreement, dated as of I, 20 (the "Agreement") among the
LOCAL AGENCIES NAMED IN SCHEDULE I ATTACHED HERETO (the "Local
Agencies"), and [CREDIT PROVIDER] (the "Bank").
RECIT ALS
WHEREAS, the Local Agencies have determined to simultaneously issue their Tax and
Revenue Anticipation Notes (individually, a "Note" and collectively, the "Notes") and to deposit
the Notes with the Wells Fargo Bank, National Association, as trustee (the "Trustee") under the
Trust Agreement, dated as of I, 20_ (the "Trust Agreement"), by and between the
Trustee and the Local Agencies, and participate in the California Communities Tax and Revenue
Anticipation Note Program (the "Program"); and
WHEREAS, each Local Agency has designated the Trustee to act as its trustee with
respect to the funds received by the Local Agency from the sale of its Note and with respect to
the moneys paid by the Local Agency in satisfaction of its Note; and
WHEREAS, in consideration of such deposits and the execution and entering into of the
Trust Agreement, the Trustee has agreed to execute and deliver note participations, as more fully
described in the Trust Agreement (the "Note Participations") in an aggregate principal amount
equal to the aggregate principal amount of the Notes, each evidencing and representing a
proportionate, undivided interest in the Notes; and
WHEREAS, in order to provide funds for the payment, in whole or in part, as the case
may be, when due of principal of and interest on the Notes at the times and in accordance with
the conditions provided therein, the Local Agencies have requested that the Bank issue to the
Trustee, for the account of the Local Agencies, the Bank's irrevocable letter of credit (the "Letter
of Credit") in the aggregate amount specified below, which Letter of Credit may be drawn upon
by the Trustee, to the extent of the amount available under the Letter of Credit, to pay principal
of or interest on the Notes when such amounts are due; and
WHEREAS, the issuance of the Notes and the approval of the execution and delivery of
the Trust Agreement and this Agreement have been in all respects duly and validly authorized by
the legislative bodies of the Local Agencies pursuant to resolutions duly adopted (collectively,
the "Resolutions").
NOW, THEREFORE, in consideration of the mutual promises contained herein and
other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
-1 -
ai-IS West:260617775_J
ARTICLE I
CERTAIN DEFINED TERMS
Section 1.01. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
"Act" means the California Government Code, Sections 53850-53858, both inclusive, as
from time to time supplemented or amended.
"Al!reement" means this Credit Agreement, as amended from time to time in accordance
with its terms.
"Amount Available" means, from time to time, with respect to the Letter of Credit, the
amount as to which the Bank is obligated to honor Drawings under the Letter of Credit and shall
be equal, at any time, to the Commitment at such time less the total amount of unreimbursed
Drawings.
"Annlicable Law" means all applicable provisions of all constitutions, statutes
(including the Act), rules, regulations, and orders of all governmental and non-governmental
bodies, all Governmental Approvals and all orders, judgments, and decrees of all courts and
arbitrators.
"Authoritv" means the California Statewide Communities Development Authority, duly
organized and existing under and by virtue of the laws of the State of California.
"Bank" means [Credit Provider] and its successors and assigns. The Bank constitutes a
Credit Provider as defined in the Resolutions.
"Business Dav" has the meaning set forth in the Trust Agreement.
"Commission Pavment Date" means the Date ofIssuance.
"Commitment" means $
"Date of Issuance" means the date of initial issuance and delivery by the Bank of the
Letter of Credit as set forth in Section 2.01 hereof.
"Default" means any of the events specified in Section 9.01 hereof which, with the
passage of time or giving of notice or both, would constitute an Event of Default.
"Default Rate" means the rate of interest per annum payable with respect to each
Defaulted Note equal to the lesser of (i) the Prime Rate plus [4]% or (ii) the maximum rate
permitted by applicable law when applied to the unreimbursed amount of the proceeds of the
Drawings used to pay principal of and interest on a Note, in each case to be calculated on the
basis of a 360-day year, actual number of days elapsed, with the interest rate being adjusted each
time that Prime Rate changes.
0HS \Vest:260617775.3
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"Defaulted Note" means a Note the principal and interest on which has been paid in
whole or in part with the proceeds of a drawing or claim under the Letter of Credit which
remains not fully reimbursed pursuant to the terms of this Agreement.
"Drawine:" means a drawing under the Letter of Credit in accordance with its terms.
"Event of Default" has the meaning set forth in Section 9.01 hereof.
"Expiration Date" means the last day a Drawing is available under the Letter of Credit.
"Federal Funds Rate" means, for any day, the rate per annum (rounded upwards, if
necessary, to the nearest IIlOOth of 1%) equal to the weighted average of the rate of overnight
Federal Funds transactions with members of the Federal Reserve System arranged by Federal
Funds brokers, quoted for any day which is a Business Day, by three Federal Funds brokers of
recognized standing selected by the Bank.
"Governmental Approval" means an authorization, permit, consent, approval, license,
or exemption from, registration or filing with, or report to, any governmental or regulatory unit.
"Investment Al!reement" means the Investment Agreement entered into by the Trustee
acting on behalf of the Local Agencies and , dated as of I, 20_, which
has been approved in advance by the Bank and is acceptable to the Rating Agency, providing for
the investment of funds held by the Trustee under the Trust Agreement.
"Letter of Credit" means the Letter of Credit dated the Date of Issuance and issued by
the Bank pursuant to the Agreement.
"Lien," as applied to the Property of any Person, means (in each case, whether the same
is consensual or nonconsensual or arises by contract, operation of law, legal process, or
otherwise): (a) any mortgage, lien, pledge, attachment, charge, lease evidencing a capitalized
lease obligation, conditional sale, or other title retention agreement, or other security interest or
encumbrance of any kind in respect of any Property of such Person, or upon the income or
profits therefrom; and (b) any arrangement, express or implied, under which any Property of
such Person is transferred, sequestered, or otherwise identified for the purpose of securing
indebtedness or performance of any other obligation in priority to the payment of the general,
unsecured creditors of such Person.
"Local Al!encies" means the Local Agencies named in Schedule I hereto and their
successors and assigns.
"Materiallv Adverse Effect" means, (a) (i) with respect to any Person. a materially
adverse effect upon such Person's business, assets, liabilities, financial condition, results of
operations, or business prospects and (ii) with respect to a group of Persons as a whole, a
materially adverse effect upon such Persons' businesses, assets, liabilities, financial conditions,
results of operations, or business prospects taken as a whole and (b) with respect to any
agreement or obligation, a materially adverse effect upon the binding nature, validity, or
enforceability of such agreement or obligation.
OHS Wesl:260617775.3
- 3 -
"Note Documents" means, at any time, each of the following as in effect or as
outstanding, as the case may be, at such time: (i) the Notes, (ii) the Trust Agreement, (iii) the
Resolutions, (iv) the Investment Agreement, (v) the Purchase Agreement, (vi) the Note
Participations, and (vii) the closing certificates delivered by the Local Agencies in connection
with the issuance of the Notes.
"Note Participations" means the $XXX,OOO,OOO California Communities Tax and
Revenue Anticipation Note Program Note Participations Series 2009A-l, to be executed and
delivered by the Trustee pursuant to the Trust Agreement.
"Notes" means the $
respective Tax and Revenue
Resolutions.
aggregate principal amount of the Local Agencies'
Anticipation Notes, to be issued pursuant to the separate
"Official Statement" means the official statement of the Program dated , 2009,
relating to the sale of the Note Participations, including any amendment or supplement thereto
and any documents incorporated therein by reference.
"Permitted Investments" has the meaning set forth in the Trust Agreement.
"Person" means an individual, corporation, partnership, trust, or unincorporated
organization, or a government or any agency or political subdivision thereof.
"Prime Rate" means the rate announced, from time to time, by the Bank in
as its "prime rate"; provided, however, if the Bank does not announce such a prime
rate, then Prime Rate shall be the so-called prime rate announced by [Citibank, N.A].
"Principal Pavment Date" has the meaning set forth in the Trust Agreement.
"Pro!!ram" means the California Communities Tax and Revenue Participation Note
Program, as established by the Note Documents, pursuant to which the Note Participations are
executed and delivered to assist Local Agencies in financing cash flow deficits.
"Propertv" means any interest in any kind of property or assets, whether real, personal
or mixed, or tangible or intangible.
"Purchase A!!reement" means, collectively, those certain Purchase Agreements by and
between the respective Local Agencies and the Underwriter relating to the Notes as evidenced
and represented by the Note Participations.
"Ratin!! A!!encv" has the meaning set forth in the Trust Agreement.
"Resolutions" means the several resolutions adopted by the Local Agencies authorizing
the issuance and sale of the Notes.
"State" means the State of California.
"Termination Date" means July _,2010.
OHS West:26061 T7753
.4-
"Trust Agreement" means the Trust Agreement dated as of 1, 20_ by and
between the Local Agencies and the Trustee, as the same may from time to time be amended or
supplemented, provided the provisions of Section 8.01 hereof are complied with.
"Trustee" means Wells Fargo Bank, National Association, the trustee under the Trust
Agreement, or any successor thereto as trustee appointed pursuant to the Trust Agreement.
"Underwriter" means Barclays Capital Inc., on behalf of itself as senior manager, J.P.
Morgan Securities Inc., as co-senior manager, and the other co-managers.
Section 1.02. Accounting Matters. All computations utilized by the Local Agencies in
complying with any covenant contained herein shall, unless there is an express direction to the
contrary, be computed on a basis consistent with generally accepted accounting principles for
state and local governments and any applicable guidance from the Governmental Accounting
Standards Board as from time to time in effect, as appropriate.
Section 1.03. Use of Phrases. "Herein," "hereby," "hereunder," "hereinbefore,"
"hereinafter," and other equivalent words refer to this Agreement as an entirety and not solely to
the particular portion thereof in which any such word is used. The definitions set forth in Section
1.01 hereof include both singular and plural. Whenever used herein, any pronoun shall be
deemed to include both singular and plural and to cover all genders.
Section 1.04. Computation of Time Periods. In this Agreement, in the computation of
a period of time from a specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but excluding."
ARTICLE II
LETTER OF CREDIT; FEES
Section 2.01. Amount and Terms of Letter of Credit. The Bank agrees, on the terms
and subject to the conditions hereinafter set forth, including without limitation the conditions set
forth in Article IV hereof, to issue the Letter of Credit on , 2009. The Letter of Credit
will be issued in an amount equal to $ . The Letter of Credit shall be issued to the
Trustee for the account of the Local Agencies substantially in the form of Exhibit A hereto, with
such changes to the form set forth in Exhibit A as the Local Agencies and the Bank shall agree in
writing are necessary or advisable.
Section 2.02. FeesEach Local Agency hereby agrees to payor cause the Trustee to pay
to the Bank, on the Commission Payment Date, its ratable share of a letter of credit fee equal to
_ % per annum on the Commitment, calculated on the basis of a 360-day year and actual
number of days from the Commission Payment Date until the Expiration Date, and its ratable
share of an up-front fee equal to _% of the Commitment.
(b) The Local Agencies hereby agree to pay to the Bank, upon each transfer of
the Letter of Credit in accordance with its terms, a transfer fee equal to $[500.00].
OHS West:260617775 3
- 5 -
(c) The Local Agencies hereby agree to pay to the Bank, upon each Draw
under the Leiter of Credit in accordance with its terms, a sum equal to equal to $[250.00],
payable on the date of the Drawing.
(d) The Local Agencies hereby agree to pay to the Bank, upon each
amendment of the Leiter of Credit, a fee of $[500.00] together with all costs and expenses of the
Bank (including reasonable attorneys' fees) incurred related thereto.
(e) The Local Agencies hereby agree to payor cause the Trustee to pay to the
Bank, or directly to such counsel, on the Commission Payment Date the fees and disbursements
of the Bank's counsel incurred in connection with the preparation and negotiation of this
Agreement.
Section 2.03. Additional Payments. If any change in any law or regulation of the
United States or in the interpretation thereof by any court or administrative or governmental
authority of the United States charged with the administration thereof, shall either (i) impose,
modify, or deem applicable any reserve, special deposit, capital adequacy, insurance assessment,
fee, or similar requirement against letters of credit issued by the Bank, including any requirement
affecting the amount of capital required or expected to be maintained by the Bank or any
corporation controlling the Bank, or (ii) impose on the Bank any other condition relating, directly
or indirectly, to this Agreement or the Leiter of Credit, and the result of any event referred to in
(i) or (ii) above shall be to increase the cost to the Bank of issuing or maintaining the Leiter of
Credit, including a determination that the amount of capital required is increased by or based
upon the existence of this Agreement or the Leiter of Credit, then the Bank shall send to Trustee
(to be sent by the Trustee to the Local Agencies) written notice of any such increase (which
notice shall set forth in reasonable detail the events giving rise to such increased cost, including
increase in capital, and the basis of the Bank's calculation thereof), and the Local Agencies shall
pay to the Bank such additional amounts as shall be demanded by the Bank as sufficient to
compensate the Bank for such increased cost, including increase in capital, in accordance with
Section 3.04 hereof. A certificate as to the calculation for determining the amount of such
increased cost, including increase in capital, incurred by the Bank as a result of any event
referred to in clause (i) or (ii) of this Section 2.03 submitted by the Bank to the Local Agencies
shall be conclusive, absent manifest error, as to the amount thereof.
ARTICLE III
REIMBURSEMENT
Section 3.01. Reimbursement Obligation Each Local Agency agrees to pay, or cause
the Trustee to pay, to the Bank from amounts available therefor under the Trust Agreement, the
amount of any Drawing applied to the pajment of principal of or interest on such Local
Agency's Note not later than 1 :00 p.m. California time on the date of payment by the Bank of
such Drawing. Upon payment by the Bank of any Drawing applied to the payment of principal
of or interest on a Local Agency's Note, the principal amount of which is not reimbursed to the
Bank by I :00 p.m. California time as aforesaid. the Bank shall be deemed by the Trustee to have
purchased such Local Agency's Note (or a fraction thereof) in the principal amount equal to the
aggregate amount of such Drawing. Such Note thereupon becomes a Defaulted Note as evidence
OHS Wcst:2(JOt,] 7775.3
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of a Local Agency's reimbursement obligation under this Section 3.01. Upon payment by the
Bank of a Drawing with respect to any Note or a fraction of any Note, the Bank shall succeed
and be subrogated to the owners of the Note Participations with respect to such Note or fraction
thereof, and the Trustee shall hold such Note in the name of the Bank for the benefit of the Bank
and for the benefit of the Note Participation owners (to the extent such Note is not covered by the
Letter of Credit) in the manner specified in the Trust Agreement.
(b) Interest shall accrue on the obligation to reimburse the Bank for the
amount of any Drawing from the date of such Drawing, to the date of reimbursement thereof, at
the Default Rate, payable on demand, such obligation to be evidenced by such Defaulted Note,
provided that no such interest shall accrue if the Bank is reimbursed for the full amount of such
Drawing prior to I :00 p.m. California time on the date of such Drawing.
Section 3.02. Evidence of Debt. The Bank shall open and maintain, in accordance with
its usual practice, a record evidencing the amount of any Drawing and accrued interest
thereunder and the amount of all payments hereunder. The records of the Bank shall, absent
manifest error, be conclusive evidence of the existence and the amount of the reimbursement
obligation of each of the Local Agencies hereunder and all payments made by each of the Local
Agencies with respect thereto.
Section 3.03. Credit for Amount Paid Pursuant to Trust Al!reement or Resolutions.
To the extent any amounts are received by the Bank pursuant to the Trust Agreement from the
Trustee or pursuant to the Resolutions from the Local Agencies, the Bank shall apply such
amounts first to the interest due on the obligations owing to the Bank, then to the principal of
such obligations owing to the Bank, as appropriate, and then to any other obligations owing to
the Bank pursuant to this Agreement.
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Section 3.04. Place, Time and Manner of Pavment. All payments by or on behalf of
each Local Agency to the Bank under this Agreement shall be made in lawful currency of the
United States and in immediately available funds, at the Bank's office at
, Attention: Commercial Loan Services, or by wire transfer to the
Bank's account No. at ABA , Reference: California Communities
Tax and Revenue Anticipation Note Program and shall be made without any set-off,
counterclaim, or deduction whatsoever. In the case of payments of the obligations under Section
3.01 hereof, each Local Agency shall cause the Trustee to deliver to the Bank, accompanying
such payments, written notice (which may be sent by telecopy, promptly confirmed in writing) of
the Local Agency or Local Agencies whose Notes have become Defaulted Notes. Each Local
Agency hereby agrees to pay, or cause the Trustee to pay, to the Bank interest on any and all
amounts owed by such Local Agency due and unpaid hereunder from the date such amounts
become due until paid in full (after as well as before judgment), payable on demand, at the
Default Rate, in accordance with the provisions of this Agreement. In the case of payments
owed under Sections 2.03, 10.01, or 12.03 hereof, upon receipt of notice from the Bank of
amounts due to the Bank pursuant to such relevant section, payment of such amounts shall be
due and payable not later than thirty (30) days after delivery of such notice. Each Local Agency
shall instruct the Trustee to remit to the Bank any amounts allocable to each liable Local Agency
and then available under the Trust Agreement for the payment of such amounts owed to the
Bank. In the event that the moneys available from the Trustee are insufficient to pay such
amounts owed to the Bank, each liable Local Agency shall promptly remit its allocable shares of
the amounts necessary to pay the amounts owed to the Bank. Each Local Agency shall pay to
the Bank, by the thirtieth (30th) day after delivery of such notice from the Bank, any amounts
owed to the Bank. Interest at the Default Rate shall accrue on any amounts owed to the Bank
which remain outstanding after such thirtieth (30th) day, until payment in full of such amounts,
and such interest shall be allocable among those Local Agencies whose allocable share remains
due and owing. In the event that the date specified for any payment hereunder is not a Business
Day, such payment shall be made not later than the next following Business Day, and interest
shall be paid at the rate provided for herein on any such payment to the Business Day on which
such payment is made.
Section 3.05. Limitation on Source of Pavment. Notwithstanding anything to the
contrary herein or in any Note or document referred to herein, no Local Agency shall incur any
obligation under this Article III, except to the extent payable from unencumbered revenues
attributable to its 2009-2010 fiscal year.
ARTICLE IV
CONDITIONS PRECEDENT TO ISSUANCE OF THE LETTER OF CREDIT
Section 4.01. Documents to be Received. The Bank's obligation to issue the Letter of
Credit as set forth in Section 2.01 hereof is subject to the conditions precedent that, on or prior to
the Date of Issuance the Bank shall receive the following documents, each dated the Date of
Issuance, in form and substance satisfactory to the Bank:
(a)
this Agreement, duly executed by the Local Agencies;
OHS \Vest:2tJ06P7753
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(b) copies of each of the Note Documents, fully executed on behalf of the
parties thereto, provided that, in the case of the Note Participations, the Bank may receive a
specimen thereof and, in the case of the Notes, the Bank may receive a specimen thereof and
may examine executed Notes;
(c) certified copies of all Governmental Approvals, if any, necessary for the
Local Agencies to execute, deliver, and perform their obligations under this Agreement and the
Note Documents to which they are a party;
(d) an approving opinion of bond counsel which shall be addressed to the
Bank (or a letter addressed to the Bank authorizing the Bank to rely on such opinion) and shall
be in form and substance satisfactory to the Bank concerning such matters as the Bank may
reasonably request;
(e) favorable opinion or opinions of special counsel for each of the Local
Agencies, each of which shall be addressed to the Bank;
(I) a favorable opinion of [the foreign and domestic] counsel to the
investment provider under the Investment Agreement which shall be addressed to the Bank and
shall be in form and substance satisfactory to the Bank concerning such matters as the Bank may
reasonably request;
(g) favorable opInIOns of [the foreign and domestic] counsel to the Bank,
which shall be addressed to the Bank and the Trustee and shall be as to such matters as the Bank
may reasonably request;
(h) written evidence that the Note Participations, taking into consideration the
issuance of the Letter of Credit by the Bank, shall have been rated "_" by Standard & Poor's
and "_" by Moody's Investors Service, and that the ratings are in full force and effect as of
the Date of Issuance; and
(i) such other documents, certificates, instruments, opInIOns (including
reliance letters), approvals (and ifrequested by the Bank, certified duplicates of executed copies
of such approvals), or filings with respect to the Note Documents and this Agreement, as the
Bank or its counsel may reasonably request.
Section 4.02. Additional Conditions Precedent. The Bank's obligation to issue the
Letter of Credit as set forth in Section 2.01 hereof is further subject to the conditions precedent
that (i) each Local Agency participating in the Program shall have been approved by the Bank as
meeting its criteria for participation in the Program and (ii) the Bank shall receive a certificate
signed by:
(a) a duly authorized officer of each Local Agency, dated the Date of
Issuance, to the effect that the representations and warranties of the Local Agency are true and
correct on and as of the Date ofIssuance as though made on and as of the Date of Issuance; and
(b) a duly authorized officer of each Local Agency, dated the Date of
Issuance, to the effect that as of the Date of Issuance, no Default or Event of Default relating to
OHS Wesl:26061 if;) 3
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the obligations of the Local Agency under the Trust Agreement or its Resolution has occurred
and is continuing, or would result directly or indirectly from the issuance of the Letter of Credit
or any other matter pertaining to this transaction.
ARTICLE V
OBLIGATIONS ABSOLUTE
Section 5.01. Oblil!ations Absolute. The obligations of the Local Agencies under this
Agreement shall be absolute. unconditional, and irrevocable, and shall be paid or performed
strictly in accordance with the terms of this Agreement, under all circumstances whatsoever,
including, without limitation, the following circumstances:
(a) any lack of validity or enforceability of the Letter of Credit or any Note
Documents:
(b) any amendment or waiver of or any consent to depart from the terms
hereof or from all or any of the Note Documents;
(c) the existence of any claim, set-off, defense, or other right that any Local
Agency may have at any time against the Trustee, any owner of any Note Participation, any
beneficiary, or any transferee of the Letter of Credit (or any Person for whom the Trustee, any
such beneficiary, or any such transferee may be acting), the Bank, or any other Person, whether
in connection with this Agreement or any of the Note Documents, any transactions contemplated
hereby or thereby, or any unrelated transaction;
(d) any statement or any other documents presented under the Letter of Credit
proving to be forged, fraudulent, invalid, or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect whatsoever;
(e) any non-application or misapplication by the Trustee or otherwise of the
proceeds of any Drawing;
(f) payment by the Bank under the Letter of Credit against presentation of a
draft or certificate that does not comply with the terms of the Letter of Credit;
(g) the failure by the Bank to honor any Drawing under the Letter of Credit or
to make any payment demanded under the Letter of Credit on the ground that the demand for
such payment does not conform to the terms and conditions of the Letter of Credit; and
(h) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing;
provided, however, that nothing contained in this Article V shall affect the standard of care
applicable to the Bank in the context of Section 11.01 hereof or be deemed to be a waiver by the
Local Agencies of any rights they may have under said Section 11.01.
OHS W<:51:260617775_3
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE LOCAL AGENCIES
To induce the Bank to enter into this Agreement and to issue the Letter of Credit, each
Local Agency hereby individually represents and warrants to the Bank that:
Section 6.01. Orl!anization. Powers. Etc. The Local Agency is a local agency within
the meaning of California Government Code Section 53850 and a political subdivision of the
State duly organized and existing under the laws of the State, and has full power and authority (i)
to issue its Note and (ii) to execute, deliver, perform, and secure its obligations under this
Agreement and the Note Documents to which it is a party. The Local Agency has complied with
all provisions of Applicable Law, including without limitation the Act, in all material matters
related to the transactions contemplated hereunder and under the Note Documents.
Section 6.02. Authorization; Absence of Conflicts. Etc. The Local Agency has taken
all official action necessary to authorize it to execute, deliver, perform, and secure its obligations
under this Agreement and each of the Note Documents to which it is a party, in accordance with
their respective terms. The execution, delivery, and performance of this Agreement and each of
the Note Documents to which the Local Agency is a party, in accordance with their respective
terms and the borrowing thereunder (and the application of the proceeds thereof) (i) have been
duly authorized by all necessary action on the part of the Local Agency, (ii) do not and will not
contravene the laws of the State providing for the organization and government of the Local
Agency, (iii) do not and will not conflict with, or result in a violation of, any Applicable Law,
(iv) do not and will not require any consent or approval of any creditor of the Local Agency or
other third party or conflict with, result in a violation of, or constitute a default under any
agreement or instrument to which the Local Agency is a party or by which it or any of its
Property may be bound, and (v) do not and will not result in or require the creation or imposition
of any Lien upon or with respect to any Property now owned or hereafter acquired by the Local
Agency pursuant to any other agreement to which the Local Agency is a party.
Section 6.03. Bindinl! Oblil!ation. This Agreement has been duly executed and
delivered by the duly authorized officers of the Local Agency and is, and each of the Note
Documents to which the Local Agency is a party, when executed and delivered (assuming due
authorization, execution, and delivery by the other parties thereto) will be, a legal, valid, and
binding obligation of the Local Agency enforceable against the Local Agency in accordance with
its respective terms, except to the extent, if any, that the enforceability thereof may be limited by
(i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, debt
adjustment, or other similar law or enactment now or hereafter enacted by the State or Federal
government affecting the enforcement of creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforceability is considered in a proceeding in equity or at
law).
Section 6.04. Governmental Approvals. All Governmental Approvals necessary for
the Local Agency to enter into this Agreement and the Note Documents to which it is a party and
to perfom1 its obligation hereunder and thereunder have been obtained and remain in full force
and effect and are subject to no further administrative or judicial review, and no other
OHS West:2606li775_J
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Governmental Approval is necessary for the due execution, delivery and performance by the
Local Agency of this Agreement or such Note Documents.
Section 6.05. Compliance with Applicable Law. The Local Agency is in compliance
with all Applicable Law, including all Governmental Approvals, except for non-compliancies
that, singly or in the aggregate, have not had and will not have a Materially Adverse Effect on
the Local Agency or the Local Agency's obligations pursuant to this Agreement and the Note
Documents to which it is a party.
Section 6.06. Absence of Litil!ation. There is no action, suit, proceeding, inquiry, or
investigation, at law or in equity, before or by any court, arbitrator, governmental or other board,
body or official, pending or, to the knowledge of the Local Agency, threatened against or
affecting the Local Agency, questioning the validity of any proceeding taken or to be taken by
the Local Agency in connection with the execution, delivery, and performance by the Local
Agency of the Note Documents to which it is a party or this Agreement or seeking to prohibit,
restrain, or enjoin the execution, delivery, or performance by the Local Agency of any of the
foregoing, nor, to the knowledge of the Local Agency, is there any basis therefor, wherein an
unfavorable decision, ruling, or finding (i) would adversely affect the validity or enforceability
of, or the authority or ability of the Local Agency to perform its obligations under, the Note
Documents to which it is a party or this Agreement, (ii) would adversely affect the validity of the
Act or any provision thereof material to the transactions contemplated by this Agreement or any
of the Note Documents, or (iii) would adversely affect the exclusion of interest on the Notes
from gross income for federal income tax purposes.
Section 6.07. Absence of Defaults. The Local Agency is not in default in the
performance, observance, or fulfillment of any of the obligations, covenants, or conditions
contained in any agreement or instrument to which the Local Agency is a party or by which the
Local Agency or any of its Property is bound or any judgments, decrees, or orders, except for
defaults that, singly or in the aggregate, have not had and will not have a Materially Adverse
Effect on the Local Agency's ability to perform its monetary obligations to the Bank pursuant to
this Agreement or any of the Note Documents to which it is a party.
Section 6.08. Disclosure. The information contained in the Official Statement,
including any appendices, exhibits, or attachments thereto (other than information furnished to
the Underwriter by the Bank for inclusion in the Official Statement and information relating to
other Local Agencies) as such Official Statement (other than such information with respect to the
Bank and other Local Agencies) may have been amended or supplemented, is true and correct,
and does not contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements contained therein, in light of the circumstances under which
they were made, not misleading. There are no facts pertaining to the Local Agency that the
Local Agency has failed to disclose to the Bank through the Official Statement or otherwise that,
individually or in the aggregate, materially adversely affect or, so far as the Local Agency can
foresee, will materially adversely affect the operations, affairs, properties, condition (financial or
otherwise), or prospects of the Local Agency or the Program.
Section 6.09. Tax-Exempt Status. The Local Agency has not taken any action or
omitted to take any action, and knows of no action taken or omitted to be taken by any other
OHS \I,'est260617775_3
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person or entity, which action, if taken or omitted, would cause interest on the Notes to be
included in gross income for federal income tax purposes.
ARTICLE VII
AFFIRMATIVE COVENANTS
From the Date of Issuance and until the termination of this Agreement and payment in
full to the Bank of all amounts payable to Bank hereunder, each Local Agency hereby
individually covenants and agrees that, unless the Bank shall otherwise consent in writing:
Section 7.01. Compliance with Al!reements. The Local Agency shall observe and
perform fully and faithfully all of its obligations under this Agreement and the Note Documents
to which it is a party (whether or not any such Note Documents expires in accordance with its
terms).
Section 7.02. Compliance with Applicable Laws. The Local Agency shall comply in
all material respects with any and all Applicable Laws material to the Trust Agreement, the other
Note Documents, this Agreement, and the Letter of Credit.
Section 7.03. Accountinl! and Reports. The Local Agency will furnish or cause the
Trustee to furnish to the Bank promptly, from time to time, such information regarding the
operations, financial condition, and Property of the Local Agency as the Bank may reasonably
request.
Section 7.04. Notice of Default. The Local Agency will notify the Bank promptly of
any Default or Event of Default of which the Local Agency has knowledge, setting forth the
details of such Default or Event of Default and any and all action which the Local Agency has
taken or proposes to take with respect thereto.
Section 7.05. Litil!ation Notice. The Local Agency will notify the Bank in writing,
promptly after the same shall have become known to the Local Agency or any official of the
Local Agency upon whom process has been served, of any action, suit, or proceeding at law or in
equity or by or before any governmental instrumentality or other agency that, if adversely
determined, might materially impair the ability of the Local Agency to perform its obligations
under this Agreement or any Note Document or might have a Materially Adverse Effect on the
operations, Property, assets, or condition of the Local Agency.
Section 7.06. Further Assurances. The Local Agency will, at any and all times,
insofar as it may be authorized so to do by law, pass, make, do, execute, acknowledge, and
deliver every and all such further resolutions, acts. deeds. conveyances, assignments, recordings,
filing, transfers, and assurances as may be reasonably requested by the Bank for the better
assuring, conveying, granting, assigning, and confirming all and singular the rights, revenues,
and other funds pledged or assigned to the payment of the Notes (including the interest thereon)
or payment of its obligations hereunder or under the Note Documents, or intended so to be. or
which the Local Agency may hereafter become bound to pledge or assign thereto.
OHS West:260617775.3
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Section 7.07. Removal of the Trustee. Upon demand of the Bank, the Local Agency
will join in the removal of the Trustee in accordance with Section 8.02 of the Trust Agreement.
Section 7.08. Preservation of Existence. The Local Agency will preserve and maintain
its existence, rights, and franchises under the laws of the State of California.
Section 7.09. Defaulted Notes. The Local Agency shall cause the Trustee to hold all of
its Defaulted Notes in the name of the Bank for the benefit of the Bank and (to the extent such
Notes are not covered by the Letter of Credit) for the benefit of the Note Participation owners
and cause the Trustee to apply any recovery from the Local Agency pro rata between the Bank
and the Note Participation owners in accordance with the terms of the Trust Agreement.
Section 7.10. Securitv for Notes. The Local Agency has, pursuant to its Resolution,
pledged, as security for its Note, subject to the payment priority provisions of Section 8 of its
Resolution, certain unrestricted revenues (as defined in the Resolution) which are received by the
Local Agency for its general fund and are attributable to the Fiscal Year 2009-2010, and the
principal of the Note and the interest thereon shall constitute a first lien and charge on such
revenues and shall be payable from the first money received by the Local Agency from such
pledged revenues and, to the extent not so paid, shall be paid from any other taxes, income,
revenue, cash receipts, and other moneys of the Local Agency lawfully available therefor,
subject to the payment priority provisions of Section 8 of its Resolution. The Local Agency has
agreed to the establishment and maintenance of a "Payment Account" as a special fund of the
Local Agency by the Trustee under the Trust Agreement as the responsible agent to maintain
such fund until the payment of the principal of the Note and the interest thereon, and the Local
Agency has agreed, subject to the payment priority provisions of Section 8 of its Resolution, to
cause to be deposited directly therein the first amounts received in the months specified as
"Repayment Months" until the amount on deposit in such fund is equal in the respective
Repayment Months to the percentage of the principal of and interest due on the Note at maturity
specified with respect to such Repayment Month.
ARTICLE VIII
NEGATIVE COVENANTS
From the Date of Issuance and until the termination of this Agreement and payment in
full to the Bank of all amounts payable hereunder, each Local Agency hereby individually
covenants and agrees that, without the prior written consent of the Bank:
Section 8.01. Note Documents. The Local Agency will not directly or indirectly
amend, supplement, terminate, or waive, or consent to any amendment, supplement. termination.
or waiver of, any of the provisions of any Note Document to which it is a party or enter into or
consent to any new Note Documents, unless the Bank shall have previously approved in writing
the form and substance of such new Note Document or such amendment. supplement,
termination, waiver, or consent.
OHS West:260617775_3
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Section 8.02. Maintenance of Tax-Exempt Status of Notes. The Local Agency will
not take any action or omit to take any action that, if taken or omitted, would adversely affect the
exclusion of interest on the Notes from gross income for Federal income tax purposes.
Section 8.03. Liquidation. The Local Agency will not terminate, wind up, liquidate, or
dissolve its affairs.
Section 8.04. Merger. The Local Agency will not consolidate or merge with or into any
other Person, unless:
(a) neither the validity nor the enforceability of this Agreement nor the
exclusion of interest on the Notes from gross income for federal income tax purposes shall be
adversely affected thereby; and
(b) such merger or consolidation shall be with or into another local agency
within the meamng of California Government Code Section 53850, which shall assume in
writing or by operation of law the due and punctual performance and observance of all
covenants, agreements, and conditions of the Local Agency under the Note Documents and this
Agreement.
At least thirty (30) days before the consummation of any such consolidation or merger, the Local
Agency shall give notice thereof in reasonable detail to the Bank. The Local Agency promptly
shall furnish such additional information with respect to any such consolidation or merger as the
Bank shall request and, if the Bank shall so request, an opinion of counsel satisfactory to the
Bank, in form and substance satisfactory to the Bank, as to the matters set forth in paragraphs (a)
and (b) ofthis Section 8.04 and as to such other matters as the Bank shall reasonably request.
Section 8.05. Encumbrances. Without the written consent of the Bank, the Local
Agency will not create any encumbrance which either directly or indirectly creates any adverse
effect on the assets and revenues on which the Bank or the Trustee have a lien pursuant to the
Resolutions.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
Section 9.01. Events of Default. Each of the following events shall constitute an Event
of Default, whatever the reason for such event and whether it shall be voluntary or involuntary,
or within or without the control of any Local Agency or all of the Local Agencies, or be effected
by operation of law or pursuant to any judgment or order of any court or any order, rule, or
regulation of any governmental or non-governmental body:
(a) the occurrence and continuance of an "Event of Default" under the
Resolution, the Trust Agreement, or any other Note Document; or
(b) the failure of any Local Agency to pay when due the principal of or
interest on any Note; or
OHS \Vcst:260617775_3
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(c) the failure of any Local Agency to pay any amount when due under this
Credit Agreement; or
(d) the failure of any Local Agency to perform or observe any covenant set
forth in Article VIII hereof; or
(e) the failure of any Local Agency to perform or observe any other term,
covenant, or agreement contained in this Agreement or any of the Note Documents to which it is
a party not specified in paragraphs (a) through (d) above, if such failure shall continue for a
period of fifteen (15) calendar days after written notice thereof by the Bank to the applicable
Local Agency; or
(I) any warranty, representation, or other written statement made by or on
behalf of any Local Agency contained herein or in any of the Note Documents or in any
instrument furnished in compliance with or in reference to any of the foregoing, is false or
misleading in any material respect when made; or
(g) any material provision of this Agreement or any of the Note Documents to
which any Local Agency is a party shall at any time for any reason cease to be valid and binding
in accordance with its terms on the Local Agency, or shall be declared to be null and void, or the
validity or enforceability hereof shall be contested by the Local Agency or a proceeding shall be
commenced by the Local Agency seeking to establish the invalidity or unenforceability hereof or
thereof, or any Local Agency shall deny that it has any further liability or obligation hereunder or
thereunder.
Section 9.02. Remedies. Upon the occurrence of an Event of Default, and notice
thereof to the Trustee, the Bank may, in its sole discretion, but shall not be obligated to, exercise
all or any of its rights and remedies as it may otherwise have under Applicable Law and under
any Note Document.
No failure or delay on the part of the Bank to exercise any right or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy
hereunder preclude any further exercise thereof or the exercise of any further right or remedy
hereunder.
ARTICLE X
INDEMNIFICATION
Section 10.01. Indemnification. In addition to any other amounts payable by each Local
Agency under this Agreement, subject to the provisions of Section 12.12 hereof, each Local
Agency, to the extent permitted by law, hereby agrees to protect, indemnify, pay, and save
harmless the Bank and its officers, directors, affiliates, attorneys, and agents (the "Indemnified
Parties") from and against any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable attorneys' fees, including allocated costs of in-house
counsel) that the Indemnified Party may incur or be subject to (other than as a result. and to the
extent, of gross negligence or willful misconduct on the part of the Indcmnificd Party), as
OHS \Vest:26061iT75J
- 16-
determined by a final and unappealable judgment of a court of competent jurisdiction as a
consequence, directly or indirectly, of (i) the issuance of the Letter of Credit, (ii) any breach by
such Local Agency or any other Person (except another Local Agency) of any warranty,
covenant, term, or condition in, or the occurrence of any default under, this Agreement or the
Note Document to which it is a party, including all reasonable fees or expenses resulting from
the settlement or defense of any claims or liabilities arising as a result of any such breach or
default, and (iii) involvement in any legal suit, investigation, proceeding, inquiry, or action as to
which the Indemnified Party is involved as a consequence, directly or indirectly, of its issuance
of the Letter of Credit, its execution of this Agreement, or any other event or transaction
contemplated by any of the foregoing. The Indemnified Party shall give written notice to the
Trustee (to be sent by the Trustee to the Local Agencies) of any amounts to which the
Indemnified Party is entitled to reimbursement or indemnification under this Section 10.01
(which notice may include amounts that have either been paid by the Indemnified Party or have
been billed to the Indemnified Party and are due and payable not later than thirty (30) days after
the delivery of such notice and which shall state, if practicable, any amount which is allocable to
a specific Local Agency), and each Local Agency shall pay its share of such amounts to the
Indemnified Party in accordance with Section 3.04 hereof. In furtherance and not in limitation
hereof, the Indemnified Party may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or information to the
contrary. Nothing in this Article X is intended to limit the obligations of the Local Agencies
contained in Section 5.01 hereof. The obligations of the Local Agencies under this Article X
shall survive the termination of this Agreement.
ARTICLE XI
NATURE OF BANK'S DUTIES
Section 11.01. Nature of Bank's Duties. The Local Agencies, by adoption of their
respective Resolutions, thereby assume all risks of the acts, omissions, or misuse of the Letter of
Credit by the Trustee or any successor thereto; and in connection therewith, the Bank shall not be
responsible: (i) for the form, validity, sufficiency, accuracy, genuineness, or legal effect of any
document submitted in connection with the application for and issuance of, or the making of a
Drawing under, the Letter of Credit or any certification or attestation of default, nonperformance,
noncompliance, nonpayment, or any other statement in any document submitted to the Bank,
even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent, or forged; (ii) for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign the Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for
any reason; (iii) for failure of the Trustee to comply fully with all conditions required in order to
effect a Drawing; (iv) for errors, omissions, interruptions, or delays in transmission or delivery of
any messages, by mail, cable, telegraph, telex, telecopier, or otherwise; (v) for any loss or delay
in the transmission or otherwise of any document or draft required in order to make a Drawing;
(vi) for any act or failure to act of the Bank's agent or correspondent including, but not limited
to, failure to pay because of any law, decree, regulations, ruling, or interpretation of any
governmental agency; (vii) for any investigation of any question of fact or law in connection
with any document submitted to the Bank; (viii) for the existence, form, sufficiency,
OHS West:260617775_3
- ] 7-
performance, or legal effect of any contract or other document referred to in the letter of credit or
this Credit Agreement; (ix) for any inquiry into the existence of any disputes or controversies
between the Local Agency, the beneficiary, or any other person, firm, or corporation or the
rights, duties, or liabilities of any of them; (x) for the acceptance and reliance upon the name,
signature, or act of any party who is or purports to be the executor, administrator, receiver,
trustee in bankruptcy, or other legal representative of the Local Agency or the Trustee in lieu of
the name, signature, or act of such party; and (xi) for any consequences arising from causes
beyond the control of the Bank, except that the Local Agencies shall have a claim against the
Bank, and the Bank shall be liable to the Local Agencies, to the extent of any damages suffered
by the Local Agencies (but limited to direct damages, as distinguished from consequential
damages) that were caused by the Bank's willful misconduct or gross negligence in (a)
determining whether documents presented under the Letter of Credit comply with the terms of
the Letter of Credit, or (b) the Bank's failure to pay under the Letter of Credit in accordance with
its terms after the presentation to it by the Trustee (or a successor Trustee to whom the Letter of
Credit has been transferred in accordance with its terms) of a sight draft and certificate strictly
complying with the terms and conditions of the Letter of Credit. In furtherance and not in
limitation hereof, the Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or information to the
contrary. None of the above shall affect, impair, or prevent the vesting of any of the Bank's
rights or powers hereunder. The Bank hereby agrees that all payments of amounts drawn under
the Letter of Credit shall be made with the Bank's own funds.
In furtherance and extension and not in limitation of the specific provisions hereinabove
set forth, any action taken or omitted by the Bank, under or in connection with the Letter of
Credit or any related certificates or other documents, if taken or omitted in good faith (absent
gross negligence or willful misconduct of the Bank), shall be binding upon the Local Agencies
and the Trustee and shall not put the Bank under any resulting liability to any of them except as
expressly set forth in the Letter of Credit.
ARTICLE XII
MISCELLANEOUS
Section 12.01. Amendments; Waivers.. This Agreement may be amended only by a
written instrument duly executed by each of the parties hereto. The Local Agencies may take
any action herein prohibited or omit to perform any act herein required to be performed by them,
only if the Local Agencies shall first obtain the written consent of the Bank thereto. No course
of dealing between the Local Agencies and the Bank, nor any failure or delay in exercising any
rights or powers hereunder, shall operate as a waiver of any rights of the Bank hereunder, nor
shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. Unless otherwise specified in such waiver or
consent, a waiver or consent given hereunder shall be effective only in the specific instance and
for the specific purpose for which given.
Section 12.02. Survival of Representations and \Varranties. All statements contained
in any Note Document or in any certificate, financial statement. or other instrument delivered by
OHS \VesI2606177'53
- 18 -
or on behalf of the Local Agencies pursuant to or in connection with this Agreement (including
but not limited to any such statement made in or in connection with any amendment hereto or
thereto) shall constitute representations and warranties made under this Agreement. All
representations and warranties made under this Agreement (i) shall be made and shall be true at
and as of the date of this Agreement, the Date of Issuance, and the date of each Drawing under
the Letter of Credit and (ii) shall survive the execution and delivery of this Agreement,
regardless of any investigation made by the Bank or on its behalf.
Section 12.03. Expenses. In addition to any other amounts payable by the Local
Agencies under this Agreement, each Local Agency agrees to pay on the Date of Issuance its
share of all costs and expenses of the Bank including, without limitation, the reasonable fees and
expenses of counsel for the Bank, including without limitation allocated costs of in-house
counsel, in connection with the preparation, issuance, or delivery, as the case may be, of the
Letter of Credit, this Agreement, the Note Documents, and any other documents that may be
delivered in connection with any of the foregoing. In addition, subject to the provisions of
Section 12.12 hereof, each Local Agency agrees to pay promptly its share of all costs and
expenses of the Bank (including reasonable counsel fees and expenses, including without
limitation allocated costs of in-house counsel) in connection with (i) the filing, recording,
administration, transfer, amendment, maintenance, renewal, or cancellation of the Letter of
Credit, this Agreement, the Note Documents, or any other document that the Bank or its counsel
reasonably determines that it must review in connection with this Agreement, (ii) any payment
by the Bank under the Letter of Credit (without duplication or enlargement of any of the Local
Agencies' obligations under Section 3.01 hereof) or (iii) any and all stamp and other taxes and
fees payable or determined to be payable in connection with the execution, delivery, filing, and
recording of the Letter of Credit, this Agreement or the Note Documents, including any interest,
additions to tax, or penalties applicable thereto, and any other documents which may be
delivered in connection with this Agreement. In addition, subject to the provisions of Section
12.12 hereof, each Local Agency agrees to pay promptly its share of all costs and expenses of the
Bank for (i) any and all amounts that the Bank has paid relative to the Bank's curing of any
Event of Default under this Agreement or any default under any of the Note Documents to which
such Local Agency is a party, (ii) the enforcement of this Agreement or any of the Note
Documents to which such Local Agency is a party or (iii) any action or proceeding relating to a
court order, injunction, or other process or decree restraining or seeking to restrain the Bank
from paying any amount under the Letter of Credit. Each Local Agency also agrees to
indemnify the Bank with respect to any and all liabilities with respect to or resulting from any
delay in paying or omission to pay any taxes and fees to the extent that such Local Agency is
obligated to pay the same under this Section 12.03. The Bank shall give written notice to the
Local Agencies of any amounts as to which the Bank is entitled to reimbursement or
indemnification under this Section 12.03 (which notice may include amounts that have either
been paid by the Bank or have been billed to the Bank and are due and payable not later than
thirty (30) days after the delivery of such notice and which shall state, if practicable, any amount
which is allocable to a specific Local Agency), and the Local Agencies shall pay such amounts
to the Bank in accordance with Section 3.04 hereof.
OHS \Vest:260617775.3
- 19 -
Section 12.0-4. Notices. All notices, requests and other communications provided for
hereunder shall be in electronic, telephonic, or written (including bank wire, telegram, telefax,
telex, or similar writing) form and shall be given to the party to whom sent, addressed to it, at its
address or other address or telephone, telefax, or telex number as such party may hereafter
specify for the purpose by notice to the other parties set forth below. Each such notice, request,
or communication shall be effective (i) if given by telephone, telefax, telex. or other electronic
means, when such communication is transmitted to the address specified below and any
appropriate answcrback is received, (ii) if given by mail, three (3) Business Days after such
communication is deposited in the mails with first.class postage prepaid, addressed as aforesaid,
(iii) if given by any other means, when delivered at the address specified below:
(a) if to the Authority:
California Statewide Communities Development Authority
1100 K Street, Suite 101
Sacramento, California 95814
Attention: Secretary
Telephone No.: (916) 327.7500
Telefax No.: (916) 441.5507
(b) if to the Bank:
[Credit Provider]
Mail Code
Attention:
Telephone No.: <-l_'_
Telefax No.: <-l_._
(c) if to the Trustee:
Wells Fargo Bank, National Association
117 Wilshire Blvd., 17th Floor
Los Angeles, California 90071
Attention: Mr. Brian Buchanan
Telephone No.: (213) 614-3325
Telefax No.: (213) 614-3355
(d) if to the Local Agencies
at the addresses set forth on
Schedule I attached hereto
or (iv) in any of the foregoing cases, at such other address or telephone. telefax. or telex, number
as the addressee may hereafter specify for the purpose in a notice to the other party specifically
captioned "l'-iotice of Change of Address pursuant to Section 12.04 of the Credit Agreement."
OHS Wcst:606i77"7~J
.20.
Section 12.05. Continuinl! Oblil!ation. This Agreement is a continuing obligation of the
Local Agencies and shall until the later of the Termination Date or the date upon which all
amounts due and owing to the Bank hereunder shall have been paid in full (a) be binding upon
the Local Agencies and their successors and assigns, and (b) inure to the benefit of and be
enforceable by the Bank and its successors, transferees, and assigns; provided, that the Local
Agencies may not assign all or any part of this Agreement without the prior written consent of
the Bank.
Section 12.06. Participation. The Bank may participate to other banking or financial
institutions of the Bank's choosing all or any portion of its obligations under the Letter of Credit
and of the obligations of the Local Agencies hereunder and under the Defaulted Notes. The
Bank may also sell risk participations in this Agreement and in the obligations of the Local
Agencies hereunder to other financial institutions of the Bank's choosing. The Bank has no
obligation to disclose the participation of such other institution. In calculating any additional
amounts owing to the Bank under Section 2.03 hereof, any participation or risk participation
referred to in this Section 12.06 shall be disregarded as if there had been no participation. The
Local Agencies shall not enter into any reimbursement or other similar agreement with any such
other institution with respect to the Letter of Credit or this Agreement. The foregoing
notwithstanding, no such participation by the Bank shall in any way affect any of the obligations
of the Bank under the Letter of Credit, and the Local Agencies shall have no obligation to deal in
any manner with any such participant.
Section 12.07. Satisfaction ReQuirement. If any agreement, certificate, or other writing,
or any action taken or to be taken, is by the terms of this Agreement required to be satisfactory to
the Bank, the determination of such satisfaction shall be made by the Bank in its sole and
exclusive judgment exercised in good faith.
Section 12.08.Governinl! Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of the State of
California, except to the extent superseded by federal law. The Letter of Credit shall be
construed and enforced in accordance with, and the rights of the parties thereto shall be governed
by, the laws of the State of California and ISP98 (as defined and to the extent provided in the
Letter of Credit).
Section 12.09. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.
OHS V'/est:260617775_3
- 21 -
Section n.l0.Severabilitv. Any provIsIOn of this Agreement that is prohibited,
unenforceable, or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition, unenforceability, or non-authorization without invalidating the
remaining provisions hereof or affecting the validity or enforceability or non-authorization of
such provision in any other jurisdiction and the remaining portion of such provision and all other
remaining provisions will be construed to render them enforceable to the fullest extent.
Section 12.11. Headinl!s. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement for any other
purpose.
Section 12.12. Entire Al!reement; No Al!encv. This Agreement and the other
documents referred to herein contain the entire agreement between the Bank and the Local
Agencies with respect to the subject matter hereof, superseding all previous communications and
negotiations. and no representation, undertaking, promise, or condition concerning the subject
matter hereof shall be binding upon the Bank unless clearly expressed in this Agreement or in the
other documents referred to herein. Nothing in this Agreement or in the other documents
referred to herein and no action taken pursuant hereto shall cause any Local Agency to be treated
as an agent of the Bank or shall be deemed to constitute the Bank and any Local Agency a
partnership, association, joint venture, or other entity.
Section 12.13. No Third-Partv Benefit. This Agreement is solely for the benefit of the
parties hereto and their permitted successors and assigns. No other person or entity shall have
any rights under, or because of the existence of, this Agreement.
Section 12.14. Consent to Venue. To the extent permitted by law, each Local Agency
hereby consents to the venue in the superior court in San Francisco Coun!)', California,
and waives any objection based on lack of personal jurisdiction, improper venue or forum
non conveniens, with regard to any actions, claims, disputes or proceedings relating to this
Agreement, the Letter of Credit, or any other document delivered hereunder or in
connection herewith, or any transaction arising from or connected to any of the foregoing.
The Local Agency waives personal service of any and all process upon it, and consents to
all such service of process made by mail or by messenger directed to it at the address
specified below. Nothing herein shall affect the Bank's right to serve process in any manner
permitted by law, or limit the Bank's right to bring proceedings against the Local Agency or its
property or assets in the competent courts of any other jurisdiction or jurisdictions.
The Local Agency acknowledges, for the purposes of California Code of Civil Procedure
Section 395 (a), that the Local Agency has contracted to perform an obligation in San Francisco
County by making payment of its Note through the Trustee's offices in Los Angeles, that the
Note was in fact entered into in San Francisco County by its physical delivery at its issuance, and
that this Agreement is a special contract in writing. The Local Agency represents that the
consent and acknowledgement contained in this section 12.14 are knowingly, willingly, and
voluntarily given.
OilS \\'cst2f1l)6]7:753
- 22-
'Section 12.15. Waiver of Jurv Trial. The Local Agency and the Bank hereby jointly
and severally waive any and all right to trial by jury in any action or proceeding relating to this
Agreement, the Letter of Credit, or any of the Note Documents, or any other document delivered
hereunder or in connection herewith, or any transaction arising from or connected to any of the
foregoing. The Local Agency and the Bank each represent that this waiver is knowingly,
willingly, and voluntarily given.
Section 12.16. Limitation of Liabilitv. Notwithstanding anything to the contrary herein
or in any Note or document referred to herein, no Local Agency shall incur any obligation under
this Agreement, including, without limitation, under Article III, Section 10.01, or Section 12.03
hereof, on account of any default, action, or omission of any other Local Agency.
OHS V/est260617-;75_3
- 23 -
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed
and delivered by their respective duly authorized officers as of the date hereof.
[CREDIT PROVIDER]
By
OHS \',:est260617775_3
- 24-
SCHEDULE I
PARTICIPATING LOCAL AGENCIES
Schedule 1-)
OHS \Vest260617775.3
EXHillIT A
TO CREDIT AGREEMENT
IRREVOCABLE LETTER OF CREDIT
No.
,2009
To: Wells Fargo Bank, National Association, as trustee
117 Wilshire Blvd., 17th Floor
Los Angeles, California 90071
Re: California Communities Tax and Revenue Note
Program Note Participations Series 2009A-I
Ladies and Gentlemen:
We hereby establish, at the request and for the account of the Local Agencies that are
signatories to that certain Credit Agreement defined below (collectively, the "Borrower"), our
Irrevocable Letter of Credit in the maximum aggregate amount of S in your favor as
Trustee for the owners of the California Communities Tax and Revenue Note Program Note
Participations Series 2009A-I (the "Note Participations") evidencing undivided fractional
interests in the Tax and Revenue Anticipation Notes (the "Notes") issued by each of the Local
Agencies (defined below) pursuant to the Trust Agreement (the "Trust Agreement") dated as of
I, 20 , between you as Trustee and the Borrower. The Local Agencies are those set
forth in Schedule I to the Credit Agreement dated as of I, 20_ by and between the
Borrower and us. This Letter of Credit is effective immediately and expires at the close of
banking business at our commercial banking office in on July _,2010
(the "Termination Date"), unless sooner terminated pursuant to the terms hereof.
We hereby irrevocably authorize you to draw on us, in an aggregate amount not to exceed
the amount of this Letter of Credit as set forth above and in accordance with the terms and
conditions and subject to the reductions in amount as hereinafter set forth, in one drawing by
your draft, drawn on our commercial banking office in , payable at sight
on a banking day, and accompanied by your written and completed certificate signed by you in
substantially the form of Annex A attached hereto with respect to the payment of principal on the
Note Participations plus accrued and unpaid interest on the Note Participations to the date of
redemption (such draft accompanied by such certificate being your "A Drawing"), an amount not
exceeding S
Funds under this Letter of Credit are available to you against your A Drawing stating on
its face: "Drawn under Irrevocable Letter of Credit No. issued by [Credit Provider],
" and accompanied by your written and completed
certificate signed by you in substantially the form of Annex A attached hereto. The drawing and
certificate shall be dated the date of its presentation and shall be presented at the office referred
OllS Wes12606177753
Exhibit A - Page I
to above (or at any other office which may be designated by us by written notice delivered to
you) on or before 11 :00 a.m. California time on the day (which shall be a business day) of our
making funds available to you hereunder. If we receive your drawing and certificate at such
office, all in strict conformity with the terms and conditions of this Letter of Credit, not later than
11 :00 a.m. California time on a business day prior to the termination hereof, we will honor the
same prior to I :30 p.m. California time, on the same business day in accordance with your
payment instructions. If we receive your drawing and certificate at such office, all in strict
conformity with the terms and conditions of this Letter of Credit, after 11:00 a.m. California time
on a business day prior to the termination hereof, payment shall be made to you on the next
succeeding business day (not later than 12:00 noon, California time) in accordance with your
payment instructions. As used herein, a "business day" means any day except Saturday, Sunday,
or any day on which banks located in the city of San Francisco, California, are required or
authorized to remain closed.
All payments made by us under this Letter of Credit will be made in immediately
available funds and will be disbursed from our own funds. If requested by you, payment under
this Letter of Credit may be made by wire transfer of the Federal Reserve Bank of San Francisco
funds to your account in a bank on the Federal Reserve wire system.
This Letter of Credit shall expire at our close of business in San Francisco, California, on
the earliest to occur of the following dates:
A. the Termination Date;
B. the date on which you make your A Drawing;
C. the date you surrender this Letter of Credit to us for cancellation.
This Letter of Credit is transferable in its entirety (but not in part) to any transferee that
you certify to us has succeeded you as Trustee under the Trust Agreement, and may be
successively transferred. Transfer of the available balance under this Letter of Credit to such
transferee shall be effected by the presentation to us of this Letter of Credit accompanied by a
certificate in substantially the form of Annex B attached hereto. Upon such presentation we shall
forthwith transfer the same to your transferee or, if so requested .by your transferee, issue a letter
of credit to your transferee with provisions therein consistent with this Letter of Credit.
Drawings to be presented hereunder may be presented by telecommunications and the
Bank shall be entitled to rely thereon as if such drawings were presented in person, provided
such drawings, including the required Annexes, are in conformance with the requirements for the
same as set forth herein, but for the requirement of an original signature, with original executed
drawing(s) and certificate(s) to follow immediately thereafter.
This Letter of Credit is subject to the International Standby Practices (1998 Edition),
International Chamber of Commerce, Publication No. 590 CISP98"). As to matters not covered
by ISP98, this Letter of Credit shall be governed by and construed in accordance with the laws of
the State of California. including, but not limited to, the Uniform Commercial Code of that State.
OHS \\':est:260617775.J
Exhibit A - Page 2
This Letter of Credit sets forth in full our undertaking. This undertaking may not in any
way be modified, amended, amplified, or limited by reference to any document, instrument, or
agreement referred to in this Letter of Credit (including, without limitation, the Note
Participations), except the certificates and Drafts referred to in this Letter of Credit. Any such
reference shall not be deemed to incorporate any document, instrument or agreement except for
such certificates and sight drafts.
Communications with respect to this Letter of Credit shall be in writing and shall be
addressed to us at [Credit Provider], , Attention: Standby
Letter of Credit Department, specifically referring to the number of this Letter of Credit.
[CREDIT PROVIDER]
By:
OHS \VeSI:260617775,J
Exhibit A - Page 3
ANNEX A
TRUSTEE'S CERTIFICATE - A DRAWING
[ Credit Provider]
Attention: Standby Letter of Credit Department
Re: Irrevocable Letter of Credit No.
The undersigned, a duly authorized officer of Wells Fargo Bank, National Association in
its capacity as trustee (the 'Trustee") hereby certifies to [Credit Provider] (the "Bank") with
reference to the Irrevocable Letter of Credit referred to above (the "Letter of Credit") issued in
favor of Trustee that:
(1) The Trustee is the Trustee under the Trust Agreement for the owners of the Note
Participations.
(2) The Trustee is making a drawing in the amount of $ under the Letter
of Credit with respect to the payment of accrued and unpaid interest on the Note Participations
pursuant to Section 5.03 of the Trust Agreement to the date of redemption.
(3) The amount of the drawing was computed in compliance with the terms and
conditions of the Trust Agreement and does not exceed the amount available to be drawn under
the Letter of Credit.
(4) The Trustee was not prior to the date of this drawing required to surrender the
Letter of Credit to the Bank for cancellation in accordance with the terms of the Trust
Agreement.
Any capitalized term used in this certificate and not defined shall have its respective
meaning as set forth in the Letter of Credit.
The Trustee has executed and delivered this Certificate on July _,2009.
Wells Fargo Bank, National Association,
as trustee
By:
Title:
'HS \Ves:260617775_3
Annex A - Page I
ANNEX B
FORM OF TRANSFER INSTRUCTION
[Credit Provider]
Attention: Standby Letter of Credit Department
Re: Irrevocable Letter of Credit No.
Ladies and Gentlemen:
By this transfer, all rights of the undersigned in the Letter of Credit are transferred to the
transferee, and the transferee shall have the sole rights as its beneficiary, including sole rights
relating to any amendments, whether increases or extensions or other amendments and whether
now existing or hereafter made; provided, however, that no rights shall be deemed to have been
transferred to the transferee until such transfer complies with the requirements of the Credit
Agreement pertaining to transfers.
The Letter of Credit is returned herewith, and in accordance therewith, we ask that this
transfer be effective and that you transfer the Letter of Credit to our transferee or that, if so
requested by the transferee, you issue a new irrevocable letter of credit in favor of the transferee
with provisions consistent with this Letter of Credit.
Yours very truly,
SIGNATURE AUTHENTICATED
(Bank)
as predecessor Trustee
Signature of New Beneficiary
(Authorized Signature)
OHS West:2606177753
Annex B - Page I
SIGNATURE PAGE OF LOCAL AGENCY
The undersigned has read the Credit Agreement dated as of the date above mentioned
among the Local Agencies named on Schedule I attached thereto and the Credit Provider, which
pertains to the California Communities Tax and Revenue i'\nticipation Note Program, Note
Participations Series 2009A-1. The undersigned has caused this Signature Page to be signed in
its name by its duly authorized representative, to evidence its election to become a party to the
Credit Agreement and its agreement to be bound by the terms of the Credit Agreement.
[LOCAL AGENCY]
By:
Authorized Local Agency Representative
OHS Wes\:2606177'):.
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Draft of 3112/09
PRELlMI1\ARY OFFICIAL STATDIE1\T 1M TED
,2009
NEW ISSUE - BOOK-ENTRY -ONL Y
RATINGS: Moody's:
Standard & Poor's:
See "RA TI~GS" herein
$
*
CALIFORNIA COMMUNITIES TAX AND REVENUE ANTICIPATION NOTE PROGRAM
NOTE PARTICIPATIONS
$
Series 2009A-I
(Certain Local Agencies)
$ .
Series 2009A-2
( )
$-
Series 2009A-3
( )
$
Series 2009A-4
( )
$ .
Series 20098
L--l
~
Dated: Date of Delivery Due: As sho'Ml on inside cover
The Note Participations of each Series are being executed and delivered pursuant to the terms of five separate Trust Agreements, each dated as of July 1,2009
(each a "Trust Agreement" and collectively the "Trust Agreements"), by and between the California counties, cities and other local agencies identified therein
(collectively, the "Local Agencies"), the California Statewide Communities Development Authority (the "Authority"), as sponsor of the Program (defined herein) and
Wells Fargo Bank. National Association, as trustee (the "Trustee"). Each Series of the Note Participations evidences and represents a proportionate and undivided
interest in certain tax and revenue anticipation notes (individually, a "Note" and collectively, the "Notes") and debt service payments on the Notes to be made by the
related Local Agencies, in the same aggregate principal amount as the Note Participations of each Series. The Series 2009A~ I Note Participations are payable by
certam of the Local Agencies identified herein, the Series 2oo9A-2 Note Participations are payable solely by ~, the Series 2009A-3 Note Participations are
payable solely by , the Series 2009A-4 Note Participations are payable solely by and the Series 2009B Note Participations are payable solely
by In accordance with California law and each authorizing resolution (each a "Note Resolution"), the Note of each Local Agency is payable only out of
the taxes, income, revenue, cash receipts and other moneys which are received by such Local Agency for its general fund, attributable to the Fiscal Year 2009-10 and
legally available for payment therefor. The Series 2009A-l Note Participations, the Series 2009A~2 Note Participations, the Series 2009A-3 Note Participations and
the Series 2009A~4 Note Participations are collectively referred to herein as the "Series 2009A Note Participations." The Series 2009B Note Participations are
referred to herein as the "Senes 2009B Note Participations." The Series 2009A Note Participations and the Series 2009B Note Participations are collectively referred
to herein as the "Note Participations"
Interest and principal evidenced by the Note Participations are payable as provided on the inside cover page. The Note Participations of each Series \I/ill be
prepared in fully registered form and, when executed and delivered, ",;11 be registered in the name of CEDE & CO., as owner of the Note Participations of such Senes
and nominee for The Depository Trust Company ("DTC"), New York, New York. DTC will act as securities depository for the Note Participations of each Series
Individual purchases and sales of the Note Participations of each Series may be made in book~entry form only, in Authorized Denominations. Purchasers "vil1 not
receive certificates representing their interest in the Note Participations purchased. Principal and interest evidenced by the Note Participations of each Series will be
payable by wire transfer to DTC. which in turn is required to remit such principal and interest to DTC Participants for subsequent disbursement to the Beneficial
O"'ners of the Note Participations of such Series, as more fully described herein.
The Note Participations of each Series are not subject to prepayment or redemption prior to maturity
Each Series of Note Participations is separately executed and delivered and secured under its related Trust Agreement. Except with respect to the Credit
Instrument (as defined bejo.....~. which partial(). secures the Series 2009A~j Note Participations 10 the extent described herein, the Owners of Note Participations 0/
anyone Series will have no claim on the revenues or funds secun'ng Note Participations of an)' other Series.
The Notes are being issued and sold pursuant to the related Note Participations to provide moneys to meet the respective Local Agency's anticipated cash flow
needs for its Fiscal Year ending on June 30, 2010 ("Fiscal Year 2009-] 0") created by timing differences between its anticipated expenditures for Fiscal Year 2009~lO
and its estimated receipt of certain revenues for Fiscal Year 2009-1 O. Each Note is secured by a pledge of certain unrestricted revenues received by the Local Agency
issuing such Note for its general fund attributable to the Fiscal Year 2009-10, and each Note shall constitute a first lien and charge thereon and shall be payable from
the first moneys received by such Local Agency from such pledged revenues. To the extent not so paid, each Note shall be paid from any other taxes, income,
revenue, cash receipts and other moneys of such Local Agency lawfully available therefor. Each Note Resolution requires the applicable Local Agency to set aside
and deposit in a special fund to be established by such Local Agency certain amounts from the first such pledged revenues received by such Local Agency in those
months described herein so that the amount on deposit in such fund on such dates as described herein, taking into consideration anticipated investment earnings
thereon to be received by the maturity date, ".,.ill be~ following all such deposits, equal to all orthe principal of and interest due on such Note, as more fully describeo
herein. Each Note Resolution also requires the applicable Local Agency to deposit the principal and interest due on its Note by the Note Participation Deposit Date
See "Summary Schedule of Terms" on the inside front cover page hereof The obligation of each Local Agency is a several and not a joint obligation and is
strictly limited to such Local AgenC)"s repayment obligation under its Note Resolution and ~ote
THE NOTE PARTICIPATIONS OF EACH SERIES EVIDENCE AND REPRESENT LIMITED OBLIGATIONS OF THE INDIVIDUAL LOCAL
AGENCIES, PAYABLE SOLELY FROM CERTAIN FUNDS PLEDGED UNDER THE TRUST AGREEMENT RELATED TO SUCH SERlES OF NOTE
PARTICIPATIONS THE OBLIGATION OF EACH LOCAL AGENCY TO PAY PRINCIPAL AND INTEREST EVIDENCED BY THE NOTE
PARTICIPATIONS OF EACH SERIES DOES NOT CONSTITUTE A DEBT OF THE LOCAL AGENCIES, THE ALTHORlTY OR THE STATE OF
CALIFORNIA. OR ANY POLITrCAL SUBDIVISION THEREOF, IN CONTRAVENTION OF AN'\:," CONSTITUTIONAL OR STATUTORY DEBl
L1i\llT AT10N OR RESTRICTION.
The scheduled payment of up to $_ of the total amount of principal and interest e\'id~nced by the Series 2009A~1 Note Participations when due will bl"
secured by a letter of credit (the "Credit Instrument") to be Issued hy U.S. BANK NATIONAL ASSOCIATION, concurrently with the delivery of the Notl"
Participations
:i.
o
[BANK LOGO]
55217.4 032699 OS
'" Preliminary, subject to change.
The Credit Instrument does not secure the payment of the principal and interest evidenced by the Series 2009A.2 Note Participations, Series 2009A.3 Note
Participations, Series 2009A-4 Note Participations or Series 2009B Note Participations.
THIS COVER PAGE CONTAINS CERTAIN INFORMATION FOR GENERAL REFERENCE ONLY. IT IS NOT INTENDED AS A SUMMARY OF-
TRANSACTION INVESTORS ARE ADVISED TO READ THE ENTIRE OFFICIAL STA TEMENT TO OBTAIN INFORMATION ESSENTIAL TO MAl<.
AN INFORMED INVESTMENT DECISION
[In the opinion of Orrick, Herrington & Sutcliffe LLP, Special Counsel to the Local Agencies and the Authority, based upon an analysis of eXIsting laws,
regulations, rulings and coun decisions, and assuming, among other matters, the accuracy of certain representations and compliance with certain covenants, interest
on the Notes represented by the Note Participations is excluded from gross income for federal income tax purposes under Section \03 of the Internal Revenue Code
of 1986 (the "Code") and is exempt from State of California personal income taxes. The amount treated as interest on the Notes represented by the Series 2009A
Note Participations and excluded from gross income may depend upon the taxpayer's election under Internal Revenue Notice 94-84. Special Counsel is of the further
opinion that interest on the Notes represented by the Note Participations is not a specific preference item for purposes of the federal individual or corporate alternative
minimum taxes, although Special Counsel observes that such interest is included in adjusted current earnings when calculating corporate alternative minimum taxable
income. Special Counsel expresses no opinion regarding any other tax consequences related to the o\.Vl1ership or disposition of. or the accrual or receipt of interest on,
the Notes represented by the Note Participations. See ''TAX MA TTERS."] NOTE. TO BE VPDA TED BY BOND COUNSEL
The ~ole Participations of each Series are offered when, as and if executed and delivered and accepted by the Underwriters, subjeclto the approval of validir:
by Omck, Herrington & Sutcliffe LLP. Los Angeles, California. Special Counsel. Certain legal matters will be passed upon for the Underwriters by their counsei,
Hawkins Delafield & Wood LLP, San Francisco, California. The Note Participations of each Series in definitive tom are expected to be available for delivery
through the facilities of DTC in New York, Nev.' York on or about July 1,2009
DE LA ROSA & CO.
JPMORGAN
MERRILL LYNCH & CO.
BARCLAYS CAPITAL
Dated:
,2009
55217.4 032699 OS
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No broker, dealer, salesman or other person has been authorized to give any information or to
make any representations other than those contained in this Official Statement in connection with the
offering made hereby and, if given or made, such information or representations must not be relied
upon as having been authorized by the Authority, the Local Agencies or the Underwriters. Neither
the delivery of this Official Statement nor any sale hereunder shall under any circumstances create
any implication that there has been no change in the affairs of the Authority or any Local Agency
since the date hereof. This Official Statement does not constitute an offer to sell or the solicitation of
an offer to buy, nor shall there be any sale of the Note Participations in any jurisdiction in which it is
unlawful for such person to make such offer, solicitation or sale. The information contained in this
Official Statement has been obtained from the Local Agencies and other sources believed by the
Authority and the Underwriters to be reliable. The Underwriters have reviewed the information in
the Official Statement in accordance with, and as part of, their responsibility to investors under the
federal securities law as applied to the facts and circumstances of this transaction, but the
Underwriters do not guarantee the accuracy or completeness of such information.
This Official Statement is not to be construed as a contract with the purchasers of the Note
Participations. Statements contained in this Official Statement which involve estimates, forecasts or
opinions, whether or not expressly so described herein, are intended solely as such and are not to be
construed as a representation of facts.
In connection with this offering, the Underwriters may overallot or effect transactions which
stabilize or maintain the market price of the Note Participations at a level above that which might
otherwise prevail in the open market. Such stabilizing, if commenced, may be discontinued at any
time.
Other than with respect to information concerning U.S. Bank National Association ("U.S.
Bank" or the "Credit Provider") as the Credit Provider for the Series 2009A-I Note Participations
contained under the caption "SECURITY AND SOURCE OF PAYMENT - The Credit Instrument"
and "- The Credit Provider" and Appendix J attached hereto, none of the information in this Official
Statement has been supplied or verified by U.S. Bank and U.S. Bank makes no representation or
warranty, express or implied, as to (i) the accuracy or completeness of such information; (ii) the
validity of the Note Participations; or (iii) the tax-exempt status of the interest on the Note
Participations.
'5217.4 032699 OS
CALIFORNIA COMMUNITIES TAX AND REVENUE ANTICIPATION NOTE PROGRAM
Series A-I
LOCAL AGENCIES
Issuers of the ]'iotes
SPONSOR
California Statewide Communities
Development Authority
SPECIAL SERVICES
Special Counsel
Omck, Herrington & Sutcliffe LLP
Los Angeles, California
Trustee
Wells Fargo Bank, National AssociatlOn
Los Angeles, California
Series A-2
Series A-3
Series A-4
Series B
552] 7.4 m2699 OS
TABLE OF CONTENTS
Parze
INTRODUCTORY STATEMENT................................... ...... .......... .............. .. ....................... .1
THE AUTHORITY AND THE PROGRAM .......... ............. ................................ 3
DESCRIPTION OF THE NOTE PARTICIPATIONS ..... .. ................. .....4
DENOMINATIONS; PAYMENT OF PRINCIPAL AND INTEREST. .................. ... .... ........ .......................4
REGISTRATION AND TRANSFER OFNoTE PARTICIPATIONS.. ......................... ..5
ESTIMATED SOURCES AND USES OF PROCEEDS ................... 5
SECURITY AND SOURCE OF PAYMENT ................................................................................. 5
NOTES ......... ....................... ................ ........................ ...........5
DEPOSIT OF NOTES; APPLICATION OF NOTE PARTICIPATION PA YMENT FUND .................... . .......7
THE CREDIT INSTRUMENT. ............................ ....... ... ............... ............................. ....................8
DEFAULTED NOTES ............................... ................. ....................................... ................. ........8
THE CREDIT PROVIDER ............... ................... .............. ................ .8
INVESTMENT OF NOTE PROCEEDS AND PLEDOED REVENUES. .................................... .......8
RISK FACTORS.......... ............... ...... ....................... .............. ...................... ................ .....9
liMITED OBLIGATIONS OF THE LOCAL AGENCIES ............... ..... ... ... ...................... ....................... .....9
liMITED SOURCE OF REPA YMENT FOR NOTES AND DEFAULTED NOTES ... ..... 9
BANKRUPTCY... ..................... ................................................ ...................... .. 10
IRS AUDIT......... ....................................... ............. .......................................... ................ ..10
No JOINT OBLIGATION ............. .............. .................. ..10
RISK OF STATE OR LOCAL LEGISLATION ... .................. ........ ....................... ............. ....11
STATE BUDGET FINANCES ..................... ................. .................................. ................... ..II
STATE BUDGET FOR FISCAL YEAR 2008-09 ........... ................................ .....11
GOVERNOR'S PROPOSED FISCAL YEAR 2009-10 STATE BUDGET ...... ................... ..................................14
STATE BUDGET FOR FISCAL YEAR2009-10 .................... .................................................. .......................16
REVISION TO THE 2009-10 PROPOSED BUDGET .................. ...... ....... ...................... .............. ..17
FUTURE STATE BUDGETS ............................................ ............. ................. ..................................................17
IMPACT OF EMERGENCY ECONOMIC STABILIZATION ACT OF 2008 ON THE LOCAL AGENCIES ................................ 17
IMPACT OF THE 2009 FEDERAL ECONOMIC STIMULUS PACKAGE ON THE LOCAL AGENCIES ....... .........18
SECURITY ............................. ........................................... ............................. ............ ....19
POTENTIAL INCREASED PENSION AND OPEB FUNDING OBLlGA TIONS .................................. ....19
INVESTMENT OF FUNDS .................... .................... ....................... ............... ............. .......19
CREDIT PROVIDER ....... .................... .... ................. ............. .............. ......... ..................... ................... .... ...... .......... 20
PARTICIPATING LOCAL AGENCIES INFORMATION .........................................................21
GENERAL LOCAL AGENCY DESCRIPTIONS ........... .................. .. ......... ......................................................21
CONSTITUTIONAL AND STATUTORY LIMITATIONS ON TAXES AND APPROPRIATIONS .............22
ARTICLEXIIIA OF THE CALIFORNIA CONSTITUTION................. .......... ........................... ......................................22
ARTICLE XIIIB OF THE CALIFORNIA CONSTITUTION ...................... ................................23
UNITARY PROPERTY.......................................................................................................................... ......................23
PROPOSITION 218 ......................................................................... ............. ............................................................24
PROPOSITION 62 ......... .................. ......................................... ............................................................24
PROPOSITION lA ............................................... ..................... ............................ ................... ...........25
ASSESSMENT ApPEALS AND ASSESSOR REDUCTIONS......... ...................... ...............26
FUTURE INITIATIVES... ............................ ........................ ....................27
TAX MATTERS..................................... ................ ............................. ...................................27
SERIES 2009A NOTE PARTICIPATIONS. ............... ............................... ............................................27
THE NOTE PARTICIPATIONS.. .. ............ .................... .......27
LITIGATION........ ................. .29
LOCAL AGENCIES.. ............. ............................................................................................. ...29
THE AUTHORITY.... ............. .. ... ............ ................... .. ...............30
R.."- TINGS.............. .................... . .. ... ............ 30
UNDERWRITING.. .......30
CONT!I\'UING DISCLOSURE.................... ... 31
MATERIAL EVENTS UNDERTAKING ................. ................ ....................... . ..31
55217.4 032699 OS
TABLE OF CONTENTS
CERTAIN LEGAL MATTERS .....................
AUTHORJZATION AND APPROVAL.............
............32
..................33
NOTE AMOUNT BY LOCAL AGENCY AND SERJES .
LOCAL AGENCY GENERAL AND FINANCIAL INFORlvIA nON
CASH FLOWS AND ALTERNATIVE CASH RESOURCES..
COVERAGE ANALYSIS.. ............
REPA YMENT DATES AND REPAYMENT MONTHS, PERCENTAGES AND AMOUNTS
INVESTMENT OF NOTE PROCEEDS ...........
DEFINITIONS OF CERTAIN TERMS AND SUMMARY OF NOTE
RESOLUTIONS AND SUMMARY OF TRUST AGREEMENTS..
PROPOSED FORMS OF SPECIAL COUNSEL OPINION .....
THE BOOK-ENTRY-ONL Y SYSTEM.
SPECIMEN LETTER OF CREDIT...
. .......................APPENDIX A
.................. ...APPEJ\lJ)IX B
............. ......APPENDIX C
. ...APPENDIX D
..........APPENDIX E
.. APPHiDIX F
. .......APPENDIX G
.. . ................./u'PENDIX H
............ APPENDIX I
...........APPENDIX J
II
55217.4 032699 OS
OFFICIAL STATEMENT
$ *
CALIFORNlA COMMUNITIES TAX AND REVENUE ANTICIPATION NOTE PROGRAM
NOTE PARTICIPATIONS
$ *
Series 2009A-l
(Certain Local Agencies)
$ *
Series 2009A-2
( )
$ *
Series 2009A-3
( )
$ *
Series 2009A-4
( )
$ *
Series 20098
( )
INTRODUCTORY STATEMENT
This Official Statement, including the cover page and appendices hereto (the "Official
Statement"), sets forth certain information concerning the California Communities Tax and Revenue
Anticipation Note Program Note Participations, Series 2009, and the California Statewide
Communities Development Authority, as sponsor thereof (the "Authority"). The Note Participations
will be executed and delivered in five separate series. The Authority serves as sponsor of the
Program (defined below) and, for certain limited purposes, agent of the several Local Agencies
participating in the Program. The principal amounts, interest rates, interest payment dates, maturity
dates, obligors and certain other summary information with respect to each Series of the Note
Participations is provided on the inside cover page hereto. Each Series of the Note Participations is
referred to herein as the "Series 2009_ Note Participations" with the particular related Series
designation inserted in the blank. The Series 2009A-I Note Participations, Series 2009A-2 Note
Participations, Series 2009A-3 and Series 2009A-4 Note Participations are collectively referred to
herein as the "Series 2009A Note Participations." The Series 2009B Note Participations are referred
to herein as the "Series 2009B Note Participations." The Series 2009A Note Participations and the
Series 2009B Note Participations are collectively referred to herein as the "Note Participations."
Pursuant to the California Communities Tax and Revenue Anticipation Note Program (the
"Program"), the participating counties, cities and other local agencies (collectively, the "Local
Agencies") in the State of California (the "State"), are issuing the Notes. The Notes are deposited
with Wells Fargo Bank, National Association, as trustee (the "Trustee"), and Note Participations are
executed and delivered by the Trustee pursuant to five separate Trust Agreements, each dated as of
July I, 2009 (each a "Trust Agreement" and collectively the "Trust Agreements"), by and between
the Local Agencies, the Authority and the Trustee. Each Local Agency participating in the Program
is the issuer of its Note which, when combined with the Notes of other Local Agencies participating
in the Program and the same Series, shall be evidenced by the Note Participations which evidence
and represent a proportionate and undivided interest in the Note of each Local Agency, such that
each Local Agency participating in the Program is severally, not jointly, liable on each such Note
Participation in the proportion that the face amount of such Local Agency's Note bears to the total
aggregate face amount of the Notes issued by all Local Agencies participating in the Program and the
same Series.
* Preliminary, subject to change.
552] 7.4032699 OS
Each Series of Note Participations is separately executed and delivered and secured
under its related Trust Agreement. Except with respect to the Credit Instrument (as defined
below), which partially secures tbe Series 2009A-l Note Participations to the extent described
herein, the Owners of Note Participations of anyone Series will have no claim on the revenues
or funds securing Note Participations of the other Series.
The Note Participations will be executed and delivered in an aggregate principal amount
equal to the aggregate principal amount of the Notes. The Notes will be delivered to and deposited
with the Trustee for the benefit of the registered owners and the Credit Provider, if any, of the related
Series of the Note Participations, and the payments on such Notes will be used for the payment of the
principal of and interest on the Notes evidenced by the related Series of Note Participations or the
reimbursement of drawings under or payments made pursuant to or from the Credit Instrument.
The Note of each Local Agency is issued under the authority of Article 7.6, Chapter 4, Part I,
Division 2, Title 5 (commencing with Section 53850) of the California Government Code (the "Act")
and pursuant to a resolution of issuance adopted by the legislative body of each such Local Agency
(the "Note Resolution"). The issuance of a Local Agency's Note will provide moneys to meet such
Local Agency's anticipated cash flow needs for its Fiscal Year ending on June 30, 2010 ("Fiscal
Year 2009-10") created by timing differences between its anticipated expenditures for Fiscal Year
2009- 10 and its estimated receipt of certain revenues for Fiscal Year 2009- 10. The aggregate
principal amount of Notes issued in connection with each Series will equal the aggregate principal
amount of the Note Participations of such Series. For information on the Local Agencies, the Notes
of the Local Agencies and the allocation of the Notes to each Series of the Note Participations, see
Appendices A, B, C, D and E hereto.
As additional security for the Owners of the Series 2009A-I Note Participations, payment of
up to $ of the total amount of interest on and principal of the Series 2009A-I Note
Participations when due will be secured by a letter of credit (the "Credit Instrument") to be issued
concurrently with the delivery of the Note Participations by U.S. Bank National Association ("U.S.
Bank" or the "Credit Provider") as the Credit Provider. The Letter of Credit shall be issued to the
Trustee for the account of the Local Agencies.
The Credit Instrument does not secure payment of the principal and interest evidenced by the
Series 2009A-2 Note Participations, the Series 2009A-3 Note Participations, the Series 2009A-4
Note Participations and the Series 2009B Note Participations.
In the event the Local Agencies default in the payment of principal of and interest on their
respective Notes relating to the Series 2009A-1 Note Participations in an aggregate amount
exceeding the amount ofthe Credit Instrument, the amount available under the Credit Instrument will
be insufficient to permit the Trustee to pay all of the principal and interest evidenced by the Series
2009A-1 Note Participations. See "SECURITY AND SOURCE OF PAYMENT - The Credit
Instrument" and APPENDIX G - "DEFINITIONS OF CERTAIN TERMS AND SUMMARY OF
NOTE RESOLUTIONS AND SUMMARY OF TRUST AGREEMENTS - SUMMARY OF TRUST
AGREEMENTS - Draws Under the Credit Instrument."
The Note Participations evidence and represent a proportionate undivided interest in the
Notes of the related Series and enjoy the benefits of a security interest in the money hcld in certain
funds established pursuant to the related Trust Agreement, subject to the pro\'isions of such Trust
Agreement permItting the disbursement thereof as set forth therein. NEITHER THE OBLIGATION
2
552174032699 OS
OF EACH LOCAL AGENCY TO PAY PRINCIPAL OF AND INTEREST ON ITS RELATED
NOTE, NOR THE NOTE PARTICIPATION EVIDENCING SUCH LOCAL AGENCY'S
OBLIGATION, CONSTITUTES A DEBT OF THE LOCAL AGENCIES, THE AUTHORITY OR
THE STATE OF CALIFORNIA, OR ANY POLITICAL SUBDIVISION THEREOF, IN
CONTRAVENTION OF ANY CONSTITUTIONAL OR STATUTORY DEBT LIMITATION OR
RESTRICTION
THE CREDIT INSTRUMENT SECURES PARTIAL PAYMENT OF THE
PRINCIPAL AND INTEREST EVIDENCED BY THE SERIES 2009A-l NOTE
PARTICIPATIONS ONLY. THE CREDIT INSTRUMENT DOES NOT SECURE THE
PAYMENT OF THE PRINCIPAL AND INTEREST EVIDENCED BY THE SERIES 2009A-2
NOTE PARTICIPATIONS, THE SERIES 2009A-3 NOTE PARTICIPATIONS, THE SERIES
2009A-4 NOTE PARTICIPATIONS OR THE SERIES 2009B NOTE PARTICIPATIONS.
CERTAIN SERIES OF THE NOTE P ARTICIP A TIONS EVIDENCE NOTES PAYABLE BY
ONE LOCAL AGENCY AS DESCRIBED IN THE INSIDE COVER PAGE HERETO.
Copies of the Trust Agreements and the standard form of the Note Resolution summarized
herein are available upon request during the initial offering period from Wells Fargo Bank, National
Association, Corporate Trust Services, 707 Wilshire Blvd., 17th Floor, Los Angeles, California
90017.
All capitalized words, unless otherwise defined herein, shall have the meanings set forth in
APPENDIX G - "DEFINITIONS OF CERTAIN TERMS AND SUMMARY OF NOTE
RESOLUTIONS AND SUMMARY OF TRUST AGREEMENTS" or, if not defined therein, in the
Trust Agreements.
THE AUTHORITY AND THE PROGRAM
The Authority. The Authority serves as sponsor of the California Communities Tax and
Revenue Anticipation Note Program (the "Program") and as agent for the Local Agencies for certain
purposes related to the Program. The Authority is a public entity organized pursuant to an Amended
and Restated Joint Exercise of Powers Agreement among a number of California counties, cities, and
special districts, entered into pursuant to the provisions relating to the joint exercise of powers
contained in Chapter 5 of Division 7 of Title I (commencing with Section 6500) of the California
Government Code.
The Program. The Program began in 1993. The Program provides cash flow financing for
California counties, cities and other local agencies meeting certain criteria. Since its inception, the
Program has served over 150 local agencies and helped to finance approximately $[7.8] billion in tax
and revenue anticipation obligations. The Local Agencies participating in the Program have never
defaulted in their obligations under the notes issued under the Program.
3
55217.4032699 OS
California Communities Cash Flow Financing Program
Historical Information
Number of
Year Par Value Issued Local Agencies
2008 $854,070,000 29
2007 700,220,000 28
2006 597,530,000 32
2005 811,145,000 32
2004 803,750,000 41
2003 404,295,000 32
2002 445,345,000 48
2001 483,640,000 62
2000 513,095,000 74
1999 594,160,000 T
"
1998 301,120,000 65
1997 302,165,000 63
1996 275,125,000 64
1995 198,400,000 56
1994 232,085,000 69
1993 295,515,000 74
DESCRIPTION OF THE NOTE PARTICIPATIONS
Denominations; Payment of Principal and Interest
The Note Participations of each Series will be prepared in fully registered form and, when
executed and delivered, will be registered in the name of CEDE & Co., as registered Owner of the
Note Participations of such Series and nominee of The Depository Trust Company, New York, New
York ("DTC"). DTC will act as securities depository for the Note Participations of each Series.
Individual purchases may be made in book, entry form only in Authorized Denominations.
Purchasers will not receive certificates representing their interest in the Note Participations
purchased. So long as CEDE & Co. is the registered Owner of the Note Participations of each Series,
as nominee of DTC, references herein to the Owners of the Note Participations of such Series shall
mean CEDE & Co. and shall not mean the actual purchasers (the "Beneficial Owners") of the Note
Participations of such Series.
The Note Participations of each Series will be dated the date of initial execution and delivery
thereof and will evidence and represent principal of the Notes and interest accrued thereon from the
date of initial issuance of the Notes and execution and delivery of the Note Participations of such
Series, at the rate per annum set forth on the inside cover page hereof. The Note Participations
mature on June 30, 2010. Interest and principal of the Note Participations is payable as provided on
the inside cover page.
So long as CEDE & Co. is the registered Owner of the Note Panicipations of each Series, the
principal and interest evidenced by the Note Panicipations of such Series will be payable by wire
transfer by the Trustee to CEDE & Co., as nominee for DTC which is expected. in turn. to remit
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SSel7 4 032699 OS
such amounts to DTC Participants (as defined herein) for subsequent disbursement to the Beneficial
Owners. See APPENDIX I - "THE BOOK-ENTRY-ONLY SYSTEM." Interest payable with
respect to the Note Participations of the Series 2009A Note Participations and the Series 2009B Note
Participations will be calculated on the basis of a 360-day year consisting of twelve 30-day months
Registration and Transfer of Note Participations
So long as the Note Participations of each Series are subject to the DTC book-entry system,
they will be registered, and may be transferred, as described in APPENDIX I ~ 'THE BOOK-
ENTRY-ONLY SYSTEM"
ESTIMATED SOURCES AND USES OF PROCEEDS
The following table lists the estimated sources and uses of proceeds in connection with the
Note Participations.
Estimated Sources and llses.
Sources
Principal Amount
Original Issue Premium
Total Sources
A-I
A-2
SERIES
A-3
A-4
!!
Uses
Deposit to Proceeds Fund(l)
Costs of Issuancel2J
Total Uses
. Numbers reflect rounding.
(l) Available to be withdrawn by Local Agencies on and after the closing date.
(21 Also includes Underwriters' discount and fees related to the Credit Instrument, as applicable.
SECURITY AND SOURCE OF PAYMENT
Notes
Each Series of Note Participations evidences and represents proportionate and undivided
interests in the related Notes, and in debt service payments attributable to such Notes to be made
thereon by the related Local Agencies. The Notes are general obligations of the respective Local
Agencies and, to the extent not paid from moneys pledged pursuant to the respective Note Resolution
of the related Local Agency will be paid from other moneys of the Local Agencies legally available
therefor. However, except for such Pledged Revenues as described herein, the Local Agencies are
not prohibited from pledging, encumbering and utilizing their moneys for other purposes and there
can be no assurance that such moneys will be available for the payment of the principal of and
interest on the Notes represented by the Note Participations. No Local Agency has any obligation
to pay the principal of or interest on the Note of any other Local Agency.
See Appendix A hereto for a listing of each Local Agency, the estimated principal amount of
the Notes and the allocation of each Note with respect to the Series of the Note Participations.
5
55217.4032699 OS
The principal amount of a Local Agency's Note, together with the interest thereon, will be
payable from taxes, income, revenue (including, but not limited to, revenues from the State and
federal governments), cash receipts and other moneys which are to be received by such Local
Agency for its general fund and are attributable to Fiscal Year 2009-10 and which generally are
available for the payment of current expenses and other obligations of such Local Agency
("Unrestricted Revenues"). As security for the payment of the principal of and interest on its Note,
each Local Agency pledges certain Unrestricted Revenues legally available for payment thereof (as
further described below, the "Pledged Revenues"). See APPENDIX C - "CASH FLOWS AND
ALTERNATIVE CASH RESOURCES." The principal of a Local Agency's Note, and the interest
thereon, constitute a first lien and charge on such Pledged Revenues and are payable from the first
moneys received by such Local Agency from such Pledged Revenues and, to the extent not so paid,
will be paid from any other taxes, income, revenue, cash receipts and other moneys of such Local
Agency lawfully available therefor.
In order to effect the pledge of such revenues, each Local Agency agrees under its Note
Resolution to fund a special account, its "Payment Account," within the Note Participation Payment
Fund to be established by the Trustee pursuant to the related Trust Agreement (the "Note
Participation Payment Fund") and further agrees and covenants to fund its Payment Account until the
payment of the principal of its Note and the interest thereon. Each Local Agency agrees under its
Note Resolution to cause to be deposited directly in its Payment Account, by the dates identified as
such Local Agency's Repayment Dates in APPENDIX E - "REPAYMENT DATES,
REPAYMENT MONTHS, PERCENTAGES AND AMOUNTS," such amounts equal to the
percentages of the principal and interest due on such Local Agency's Note required on each
Repayment Date. See APPENDIX C - "CASH FLOWS AND ALTERNATIVE CASH
RESOURCES."
In the event that the amounts held by the Trustee in a Local Agency's Payment Account on
the first day of any Repayment Month are less than the amount required to be in such Payment
Account for the relevant Repayment Month, the Trustee will immediately notify the Local Agency of
such deficiency.
Any moneys placed in a Local Agency's Payment Account will be for the benefit of the
Owners of the related Series of Note Participations and (to the extent provided by the related Trust
Agreement) the Credit Provider. The moneys in such Payment Account will be applied only for the
purposes for which such Payment Account is created until the principal of such Local Agency's Note
and all interest thereon are paid or until provision has been made for the payment of the principal of
and interest on the Note and, if applicable, the payment of all Pre-default Obligations and
Reimbursement Obligations owing to the Credit Provider.
On or before the date specified in the related Trust Agreement (the "Note Participation
Deposit Date"), the moneys in such Local Agency's Payment Account will be transferred to the Note
Participation Payment Fund to pay the interest on and principal of each such Local Agency's Note
when due or, if applicable, to reimburse the Credit Provider for payments made under or pursuant to
a Credit Instrument. See "Summary Schedule of Terrns" on the inside cover page hereof.
Notwithstanding the foregoing, a Local Agency may at any time during Fiscal Year 2009-10
(the "Repayment Fiscal Year") issue an additional parity note (the "Parity Note"), in an amount not
to exceed S , secured by a first lien and charge on Pledged Revenues: provided that (i) such
Parity Note will have the same Repayment Months as the Note, shall be payable as to principal and
interest on such Repayment Months in amounts corresponding on a pro rata basis to the schedule of
6
55217.4 032699 OS
principal and interest payable in such Repayment Months on the Note and the rating on such Parity
Note (or related series of note participations if sold into a pool) shall not be less than the rating on the
Series of Note Participations related to the Note, and (ii) the Local Agency has obtained the written
consent of the Credit Provider, if applicable, to the issuance of such Parity Note by the Local
Agency. In the event that a Local Agency issues a Parity Note, the Local Agency shall make
appropriate deposits into the Payment Account with respect to such Parity Note, and in such event,
the Payment Account shall also be held for the benefit of the Holders of the Parity Note.
THE CREDIT INSTRUMENT SECURES PARTIAL PAYMENT OF THE
PRINCIPAL AND INTEREST EVIDENCED BY THE SERIES 2009A-l NOTE
PARTICIPATIONS. THE CREDIT INSTRUMENT DOES NOT SECURE THE PAYME1,T
OF THE PRINCIPAL AND INTEREST EVIDENCED BY THE SERIES 2009A-2 NOTE
PARTICIPATIONS, THE SERIES 2009A-3 NOTE PARTICIPATIONS, THE SERIES 2009A-
4 NOTE PARTICIPATIONS OR THE SERIES 2009B NOTE PARTICIPATIONS.
FURTHER, CERTAIN SERIES OF THE NOTE PARTICIPATIONS ARE PAYABLE BY
ONE LOCAL AGENCY AS DESCRIBED IN THE INSIDE COVER PAGE HERETO.
Deposit of Notes; Application of Note Participation Payment Fund
Under each Trust Agreement, the Notes, as evidenced and represented by the Note
Participations related thereto, are irrevocably deposited with and pledged and transferred to the
Trustee for the benefit of the Owners of the related Series of Note Participations and the Credit
Provider, if any, and the payments on such Notes will be used for the punctual payment of the
interest on and principal evidenced and represented by such Series of Note Participations or the
reimbursement of drawings under or payments made pursuant to a Credit Instrument. Such deposit,
pledge and transfer constitutes a first and exclusive lien on the principal and interest payments of and
all other rights under such Notes in accordance with the terms of the related Trust Agreement.
All principal and interest payments on a Local Agency's Note will be paid directly by such
Local Agency to the Trustee. All principal and interest payments on a Local Agency's Note received
by the Trustee will be deposited by the Trustee, as and when received, in the applicable Payment
Account within the Note Participation Payment Fund and will be held in trust by the Trustee for the
benefit and security of the Owners of the related Series of Note Participations and the Credit
Provider, if any, to the extent provided in the related Trust Agreement.
Pursuant to each Trust Agreement, the Trustee is required to deposit the moneys contained in
the Note Participation Payment Fund created by such Trust Agreement at the following respective
times in the following respective funds in the manner hereinafter provided, each of which funds the
Trustee agrees to maintain so long as any Note Participations are Outstanding, and the money in each
of such funds will be disbursed only for the purposes and uses authorized (subject to provisions in
such Trust Agreement pertaining to a draw on a Credit Instrument).
(a) Interest Fund. The Trustee shall deposit in the Interest Fund that amount of money
representing the interest due and payable on the Notes on such date; and such money shall be used
and withdrawn by the Trustee solely for the purpose of paying interest evidenced and represented by
the Note Participations on such date.
(b) Principal Fund. The Trustee, on the related principal payment date, shall deposit in
the Principal Fund that amount of money representing the principal becoming due and payable on the
Notes on such principal payment date. All moneys In the Principal Fund shall be used andi
7
55217.4032699 OS
withdrawn by the Trustee solely for the purpose of paying the principal evidenced and represented by
the Note Participations on the principal payment date thereof.
The Credit Instrument
Concurrently with the issuance of the Note Participations, U.S Bank National Association
(the "Credit Provider") will issue a letter of credit for the Series 2009A-I Note Participations ](the
"Credit Instrument"). The Credit Instrument secures the payment of up to $ of the total
amount of principal and interest evidenced by the Series 2009A-I Note Participations when due, as
set forth in the form of the Credit Instrument attached hereto as Appendix 1. The Credit Instrument
does not secure the payment of the principal and interest evidenced by the Series 2009A-2 Note
Participations, the Series 2009A-3 Note Participations, the Series 2009A-4 Note Participations
or the Series 2009B Note Participations. The Credit Instrument is lITevocable and the letter of
credit fees will be fully paid at the time of delivery of the Note Participations.
The Credit Instrument is an unsecured obligation of the Credit Provider.
Defaulted Notes
If a Local Agency fails to pay any of the principal of or interest on its Note on the due date
thereof, such Note will become a Defaulted Note. Upon payment by the Credit Provider of any
drawing on the related Credit Instrument applied to the payment of any portion of the principal of or
interest on the Series 2009A-I Note Participations, as applicable, the Credit Provider will be deemed
to have purchased the Secured Percentage of each applicable Defaulted Note related to such Series of
Note Participations. "Secured Percentage" means, with respect to a Credit Instrument and the Notes
to which it applies, an amount (i) equal to 100%, if the available amount of the Credit Instrument is
greater than or equal to the aggregate amount of principal of and interest on unpaid Notes related to
such Series of Note Participations (or unpaid portions thereof), or (ii) equal to the available amount
of the Credit Instrument divided by the aggregate amount of unpaid principal of and interest on Notes
related to such Series of Note Participations (or unpaid portions thereof), expressed as a percentage,
if the available amount of the Credit Instrument is less than the aggregate amount of unpaid principal
of and interest on Notes related to such Series of Note Participations (or unpaid portions thereof) as
of the maturity date thereof. Each such Defaulted Note will evidence such Local Agency's
reimbursement obligation under the Credit Instrument. The Credit Provider will succeed and be
subrogated to the Owners of the Note Participations of each Series with respect to the Secured
Percentage of each such Defaulted Note related to such Series of Note Participations. The Trustee
will hold such Defaulted Note for the benefit of the Credit Provider, if any, (in the Secured
Percentage) and the Owners of the Note Participations of such Series (to the extent the Secured
Percentage of the Credit Instrument is less than 100%) in accordance with the provisions of the
Credit Agreement.
The Credit Provider
[TO BE UPDATED BY THE CREDIT PROVIDER]
Investment of Note Proceeds and Pledged Revenues
The Note proceeds, or an amount related to the Note proceeds, less amounts used to pay costs
of issuance, and the Pledged Revenues will be invested either in certain investment ah'Teements (the
"Investment Agreements") to be held by the Trustee or in legally permitted investments to be held by
8
551]7.4032699 OS
the Local Agencies. For further information on the criteria for Investment Agreements, see the
definition of "Permitted Investments" in Appendix G. A description of each Local Agency's current
intention with respect to the investment of its Note proceeds is provided in APPENDIX F -
"INVESTMENT OF NOTE PROCEEDS." For certain risk factors related to Investment Agreements,
see "RISK FACTORS - Investment of Funds" herein.
Certain Local Agencies may invest Note proceeds with the Investment Trust of California
("CaITRUST"), a California joint powers authority established by its members ("Members")
consisting of several public agencies pursuant to a Joint Exercise of Powers Agreement.
CalTRUST states that its purpose is to consolidate investment activities of its participants and
thereby reduce duplication, achieve economies of scale and carry out coherent and consolidated
investment strategies through the issuance of shares of beneficial interest in investments purchased
by CaITRUST (the "Shares Program"). The California Government Code provides that public
agencies may purchase shares of beneficial interest issued by a joint powers authority, such as
CalTRUST, organized pursuant to Section 6509.7 ofthe Act. See "RISK FACTORS - Investment of
Funds" herein.
Certain Local Agencies intend to invest Note proceeds in the Local Agency Investment Fund
("LAIF"), a voluntary program created by statute as an investment alternative for California's local
governments and special districts. The enabling legislation for LAIF is Section 16429. I et seq. of the
California Government Code. LAIF states that it offers local agencies the opportunity to participate
in a major portfolio, which invests hundreds of millions of dollars, using the investment expertise of
the Treasurer's Office investment staff at no additional cost to the taxpayers. LAIF invests in certain
securities authorized by Sections 16430 and 16480.4 of the California Government Code.
RISK FACTORS
In evaluating a purchase of the Note Participations, potential investors should consider the
following factors, together with all other information in this Official Statement.
Limited Obligations of the Local Agencies
The Note Participations of each Series are limited obligations of each Local Agency,
severally and not jointly, payable solely from payments with respect to the Notes related thereto and,
in the case of the Series 2009A-I Note Participations, drawings on the related Credit Instrument, as
provided in the related Trust Agreement. The obligation of each Local Agency to pay principal of
and interest on the Notes evidenced by the related Series of Note Participations does not constitute a
debt of the Local Agencies or the Authority or of any member thereof within the meaning of any
constitutional or statutory debt limitation or restriction.
Limited Source of Repayment for Notes and Defaulted Notes
The primary source of repayment of the Note Participations of each Series is payments on the
Notes related to such Series of Note Participations. In order for Owners of the Series 2009A-I Note
Participations to be paid in full in a timely manner, at least approximately _0/0 of the payments with
respect to the Notes related to the Series 2009A-I Note Participations must be paid as and when due
(i.e., the percentage of payments not covered by the related Credit Instrument). A Local Agency is
liable on its Note (even in the event that such Note becomes a Defaulted Note) only to the extent of
its unrestricted revenues attributable to Fiscal Year 2009- I o. If such unrestricted revenues are not
sufficient to pay its Note or Defaulted Note, as the case may be, such Local Agency is not obligated
9
55217.4 032699 OS
to pay such Note or Defaulted Note from any other sources (including subsequent fiscal years'
revenues).
The Credit Instrument secures scheduled payment of up to $ of the total amount of
principal and interest represented by the Series 2009A-I Note Participations when due. The Credit
Instrument does not secure the payment of the principal and interest evidenced by the Series 2009A-2
Note Participations, the Series 2009A-3 Note Participations, the Series 2009A-4 Note Participations
or the Series 2009B Note Participations. See "SECURITY AND SOURCE OF PAYMENT - The
Credit Instrument" and APPENDIX G - "DEFINITIONS OF CERTAIN TERMS AND
SUMMARY OF NOTE RESOLUTIONS AND SUMMARY OF TRUST AGREEMENTS -
SUMMARY OF TRUST AGREEMENTS - Draws Under Credit Instrument."
THE CREDIT INSTRUMENT SECURES PARTIAL PAYMENT OF THE
PRINCIPAL AND INTEREST EVIDENCED BY THE SERIES 2009A-l NOTE
PARTICIPATIONS. THE CREDIT INSTRUMENT DOES NOT SECURE THE PAYMENT
OF THE PRINCIPAL AND INTEREST EVIDENCED BY THE SERIES 2009A-2 NOTE
PARTICIPATIONS, THE SERIES 2009A-3 NOTE PARTICIPATIONS, THE SERIES 2009A-
4 NOTE PARTICIPATIONS AND THE SERIES 2009B NOTE PARTICIPATIONS.
FURTHER, CERTAIN SERIES OF THE NOTE PARTICIPATIONS ARE PAYABLE BY
ONE LOCAL AGENCY AS DESCRIBED IN THE INSIDE COVER PAGE HERETO.
Bankruptcy
As described herein, each Local Agency agrees under its Note Resolution to fund its Payment
Account within the Note Participation Payment Fund until the payment of the principal of its Note
and the interest thereon. Each Local Agency further agrees under its Note Resolution to cause to be
deposited directly in its Payment Account, by the dates identified as such Local Agency's Repayment
Dates in APPENDIX E - "REPAYMENT DATES, REPAYMENT MONTHS, PERCENTAGES
AND AMOUNTS," such amounts equal to the percentages of the principal and interest due on such
Local Agency's Note required on each Repayment Date. See APPENDIX C - "CASH FLOWS
AND ALTERNATIVE CASH RESOURCES." The filing of bankruptcy by one or more of the
Local Agencies could delay or impair the payment of the related Series of Note Participations.
Further, the opinion of Special Counsel as to the enforceability of the Notes is expressly qualified by
the declaration of bankruptcy.
IRS Audit
The IRS has an ongoing program of examining tax-exempt obligations to determine whether,
in the view of the IRS, interest on such obligations is properly excluded from gross income for
federal income tax purposes, and it is possible that the Note Participations may be selected for
examination under such program. There is no assurance that an IRS examination of the Note
Participations or the Notes will not adversely affect the market value of the Note Participations. See
"TAX MATTERS" below.
No Joint Obligation
The obligation of a Local Agency to make payments on or in respect to its Note is a several
and not a joint obligation and is strictly limited to such Local Agency's repayment obligation under
its Note Resolution and its Note.
]0
55217.4 032699 OS
Risk of State or Local Legislation
The Local Agencies rely on a number ofrevenue sources that could be reduced or eliminated
by State or local legislation, including, among others, sales and use taxes, license and permit fees,
fines and penalties, and motor vehicle license fees. There can be no assurance that the State or local
government will not adopt legislation to reduce or eliminate one or more of these revenue sources.
See "State Budget Finances" below.
In addition, a number of statutes and constitutional amendments have been adopted as
measures that qualified for the ballot through California's initiative process as described under
"CONSTITUTIONAL AND STATUTORY LIMITATIONS ON TAXES AND
APPROPRIATIONS," below. There can be no assurance that other initiative measures will not be
adopted affecting the revenues of the Local Agencies.
State Budget Finances
The following information concerning the State of California budgets has been obtained from
publicly available information that the Local Agencies believe to be reliable; however, the Local
Agencies take no responsibility as to the accuracy or completeness thereof and have not
independently verified such information.
State Budget for Fiscal Year 2008-09
The 2008-09 Budget Act (the "2008-09 Budget Act") was released on September 23, 2008.
The 2008-09 Budget Act reported that the State General Fund began Fiscal Year 2008-09 with a
balance of $4 billion. The 2008-09 Budget Act projected State General Fund revenues and transfers
for Fiscal Year 2008-09 of $102 billion, a decrease of approximately one percent from the
anticipated revenues and transfers for Fiscal Year 2007-2008, and State General Fund expenditures
of $103.4 billion, an increase of approximately 0.06 percent above the anticipated expenditures for
Fiscal Year 2007-08. The 2008-09 Budget Act projected ending Fiscal Year 2008-09 with a State
General Fund balance of $2.6 billion, of which $885 million would be reserved for the liquidation of
encumbrances and $1. 7 billion would be deposited in a reserve for economic uncertainties.
The Governor's economic forecasts for Fiscal Year 2008-09 reflected weaker economIC
performance throughout the country and the State. The 2008-09 Budget Act addressed a projected
$24.3 billion budget shortfall which was identified in the Governor's May Revision to the Proposed
2008-09 Budget with a combination of cuts in expenditures and projections of increased revenues.
The 2008-09 Budget Act included vetoes on behalf of the Governor in the amount of $5 I 0 million of
spending approved by the State Legislature. The 2008-09 Budget Act included a proposal to increase
the Budget Stabilization Account (the "BSA") from five percent of State General Fund expenditures
to 12.5 percent. In addition, the 2008-09 Budget Act proposed an annual transfer to the BSA of three
percent of the General Fund and the elimination of the ability to suspend such annual transfers. The
State would only be permitted to transfer funds from the BSA if (I) actual revenues during such
fiscal year are below a specified level and (2) funds transferred from the BSA to the State General
Fund are appropriated in a stand-alone bill.
Certain of the features of the 2008-09 Budget Act affecting Local Agencies included the
following:
I. The 2008-09 Budget Act proposed to fully fund the Proposition lA loan repayment
for Fiscal Year 2008-09 in the amount of $83 million and the Proposition 42 transfer in the amount
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552174 032699 OS
of $1.4 billion, which allocation included $573 million to the State Transportation Improvement
Program and $286 million to the Public Transportation Account.
2. The Highway Safety, Traffic Reduction, Air Quality, and Port Security Bond Act of
2006 ("Proposition IB") authorized $19.92 billion over the next nine years to fund existing and new
statewide transportation-related infrastructure programs and projects. Such amount included
appropriations in Fiscal Year 2008-09 of $350 million for local transit, $250 million for local streets
and roads, $20 I million for the State & Local Partnership Program and $21 million for local seismic
funding. In addition, AB 1252, enacted in June 2008, provided $149 million from Proposition I B to
accelerate funding for local streets and roads projects.
3. Chapter 72 of the Statutes of 2005 requires the payment of mandated costs incurred
prior to Fiscal Year 2004-05 to begin in Fiscal year 2006-07 and paid over a term of fifteen years.
The 2008-09 Budget Act included the elimination of $75 million in estimated reimbursement claims.
The 2008-09 Budget Act delayed the third payment of these claims by one year. The 2008-09 Budget
Act projected that the mandated costs incurred prior to 2004-05 is $956 million.
4. The 2008-09 Budget Act included a veto from the Governor reducing proposed
Department of Social Services funding for the California Work Opportunity and Responsibility to
Kids ("CalWORKs") program in the amount of $70 million. Prior to this veto, such funding would
have been available to counties as part of their single allocation and available for county
administration, employment services, and child care.
5. The 2008-09 Budget Act permanently suspended provision of the June 2008 and June
2009 State Supplementary Payment program cost of living adjustment ("COLA"). The 2008-09
Budget Act provided the State Director of Finance with mid-year authority to freeze the COLA, rate
increases or increases in state participation in local costs for up to 120 days and require the Govemor
to submit urgency legislation to permanently suspend the COLA and other rate increases; provided,
however, if the Governor fails to act within 120 days, or the State Legislature fails to adopt the
suspension, the COLA and other rate increases are reinstated.
6. The 2008-09 Budget Act reflected savings to the State of $107.2 million, of which
$53.4 million is attributed to the General Fund, in funding for counties to determine eligibility for
Medi-Cal services.
7. The 2008-09 Budget Act included $1.49 billion in Mental Health Services Act
("MHSA") funds for Proposition 63, of which $100 million is committed by counties to the MHSA
Housing Program. This funding was in addition to $300 million identified by counties in Fiscal Year
2007 08. This program makes funding available through the California Housing Finance Agency to
develop permanent supportive housing serving persons with serious mental illness who are homeless
or at risk ofhomelessness.
8. The 2008-09 Budget Act included a veto from the Governor, which reduced proposed
funding for the Department of Social Services for County Administration and Automation Projects to
$1,192,736,000 from $1,194,774,000. By eliminating funding for the Work Incentive Nutritional
Supplement program in the amount of by $2,038,000, the Governor delayed implementation of this
program for one year in order to allow the Department of Social Services to study this program and
ensure it is consistent with federal rules.r
12
55217.41132699 OS
9. The 2008-09 Budget Act included a veto from the Governor reducing proposed
Department of Corrections funding for Adult Corrections and Rehabilitation Operations by
approximately $28 million to approximately $4.9 billion.
Legislative Analyst's Office Analysis of the 2008-09 Budget Act; November Special Session
Proposals; Projections Through 2013-14. In November 2008, the Legislative Analyst's Office (the
"LAO") released a report entitled "California Spending Plan 2008-09; The Budget Act and Related
Legislation" (the "LAO Spending Plan Report"), which provides an analysis by the LAO of the
2008-09 State Budget. The LAO Spending Plan Report and other reports of the LAO are available
on the LAO website at www.lao.ca.gov. Information on the website is not incorporated herein by
reference.
The LAO stated that the 2008-09 Budget Act, combined with proposals set forth in the
November Special Session in February 2008, contained approximately $24 billion in one-time
solutions to close the budget gap and projected a General Fund reserve of $1.7 billion. Key revenue
solutions included, among other things, the sale of an additional $3.3 billion in Economic Recovery
Bonds during the spring of 2008, acceleration of tax payments (estimated payments and limited
liability company fee payments), changes to the State's accounting practices to accrue $1.9 billion
earlier, enforcement of new penalties on corporations for underpayment of taxes, suspension of net-
operating loss deductions for two years for larger companies and restrictions on larger companies on
the use of specified business-related tax credits in 2008 and 2009. The LAO stated that the budget
solutions are one-time in nature and the State will continue to face multibillion dollar operating
shortfalls in the coming years absent corrective action. Further, the LAO stated that the effects of
economic slowdown which has occurred throughout the United States threaten the viability of the
2008-09 Budget Act.
On November II, 2008 the LAO released a report entitled "Overview of the Governor's
Special Session Proposals" (the "LAO Special Session Overview"), which provided an analysis of
the Governor's proposals made during the November Special Session, which included tax increases,
spending reductions and modifications related to cash management, stimulating the economy,
unemployment insurance and mortgages. The LAO stated that, absent corrective action, the State will
face annual budget shortfalls in the range of$22 billion through 2013-14. According to the LAO, the
revenue assumptions underlying the 2008-09 Budget Act were overly optimistic and State revenues
were projected to decline $25 billion over the next two years.
The Governor proposed spending reductions to, among other things, Proposition 98 funding,
Medi-Cal, social services such as CalWORKS and higher education. According to the LAO, the
Governor's November Special Session proposals could decrease the projected budget gap in Fiscal
Year 2008 09 and Fiscal Year 2009 10 and leave $169 million in reserve. However, the LAO
projected that the State's budget deficit will grow again after programs such as the Governor's
proposed three-year sales tax increase terminate. According to the LAO Special Session Overview,
the Governor's proposals, if enacted, could reduce the State's budget deficit through Fiscal Year
2013-14 by roughly 50 percent.
The LAO recommended the State Legislature take action to generate savings in Fiscal Year
2008-09 that could carry-over into Fiscal Year 2009-10. Such action could allow local governments
and public entities more time to plan and mitigate adverse effects ofreductions or program changes.
Further, the LAO recommended that the Legislature consider carefully the duration of the Governor's
proposed tax increases and that any such increase should be in effect for at least a three-year period.
The LAO recommends, among other things, increasmg vehicle license fees by one percent and
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55217.4 032699 OS
making such increase the foundation of a program realignment with local governments. The LAO
proposed that the $1.6 billion allocated from the State to criminal justice and mental health programs
be realigned to counties and supported by the revenues raised by the increased vehicle license fees
and most of the vehicle license fees revenue currently retained by the Department of Motor Vehicles.
On November 20,2008 the LAO released a report entitled "California's Fiscal Outlook: LAO
Projections, 2008-09 Through 2013-14" (the "LAO Projections"). The LAO Projections provided a
further analysis of the LAO Special Session Overview and projections of the State's General Fund
revenue and expenditures through Fiscal Year 2013-14 (the "Forecast Period").
According to the LAO, the continuation of the credit crisis and the decline in stock prices
will erode the State's revenue collections. Further, the LAO Projections stated that without corrective
action, General Fund revenues and transfers will decline by $8.7 billion in Fiscal Year 2008-09, $6.9
billion in Fiscal Year 2009-10, and will increase modestly through Fiscal Year 2013-14. The LAO
estimates that General Fund expenditures will increase from $104.5 billion in Fiscal Year 2008-09 to
$106.3 billion in Fiscal Year 2009-10. The LAO projected that through the Forecast Period annual
rates of increase in spending major program areas will be as follows: Proposition 98 spending at 2.2
percent, Medi-Cal at 6.1 percent, In-Home Supportive Services ("IHSS") at 7.9 percent, Department
of Corrections and Rehabilitation at 2.6 percent (taking into consideration court-ordered increases in
healthcare costs and salary increases) and debt-service expenses for general obligation and lease-
revenue bonds at 9.9%.
The LAO recommended that the Legislature take early action, decrease spending and
increase revenue, create solutions that have ongoing impacts, restructure State programs to increase
efficiency and curb additional State borrowing in order to balance the budget for the current Fiscal
Year and Fiscal Year 2009 10.
Governor's Proposed Fiscal Year 2009-10 State Budget
On December 31, 2008, the Governor released the 2009-10 Proposed Budget. The 2009-10
Proposed Budget estimates that the State will end Fiscal Year 2008-09 with a $14.8 billion General
Fund deficit which, if unaddressed, could increase to $41.6 billion by the end of Fiscal Year 2009-10.
The 2009-10 Proposed Budget projects that, presuming the adoption of the proposals included in the
2009-10 Proposed Budget, Fiscal Year 2008-09 will end with revenues and transfers of $91.1 billion,
expenditures of total $92.4 billion and a State General Fund balance of $1 billion, all attributable to
the reserve for liquidation of encumbrances, and Fiscal Year 2009-10 will end with revenues and
transfers of $97.7 billion, expenditures of total $95.5 billion and a State General Fund balance of
$3.2 billion, of which $1 billion is attributable to the reserve for liquidation of encumbrances and
$2.2 billion is attributable to the State's available reserve.
The 2009-10 Proposed Budget addresses the projected deficit through spending reductions,
revenue increases and accounting changes, including issuing $4.7 billion in revenue anticipation
warrants, reducing the value ofthe dependent credit for income tax purposes beginning with the 2009
tax year to increase tax receipts by $1.4 billion annually, assuming $5 billion in anticipated proceeds
associated with the securitization of lottery revenues (subject to voter approval), redirecting $500
million in revenues from Proposition 10's cigarette tax and Proposition 63's income tax surcharge to
benefit the General Fund propositions (subject to voter approval), and reducing K-14 education
spending obligations by deferring $2.8 billion in Fiscal Year 2008 09 costs, enacting several
accounting changes and allowing districts to shorten the school year by up to five days in Fiscal 2009
10. In order to increase revenues, the 2009-10 Proposed Budget proposes, among other things, a
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temporary sales tax increase of$0.015 and an extension of the sales and use tax to include additional
services, an increase of $0.05 on the alcohol excise tax. The proposals set forth in the 2009-10
Proposed Budget are in addition to those proposals announced during the November Special Session.
The 2009-10 Proposed Budget projects that the California economy will experience negative
growth in 2009, followed by weak growth in 2010 and additional growth in 2011 and personal
income will grow 2 percent in 2009, 2.1 percent in 2010, and 4.6 percent in 2011, as compared to 3.7
percent in 2008. The 2009-10 Proposed Budget reflects for 2009 an assumed state personal income
growth of 2.0 percent (lowered from 2.2 percent) and an expected decline in employment of 1.6
percent (increased from 1.2 percent). The State's unemployment rate increased to 8.4 percent in
November 2008 from 5.9 percent in January 2008.
Certain of the features of the 2009-10 General Fund Proposals affecting Local Agencies
include the following:
1. The 2009-10 Proposed Budget proposes an increase of $131 million for current State
reimbursable mandates but defers an additional $91 million that that the State would have paid for
pre-Proposition IA mandates.
2. The 2009-10 Proposed Budget proposes to create a Local Safety and Protection
Account beginning Fiscal Year 2008-09 into which Vehicle License Fee funds will be directed to
provide ongoing funding for the Citizens Option for Public Safety program, the Juvenile Justice
Crime Prevention Act program, juvenile probation grants and the book fee program. Overall
expenditures for these programs will be reduced by $60.6 million in Fiscal Year 2008 09 and $38.5
million (approximately 10 percent) in Fiscal Year 2009-10.
3. The 2009-10 Proposed Budget includes spending reductions to the Medi-Cal Program
through, among other things, the suspension of the statutory COLA for county administration of the
Medi-Cal Program ($49.4 million in savings in Fiscal Year 2008-09), the elimination of optional
benefits for adults ($40 million in savings in Fiscal Year 2008-09 and $259 million in Fiscal Year
2009-10), an increase in Medi-Cal's share of cost requirements for the Aged, Blind and Disabled
program ($29 million in savings in Fiscal Year 2008-09 and $372 million in Fiscal Year 2009-10)
and a reduction in income eligibility for certain Medi-Cal programs ($5 million in savings in Fiscal
Year 2008-09 and $176 million in Fiscal Year 2009-10).
4. The 2009-10 Proposed Budget proposes the reduction of reimbursement rates for
public hospitals by $54.2 million.
5. The 2009-10 Proposed Budget includes spending reductions to the CalWORKS
Program through, among other things, the suspension of the county CalWORKs Pay for Performance
incentive program ($40 million in savings in Fiscal Year 2009-10), the suspension of the July 2009
COLA ($79 million in savings in Fiscal Year 2009-10) and the imposition of additional time limits
and modification of eligibility requirements for various types of assistance under CalWORKs
($123.5 million in savings in Fiscal Year 2008-09 and $696.9 million in Fiscal Year 2009-10).
6. The 2009-10 Proposed Budget proposes the suspension of the June 2010 State
SSVSSP COLA ($27 million in savings in Fiscal Year 2009-10 and $323.9 million annualized
savings beginning in Fiscal Year 2010-11), reduction of the SSP grant to the federally required
minimum and elimination of the Cash Assistance Program for Immigrants ($200 million in savings
in Fiscal Year 2008-09 and $1.25 billion in Fiscal Year 2009-10).
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7. The 2009-10 Proposed Budget proposes to eliminate the State's share of costs for the
least-needy recipients of IHSS and reduce the State's portion of IHSS provider wages to the State
minimum for $62.7 million in savings in Fiscal Year 2008-09 and $384.2 million in savings in Fiscal
Year 2009-10.
8. The 2009-10 Proposed Budget proposes to save $275 million by diverting funding for
the California Children and Families Commission ("CCFC"), created pursuant to Proposition 10 to
provide, among other things, education, healthcare and childcare to local communities, and redirect
CCFC funding and 50 percent oflocal funding therefore to the Department of Social Services
9. The 2009-10 Proposed Budget proposes to use approximately 5227 million In
Proposition 63 funds to finance the State' s mental health managed care program, subject to
amendment of Proposition 63's enacting legislation.
10. The 2009-10 Proposed Budget maintains an allocation of $92 million for the
Youthful Offender Block Grant, a program intended to support counties' abilities to provide local
programming and supervision for youthful offenders.
Legislative Analyst's Office Analysis of the 2009-]0 Proposed Budget. On January 8, 2009,
the LAO released a report entitled "Overview of the Governor's Budget" (the "2009 LAO Budget
Overview"), which provides an analysis by the LAO of the 2009-10 Proposed Budget.
In the 2009 LAO Budget Overview, the LAO states that the 2009-10 Proposed Budget is
generally reasonable but will be subject to risks associated with further deterioration of the economy
and costs that the State is likely to incur but are not included in the 2009-10 Proposed Budget. The
LAO also states that the 2009-10 Proposed Budget relies heavily on State borrowing that is subject to
voter approval, the favorable resolution of legal questions and access to credit markets. The LAO
recommends that the State Legislature, among other things, adjust the timing of the special election
to provide an opportunity to develop alternatives in the event the proposed ballot measures are
defeated, adopt more strategic programmatic reductions and revenue increases, and adopt more ballot
proposals to generate additional savings, provide greater budgetary flexibility and reduce legal risks.
State Budget for Fiscal Year 2009-10
On February 20, 2009, the Governor signed into law the budget for Fiscal Year 2009-10
(the "2009-10 Budget Act"). Thc 2009-10 Budget Act aims to address the State's projected $41
billion deficit and contains mid-year reductions to the 2008-09 Budget Act. The following are some
of the major impacts ofthe 2009-10 Budget Act on counties across the State, including the County:
1. The 2009-10 Budget Act includes deferrals of payments to counties for social
services and transportation. For February, March and April 2009, monthly transfers of fuel excise
tax allocations to cities and counties will be deferred. Payments are scheduled to resume and
deferred payments will be paid in May 2009. The 2009-10 Budget Act also authorizes two-month
deferrals of health and social services payments to counties from July and August to September
2009. Counties are scheduled to receive deferred payments from the State by September 30, 2009.
Counties with populations under 40,000 persons are exempt from the deferral of payments for social
serVIces.
2. The 2009-10 Budget Act also includes a number of cuts and revenues tied to the 2009
Federal Stimulus Act. Certain cuts to CalWORKS ,,'fants, Medi-Cal benefits and reimbursements,
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SSI!SSP grants, IHSS, the judicial branch and higher education are scheduled to be enacted in statute
and could be turned off if expected revenues from the 2009 Federal Stimulus Act are certified by the
Department of Finance to equal $10 billion, including revenues anticipated to be received by June 30,
2010. If revenues from the 2009 Federal Stimulus Act are not sufficient to meet the $10 billion
target, the cuts would be permanent. If revenues from the 2009 Federal Stimulus Act reach $10
billion, the cuts would not go into effect. Future statute would be required to enact the cuts should
they become necessary.
3. The 2009-10 Budget Act increases personal income tax liability by 0.25 percent in
each personal income tax bracket, although the rate will drop to 0.125 percent if revenues from the
2009 Federal Stimulus Act reach $10 billion.
4. The 2009-10 Budget Act increases the VLF rate from 0.65 percent to 1.15 percent,
0.15 percent of which will be dedicated to local public safety programs. The remaining 0.35 percent
of the increase will be deposited into the State's general fund. The 2009-10 Budget Act also imposes
a 0.65 percent rate on commercial vehicles. The higher rates are scheduled to take effect on May 19,
2009 and last until July 1,2011, with a possible two-year extension under certain circumstances. See
"Vehicle License Fees" herein.
5. Under the 2009-10 Budget Act, the State's portion of the sales and use taxes would
increase by one percent, beginning April 1, 2009 and lasting until July 1, 2011, with a possible one-
year extension under certain circumstances.
Revision to tbe 2009-10 Proposed Budget
[TO COME]
LAO Overview of the Revision.
[TO COME]
Future State Budgets
No prediction can be made by the Local Agencies as to whether the State will encounter
budgetary problems in this or in any future Fiscal Years, and if it were to do so, it is not clear what
measures would be taken by the State to balance its budget, as required by law. In addition, the
Local Agencies cannot predict the final outcome of future State budget negotiations, the impact that
such budgets will have on its finances and operations, the outcome or impact of future ballot
measures and legislation, or what actions will be taken in the future by the State Legislature and
Governor to deal with changing State revenues and expenditures. Current and future State budgets
will be affected by national and State economic conditions and other factors, including the current
economic downturn, over which the Local Agencies have no control.
Impact of Emergency Economic Stabilization Act of 2008 on tbe Local Agencies
In October 2008, the United States Congress passed the Emergency Economic Stabilization
Act of 2008 (the "2008 Act") in an effort to stabilize the country's financial system and restore
confidence in the credit markets. The 2008 Act established the Troubled Assets Relief Program
("T ARP") and provides $700 billion for the Treasury Department to purchase failing bank assets.
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The 2008 Act also included language requiring the Treasury Secretary to consider the investment
losses of local governments resulting from the collapse of certain financial institutions.
The Treasury Secretary has not exercised his authority to assist local governments under the
2008 Act. In response, Senator Dianne Feinstein introduced the Troubled Assets Relief Program for
Local Governments Act of 2009, which would require the Treasury Department to reimburse
counties and cities for their losses from highly rated investments held with the failed financial
institutions. As of January 6, 2009, this Act has been referred to the Committee on Banking,
Housing, and Urban Affairs.
Impact of the 2009 Federal Economic Stimulus Package on the Local Agencies
On February 17, 2009, the President of the United States signed The American Recovery
and Reinvestment Act of 2009 (the "2009 Federal Stimulus Act") into law. The 2009 Federal
Stimulus Act intends to stimulate the economy by reducing taxes and creating jobs directly and
indirectly through the funding of various infrastructure projects and other programs by up to $828
billion. One of the stated purposes of the 2009 Federal Stimulus Act is to stabilize state and local
government budgets, in order to minimize and avoid reductions in essential services and state and
local tax increases.
The Local Agencies stand to benefit both directly and indirectly from the 2009 Federal
Stimulus Act. The 2009 Federal Stimulus Act includes a variety of funding mechanisms including
block grants, competitive grants and loans. The 2009 Federal Stimulus Act also includes increases to
some existing formula-based grants and payments.
The 2009 Federal Stimulus Act provides funds for the Energy Efficiency and Conversation
Block Grant program, which would help state and local governments implement innovative practices
to improve energy efficiency, lower energy usage, and reduce greenhouse gas emissions. Additional
energy-efficiency programs funded by the 2009 Federal Stimulus Act that may benefit the Local
Agencies include grants to encourage electric transportation, federal aid to help state and local
governments purchase efficient alternative fuel vehicles, and various grants and loans to state and
local governments for diesel emissions reduction projects.
The 2009 Federal Stimulus Act also includes funding for road, highway and transit
infrastructure improvements, including funding for upgrades and repairs to modernize existing transit
systems.
The 2009 Federal Stimulus Act also provides funding for health information technology
projects, including projects to computerize health records to cut costs and reduce medical errors.
States and local governments are also expected to receive financial aid under the 2009
Federal Stimulus Act. The 2009 Federal Stimulus Act includes a temporary increase in the Federal
Matching Assistance Program for Medicaid, funds for training and employment services, expansion
of the Food Stamp Program, funds for child support enforcement, funds for block grants for the
Temporary Assistance for Needy Families, and an increase to local law enforcement grants. While
some of these funds will go directly to the State and not to the Local Agencies, the 2009 Federal
Stimulus Act may provide some relief to the State's current budget crisis, which, in turn, may help
prevent some of the cuts proposed to County-operated health and welfare programs.
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The specific benefits to the Local Agencies from the 2009 Federal Stimulus Act have not
been quantified at this time. The Local Agencies will continue to monitor the impacts of the 2009
Federal Stimulus Act on their finances, and may modify budgets to adapt to the effects of the 2009
Federal Stimulus Act as necessary.
Security
Military conflicts and terrorist activities may adversely impact the operation of the Local
Agencies. In addition, the Local Agencies may experience a decrease with respect to their revenues
because of any change in economic circumstances as a result of future military conflicts or terrorist
activities. Such a reduction in revenues may include, but is not limited to, a decline in airport,
transient occupancy tax, parking tax, business tax and sales tax revenues.
The Local Agencies are subject to safety and security measures and inspections on a
continuing basis. The Local Agencies do not represent that any existing or additional safety and
security measures will be adequate in the event that terrorist activities are directed against any of the
Local Agencies or that costs of security measures will not be greater than presently anticipated.
Potential Increased Pension and OPEB Funding Obligations
Many factors influence the amount of each Local Agency's pension funding obligation,
including, without limitation, inflationary factors, changes in statutory provisions of applicable
public employee retirement system laws, changes in the levels of benefits provided or in the
contribution rates of such Local Agency, increases or decreases in the number of covered employees,
changes in actuarial assumptions or methods, and differences between actual and anticipated
investment experience of each Local Agency's respective public employee retirement system. Any
of these factors could give rise to additional liability of a Local Agency to its respective public
employee retirement system as a result of which the Local Agency would be obligated to make
additional payments to its respective public employee retirement system.
Additionally, the Governmental Accounting Standards Board released Statement No. 45
("GASB 45"), which establishes standards for the measurement, recognition, and display of post-
employment benefits other than pension benefits, including healthcare and life insurance ("OPEB")
expense/expenditures and related liabilities (assets), note disclosures, and, if applicable, required
supplementary information in the financial reports of state and local governmental employers.
GASB 45 is effective for financial statements for periods beginning after December IS, 2006, for
phase I governments (those with total annual revenues of $100 million or more); after
December 15,2007, for phase 2 governments (those with total annual revenues of $10 million or
more but less than $100 million); and after December IS, 2008, for phase 3 governments (those with
total annual revenues of less than $10 million).
[Generally, most of the Local Agencies are in the process of analysis, planning and
preliminary actions with respect to GASB 45 and OPEB obligations and funding. Some of the Local
Agencies have provided information relating to these matters. See Appendix B for more
information.]
Investment of Funds
All investments, including the Permitted Investments and other investments made by the
Local Agencies, contain a certain degree of risk. Such risks include, but are not limited to, a lower
rate of return than expected, loss of market value and loss or delayed receipt of principal. The
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occurrence of these events with respect to amounts held under the Trust Agreement or by the Local
Agencies could have a material adverse effect on the security of the Notes.
The value of a Local Agency's investment through CaITRUST's Shares Program may change
with market conditions. A Local Agency could lose money on an investment through the Shares
Program or an investment through the Shares Program could underperform other investments. The
Shares Program is subject primarily to interest rate and credit risk. Interest rate risk is the
potential for a decline in bond prices due to rising interest rates. In general, bond prices vary
inversely with interest rates. The change in bond price depends on several factors, including the
bond's maturity date. In general, bonds with longer maturities are more sensitive to changes in
interest rates than bonds with shorter maturities. Credit risk is the possibility that a bond issuer
will fail to make timely payments of interest or principal to an account or series in the Shares
Program.
[C ertam Local Agencies plan to invest Note proceeds in certain Investment Agreements with
variOUS Investment Prm'iders. If the rating of the related Investment Provider by either S&P or
Moody's falls below certain ratings, the Investment Agreement may be (a) collateralized, (b)
assigned to or guaranteed by another investment provider that meets certain ratings criteria or (c)
terminated m accordance with the respective Investment Agreement. In the event of termination of
the Investment Agreement, the Investment Provider is only required to repay the principal of and
accrued but unpaid interest on the investment, in either case with no penalty or premium. See
APPENDIX F - "INVESTMENT OF NOTE PROCEEDS" herein.]
Credit Provider
The banking industry has recently been subject to difficult economic and market conditions
in the United States and internationally. Such economic and market conditions, regulations,
competition or other events could adversely impact the operations anellor finances of the Credit
Provider and could lead to a downgrade of the Credit Provider's ratings.
The Credit Provider's obligation to pay the principal and accrued interest with respect to the
Series 2009A-I Note Participations as and when due under the terms set forth in the Credit
Instrument are subject to the risk that the Credit Provider is unable or unwilling to make payment in
amounts equal to such obligations as a result of bankruptcy, insolvency. reorganization, moratorium,
or other similar laws relating to or affecting the enforcement of creditors' rights generally, now or
hereafter in effect against the Credit Provider or other adverse financial conditions affecting the
Credit Provider Further, the market price of the Series 2009A-l Note Participations may be
adversely affected by the financial condition of the Credit Provider, without regard to the Local
Agencies' financial condition. See "R.A TINGS" herein.
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PARTICIPATING LOCAL AGENCIES INFORMATION
Certain information regarding the individual Local Agencies participating in the Program is
included in the appendices hereto. A table listing the participating Local Agencies, the principal
amount of the Note being issued by each such Local Agency and the principal amount of the Note of
such Local Agency as a percentage of the principal amount of Note Participations is set forth in
APPENDIX A - "NOTE AMOUNT BY LOCAL AGENCY AND SERIES." Certain general
information and a summary of certain budget and financial information for each Local Agency are
set forth in APPENDIX B "LOCAL AGENCY GENERAL AND FINANCIAL
IN FORMA TION." Current and projected cash flows and a description of alternative cash resources
for each Local Agency are included in APPENDIX C - "CASH FLOWS AND AL TERNA TIVE
CASH RESOURCES." Cash flow summary information and projected Note payment coverage for
each Local Agency is set forth in APPENDIX D - "COVERAGE ANALYSIS." A description of
each Local Agency's current intention with respect to the investment of its Note proceeds is provided
in APPENDIX F - "INVESTMENT OF NOTE PROCEEDS."
The information contained herein regarding each Local Agency has been derived from
information provided by such Local Agency, unless otherwise noted. The Authority and the
Underwriters have no reason to believe that any such information is incorrect; however, they have
not verified the accuracy of such information and take no responsibility therefor. Each Local Agency
has represented that the information included herein does not contain any untrue statement of
material fact or omit to state a material fact necessary to make the statements about such Local
Agency contained herein, in light of the circumstances under which they were made, not misleading.
The information regarding the Local Agencies contained in the Appendices hereto is essential
to making an informed investment decision with respect to the Note Participations. Investors are
advised to thoroughly and carefully review such information.
GENERAL LOCAL AGENCY DESCRIPTIONS
There are four types of Local Agencies participating in the Program: counties, cities, fire
protection districts and community services districts. Following are brief summaries of each such
type of Local Agency.
Counties are political subdivisions of the State and are governed by elected boards of
supervisors. Counties generally provide for the health, safety and welfare of their residents. County
revenues are generally comprised of property and other taxes, aid from other government agencies,
license, permit and use fees, and fines, forfeitures and penalties. A substantial portion of county
revenues is derived from the State.
Cities are either general law cities, established under California statutes, or charter cities,
established under the California Constitution and their voter-approved charters. Cities generally
provide for the health, safety and welfare of their residents. Cities are governed by elected city
councils. City revenues are generally composed of property taxes, other taxes, license, permit and
use fees, and fines, forfeitures and penalties. Other taxes may include some or all of sales taxes,
utility user taxes, business taxes, State motor vehicle license fees, transient occupancy taxes, State
cigarene taxes, real property transfer taxes and other miscellaneous taxes. Generally, towns are
considered cities under California law.
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Fire protection districts are special districts established under the California Health and
Safety Code by a vote of the electorate. Fire protection districts may provide fire protection, rescue,
emergency medical, hazardous material emergency response, ambulance and other services relating
to the protection of lives and property. Boards of directors govern fire districts. Fire district
revenues are generally composed of some or all of property taxes, service fees, voter approved
special taxes and assessments.
Community services districts are special districts established under the Community Services
Districts Law by a vote of residents living within the proposed boundaries of the district.
Community services districts provide a wide variety of services, including water, garbage collection.
wastewater management, security, fire protection, public recreation, street lighting, mosquito
abatement, conversion of overhead utilities to underground, library services, ambulance services and
graffiti abatement. Once a community services district is formed, residents elect a board of local
residents to oversee district management and operations. Community services district revenues are
generally composed of property taxes and other charges.
CONSTITUTIO]\'AL AND STATUTORY LIMITATIONS ON
TAXES AND APPROPRIATIONS
Article XIIIA of the California Constitution
In 1978, California voters approved Proposition 13, adding Article XIIIA to the California
Constitution. Article XIIIA was subsequently amended in 1986, as discussed below. Article XIIIA
limits the amount of any ad valorem tax on real property to 1 % of the full cash value thereof, except
that additional ad valorem taxes may be levied to pay debt service on indebtedness approved by the
voters prior to July 1, 1978 and on bonded indebtedness for the acquisition or improvement of real
property which has been approved on or after July 1, 1978 by two-thirds of the voters voting on such
indebtedness. Article XIIIA defines full cash value to mean "the county assessor's valuation ofreal
property as shown on the Fiscal Vear 1975-76 tax bill under 'full cash' or thereafter, the appraised
value of real property when purchased, newly constructed, or a change in ownership have occurred
after the 1975 assessment." This fulL cash value may be increased at a rate not to exceed 2% per year
to account for inflation.
Article XIIIA has subsequently been amended to permit reduction of the "full cash value"
base in the event of declining property values caused by damage, destruction or other factors, and to
provide that there would be no increase in the "full cash value" base in the event ofreconstruction of
property damaged or destroyed in a disaster.
Legislation has been enacted and amended a number of times since 1978 to implement
Article XIIIA. Under current law, local agencies are no longer permitted to levy directly any
property tax (except to pay voter-approved indebtedness). The 1% property tax is automatically
levied by the county and distributed according to a formula among taxing agencies. The fonnula
apportions the tax roughly in proportion to the relative shares of taxes levied prior to 1979.
Increases of assessed valuation resulting from reappraisals of property due to new
construction, change in ownership or from the 2% annual adjustment are allocated among the various
jurisdictions in the "taxing area" based upon their respective "situs." Any such allocation made to a
local agency continues as part of its allocation in future years.
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Article XIIIB of the California Constitution
On November 6, 1979, California voters approved Proposition 4, known as the Gann
Initiative, which added Article XIIIB to the California Constitution Propositions 98 and ] II,
approved by the California voters in 1988 and ] 990, respectively, substantially modified Article
XIIIB. The principal effect of Article XIIIB is to limit the annual appropriations of the State and any
city, county, school district, authority, or other political subdivision of the State to the level of
appropriations for the prior fiscal year, as adjusted for changes in the cost of living and population.
The initial version of Article XIIIB provided that the "base year" for establishing an appropriations
limit was the 1978-79 Fiscal Year, which was then adjusted annually to reflect changes in population,
consumer prices and certain increases in the cost of services provided by these public agencies.
Proposition III revised the method for making annual adjustments to the appropriations limit by
redefining changes in the cost of living and in population. It also required that beginning in Fiscal
Year 1990-91, each appropriations limit must be recalculated using the actual] 986-87 appropriations
limit and making the applicable annual adjustments as if the provisions of Proposition III had been
in effect.
Appropriations subject to limitation of a local government under Article XIIIB include
generally any authorization to expend during a fiscal year the proceeds of taxes levied by or for that
entity and the proceeds of certain State subventions to that entity, exclusive of refunds of taxes.
Proceeds of taxes include, but are not limited to, all tax revenues plus the proceeds to an entity of
government from (I) regulatory licenses, user charges and user fees (but only to the extent such
proceeds exceed the cost of providing the service or regulation), (2) the investment of tax revenues,
and (3) certain subventions received from the State. Article XIIIB permits any government entity to
change the appropriations limit by a vote of the electors in conformity with statutory and
constitutional voting effective for a maximum of four years.
As amended by Proposition III, Article XIIIB provides for testing of appropriations limits
over consecutive two-year periods. ]f an entity's revenues in any two-year period exceed the
amounts permitted to be spent over such period, the excess has to be returned by revising tax rates or
fee schedules over the subsequent two years. As amended by Proposition 98. Article XIIIB provides
for the payment of a portion of any excess revenues to a fund established to assist in financing certain
school needs.
Unitary Property
AB 454 (Chapter 921, Statutes of 1986) provides that revenues derived from most utility
property assessed by the State Board of Equalization ("Unitary Property"), commencing with the
Fiscal Year ]988-89, will be allocated as follows: (i) each jurisdiction will receive up to 102% of its
prior year State-assessed revenue; and (ii) if county-wide revenues generated from Unitary Property
are less than the previous year's revenues or greater than 102% of the previous year's revenues, each
jurisdiction will share the burden of the shortfall or excess revenues by a specified formula. This
provision applies to all Unitary Property except railroads, the valuation of which continues to be
allocated to individual tax rate areas.
The provisions of AB 454 do not constitute an elimination of the assessment of any State-
assessed properties nor a revision of the methods of assessing utilities by the State Board of
Equalization. Generally, AB 454 allows valuation growth or declme of Unitary Property to be shared
by all jurisdictions in a county.
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Proposition 218
On November 5,1996, the voters of the State approved Proposition 218, known as the "Right
to Vote on Taxes Act" Proposition 218 adds Articles XllIC and XllID to the California Constitution
and contains a number of interrelated provisions affecting the ability of local agencies to levy and
collect both existing and future taxes, assessments, fees and charges. The interpretation and
application of Proposition 218 will ultimately be determined by the courts with respect to a number
of the matters discussed below, and it is not possible at this time to predict with certainty the outcome
of such deternlination.
Proposition 218 (Article XIllC) requires that all new local taxes be submitted to the
electorate before they become effective. Taxes for general governmental purposes of a Local
Agency require a majority vote and taxes for specific purposes, even if deposited in such Local
Agency's General Fund, require a two-thirds vote. Further, any general purpose tax which a Local
Agency imposed, extended or increased without voter approval after December 31, 1994 may
continue to be imposed only if approved by a majority vote in an election which must be held within
two years of November 5, 1996.
Proposition 218 (Article XmD) also adds several provisions making it generally more
difficult for local agencies to levy and maintain fees, charges, and assessments for municipal services
and programs. These provisions include, among other things, (i) a prohibition against assessments
which exceed the reasonable cost of the proportional special benefit conferred on a parcel, (ii) a
requirement that assessments must confer a "special benefit," as defined in Article XIIID, over and
above any general benefits conferred, (iii) a majority protest procedure for assessments which
involves the mailing of notice and a ballot to the record owner of each affected parcel, a public
hearing and the tabulation of ballots weighted according to the proportional financial obligation of
the affected party, and (iv) a prohibition against fees and charges which are used for general
governmental services, including police, fire or library services where the service is available to the
public at large in substantially the same manner as it is to property owners.
Proposition 218 (Article XIIIC) also removes limitations on the initiative power in matters of
reducing or repealing local taxes, assessments, fees or charges. No assurance can be given that the
voters of any Local Agency will not, in the future, approve an initiative or initiatives which reduce or
repeal local taxes, assessments, fees or charges currently comprising a substantial part of such Local
Agency's General Fund.
In connection with the sale of the Note Participations, each Local Agency, with the exception
of certain Local Agencies as described in Appendix B, has represented that Proposition 218 will not
materially impact any existing or future taxes, fees and assessments collected by the Local Agency
and that no revenues collected by the Local Agency have been challenged as a result of Proposition
218. See Appendix B for more information.
Proposition 62
Proposition 62, a statutory initiative that was adopted by the voters voting in the State at the
November 4, 1986 general election, (a) requires that any new or higher taxes for general
governmental purposes imposed by local governmental entities be approved by a majority vote of the
voters of the governmental entity voting in an election on the tax, (b) requires that any special tax
(defined as taxes levied for other than general governmental purposes) imposed by a local
governmental entity be approved by a two-thirds vote of the voters of the governmental entity voting
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55217.4 032699 OS
in an election on the tax, (c) restricts the use ofrevenues from a special tax to the purposes or for the
service for which the special tax was imposed, (d) prohibits the imposition of ad valorem taxes on
real property by local governmental entities except as permitted by Article XIIIA of the California
Constitution, (e) prohibits the imposition of transaction taxes and sales taxes on the sale of real
property by local governmental entities, (I) required that any tax imposed by a local governmental
entity on or after August I, 1985 be ratified by a majority vote of the voters voting in an election on
the tax within two years of November 5, 1986 or be terminated by November 15, 1988, and (g)
requires a reduction of ad valorem property taxes allocable to the jurisdiction imposing a tax not in
compliance with its provisions equal to one dollar for each dollar of revenue attributable to the
invalid tax, for each year that the tax is collected.
Following its adoption by the voters, various provisions of Proposition 62 were declared
unconstitutional at the appellate court level. For example, in City of Woodlake v. Logan, 230
Cal.App.3d 1058 (1991) (the "Woodlake Case"), the Court of Appeal held portions of Proposition 62
unconstitutional as a referendum on taxes prohibited by the California Constitution. In reliance on the
Wood lake Case, numerous taxes were imposed or increased after the adoption of Proposition 62
without satisfying the voter approval requirements of Proposition 62.
On September 28, 1995, the California Supreme Court, in Santa Clara County Local
Transportation Authority v. Guardino, 11 Cal. 4th 220 (1995) (the "Santa Clara Case"), upheld the
constitutionality of the portion of Proposition 62 requiring a two-thirds vote in order for a local
government or district to impose a special tax, and, by implication, upheld a parallel provision
requiring a majority vote in order for a local government or district to impose any general tax. In
deciding the Santa Clara Case on Proposition 62 grounds, the Court disapproved the decision in the
Woodlake Case.
The decision in the Santa Clara Case did not address the question of whether it should be
applied retroactively. On June 4, 200 I, the California Supreme Court released Howard Jarvis
Taxpayers Association v. City of La Habra, et al. ("La Habra"). In this decision, the court held that a
public agency's continued imposition and collection of a tax is an ongoing violation, upon which the
statute of limitations period begins anew with each collection. The court also held that, unless
another statute or constitutional rule provided differently, the statute of limitations for challenges to
taxes subject to Proposition 62 is three years. Accordingly, a challenge to a tax subject to Proposition
62 may only be made for those taxes received within three years of the date the action is brought.
In connection with the sale of the Note Participations, each Local Agency, with the exception
of certain Local Agencies as described in Appendix B, has represented that Proposition 62 will not
materially impact any existing or future taxes, fees and assessments collected by the Local Agency
and that no revenues collected by the Local Agency have been challenged as a result of Proposition
62. See Appendix B for more information.
Proposition IA
Proposition lA, proposed by the Legislature in connection with the 2004-05 Budget Act,
approved by the voters in November 2004 and generally effective in Fiscal Year 2007-08, provides
that the State may not reduce any local sales tax rate, limit existing local government authority to
levy a sales tax rate or change the allocation oflocal sales tax revenues, subject to certain exceptions.
Proposition IA generally prohibits the State from shifting to schools or community colleges any
share of property tax revenues allocated to local governments for any fiscal year, as set forth under
the laws in effect as of November 3, 2004. Any change in the allocation of property tax revenues
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among local governments within a county must be approved by two-thirds of both houses of the
Legislature. Proposition 1A provides, however, that beginning in fiscal year 2008-09, the State may
shift to schools and community colleges up to 8% of local government property tax revenues, which
amount must be repaid, with interest, within three years, if the Governor proclaims that the shift is
needed due to a severe state financial hardship, the shift is approved by two-thirds of both houses and
certain other conditions are met. The State may also approve voluntary exchanges of local sales tax
and property tax revenues among local governments within a county. Proposition 1 A also provides
that if the State reduces the VLF rate currently in effect, 0.65 percent of vehicle value. the State must
provide local governments with equal replacement revenues. Further, PropositIOn 1A requires the
State, beginning July 1, 2005, to suspend State mandates affecting cities, counties and special
districts, excepting mandates relating to employee rights, schools or community colleges, in any year
that the State does not fully reimburse local governments for their costs to comply with such
mandates.
PropOSItion lA may result in increased and more stable Local Agencies revenues. The
magnitude of such increase and stability is unknown and would depend on future actions by the
State. However, Proposition 1A could also result in decreased resources being available for State
programs. This reduction, in turn, could affect actions taken by the State to resolve budget
difficulties. Such actions could include increasing State taxes, decreasing spending on other State
programs or other action, some of which could be adverse to the finances ofthe Local Agencies.
Assessment Appeals and Assessor Reductions
Pursuant to California law, a property owner may apply for a reduction of the property tax
assessment for such owner's property by filing a written application, in the form prescribed by the
State Board of Equalization, with the appropriate county assessment appeals board (a "Proposition 8"
appeal). In addition to reductions in assessed value resulting from Proposition 8 appeals, Proposition
8 also allows assessors to reduce assessed value unilaterally to reflect reductions in market value.
Any reduction in the assessment ultimately granted applies only to the year for which
application is made and during which written application is filed. The assessed value increases to its
pre-reduction level for fiscal years following the year for which the reduction apphcation is filed.
However, if the taxpayer establishes through proof of comparable values that the property continues
to be overvalued (known as "ongoing hardship"), a county assessor has the power to grant a
reduction not only for the year for which application was originally made, but also for the then
current year as well. In a similar manner, a county assessor may reassert the pre-appeal level of
assessed value depending on the county assessor's determination of current value.
In addition to reductions in assessed value resulting from Proposition 8 appeals, California
law also allows assessors to reduce assessed value unilaterally based on a general decline in market
value of an area. Although Proposition 8 reductions are temporary and are expected to be eliminated
under Proposition 13 if and when market conditions improve, no assurance is given that such
reductions will be eliminated.
A number of the Local Agencies are likely to be affected by a reduction in taxable property
assessed values due to successful property owner appeals and/or unilateral reductions by a county
assessor. See APPENDIX B "LOCAL AGENCY GENERAL AND FINANCIAL
INFORMATION"
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55217.4 032699 OS
Future Initiatives
Article XIIIA, Article XIJIB, Propositions 218, 62 and I A were each adopted as measures
that qualified for the ballot through California's initiative process. From time to time other initiative
measures could be adopted, further affecting Local Agency revenues.
TAX MATTERS
[TO BE UPDATED BY SPECIAL COUNSEL] In the opimon of Onick, Henington &
Sutcliffe LLP, Special Counsel to the Local Agencies and the Authority, based upon an analysis of
existing laws, regulations, rulings and court decisions, and assuming, among other matters, the
accuracy of certain representations and compliance with certain covenants, interest on the Notes
represented by the Note Participations is excluded from gross income for federal income tax
purposes under Section 103 of the Internal Revenue Code of 1986 (the "Code") and is exempt from
State of California personal income taxes. Special Counsel is of the further opinion that interest on
the Notes represented by the Note Participations is not a specific preference item for purposes of the
federal individual or corporate alternative minimum taxes, although Special Counsel observes that
such interest is included in adjusted current earnings when calculating corporate alternative minimum
taxable income. A complete copy of the proposed form of opinion of Special Counsel is set forth in
APPENDIX H hereto.
Series 2009A Note Participations
Notice 94-84, 1994-2 CB. 559, states that the Internal Revenue Service (the "IRS") is
studying whether the amount of the payment at maturity on short-term debt obligations such as the
Series 2009A Note Participations that is excluded from gross income for federal tax purposes is (i)
the stated interest payable at maturity or (ii) the difference between the issue price of the Series
2009A Note Participations and the aggregate amount to be paid at maturity of the Series 2009A Note
Participations (the "original issue discount"). For this purpose, the issue price of the Series 2009A
Note Participations is the first price at which a substantial amount of the Series 2009A Note
Participations is sold to the public (excluding bond houses, brokers, or similar persons or
organizations acting in the capacity of underwriters, placement agents or wholesalers). Until the IRS
provides further guidance, taxpayers may treat either the stated interest payable at maturity or the
original issue discount as interest that is excluded from gross income for federal income tax
purposes.
However, taxpayers must treat the amount to be paid at maturity on all tax-exempt debt
obligations with a term that is not more than one year from the date of issue in a consistent manner.
Taxpayers should consult their own tax advisors with respect to the tax consequences of ownership
of the Series 2009A Note Participations if original issue discount treatment is elected.
The Note Participations
The Note Participations purchased, whether at original issuance or otherwise, for an amount
higher than their principal amount on the Notes represented by such Note Participations payable at
maturity ("Premium Notes") will be treated as having amortizable bond premium. No deduction is
allowable for the amortizable bond premium in the case of obligations, like the Premium Notes, the
interest on which is excluded from gross income for federal income tax purposes. However, the
amount of tax-exempt interest received, and a Beneficial Owner's basis in a Premium Note, will be
reduced by the amount of amortizable bond premium properly allocable to such Beneficial Owner.
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55217.4 032699 OS
Beneficial Owners of Premium Notes should consult their own tax advisors with respect to the proper
treatment of amortizable bond premium in their particular circumstances.
The Code imposes various restrictions, conditions and requirements relating to the exclusion
from gross income for federal income tax purposes of interest on obligations such as the Note
Participations. The Local Agencies have made certain representations and covenanted to comply
with certain restrictions, conditions and requirements designed to ensure thar interest on the Note
Participations will not be included in federal gross income. Inaccuracy of these representations or
failure to comply with these covenants may result in interest on the Note Participations being
included in gross income for federal income tax purposes, possibly from the date of original issuance
of the Note Participations. The opinion of Special Counsel assumes the accuracy of these
representations and compliance with these covenants. SpeCIal Counsel has not undertaken to
determine (or to inform any person) whether any actions taken (or not taken), or events occurring (or
not occurring), or any other matters coming to Special Counsel's attention after the date of issuance
of the Note Participations may adversely affect the value of, or the tax status of interest on, the Note
Participations. Accordingly, the opinion of Special Counsel IS not intended to, and may not, be relied
upon in connection with any such actions, events or matters.
One of the covenants of the Local Agencies referred to above requires each Local Agency
that does not qualify as a "small governmental issuer" under the Code to reasonably and prudently
calculate the amount, ifany, of excess investment earnings on the proceeds of the Note Participations
which must be rebated to the United States, to set aside from lawfullyavailable sources sufficient
moneys to pay such amounts and to otherwise do all things necessary and within its power and
authority to assure that interest on the Note Participations is excluded from gross income for federal
income tax purposes. Under the Code, if each Local Agency spends 100% of its pro rata share of the
proceeds of the Note Participations within six months after initIal delivery, there is no requirement
that there be a rebate of investment profits in order for interest on the Note Participations to be
excluded from gross income for federal income tax purposes. The Code also provides that such
proceeds are not deemed spent until all other available moneys (less a reasonable working capital
reserve) are spent. The Local Agencies expect to satisfy this expenditure test or, if they fail to do so,
to make any required rebate payment from moneys received or accrued during the 2008-09 fiscal
year. To the extent that any rebate cannot be paid from such moneys, the law of California is unclear
as to whether such covenant would require the Local Agencies to pay any such rebate. This would
be an issue only if it were determined that the Local Agencies' calculations of expenditures of Note
Participations proceeds or ofrebatable arbitrage profits, if any, were incorrect.
Although Special Counsel is of the opinion that interest on the Note Participations is
excluded from gross income for federal income tax purposes and that interest on the Note
Participations is exempt from State of California personal income taxes, the ownership or disposition
of, or the accrual or receipt of interest on, the Note ParticipatIons may otherwise affect a Beneficial
Owner's federal, state or local tax liability. The nature and extent of these other tax consequences
will depend upon the particular tax status of the Beneficial Owner, or the Beneficial Owner's other
items of income or deduction. Special Counsel expresses no opinion regarding any such other tax
consequences.
Future legislative proposals, if enacted into law, clarification of the Code or court decisions
may cause interest on the Notes represented by the Note Participations to be subject, directly or
indirectly, to federal income taxation, or to be subject to or exempted from state income taxation, or
otherwise prevent Beneficial Owners from realizing the full current benefit of the tax status of such
interest. The introduction or enactment of any such future legislatlve proposals, clarification of the
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552174 032699 OS
Code or court decisions may also affect the market price for, or marketability of, the Note
Participations, Prospective purchasers of the Note Participations should consult their own tax
advisors regarding any pending or proposed federal or state tax legislation, regulations or litigation,
as to which Special Counsel expresses no opinion,
The opinion of Special Counsel is based on current legal authority, covers certain matters not
directly addressed by such authorities, and represents Special Counsel's judgment as to the proper
treatment of the Note Participations for federal income tax purposes, It is not binding on the IRS or
the courts, Furthermore, Special Counsel cannot give and has not given any opinion or assurance
about the future activities of the Local Agencies, or about the effect of future changes in the Code,
the applicable regulations, the interpretation thereof or the enforcement thereof by the IRS, The
Local Agencies have covenanted, however, to comply with the requirements of the Code,
Special Counsel's engagement with respect to the Note Participations ends with the issuance
of the Note Participations, and, unless separately engaged, Special Counsel is not obligated to defend
the Local Agencies or the Beneficial Owners regarding the tax-exempt status of the Note
Participations in the event of an audit examination by the IRS, Under current procedures, parties
other than the Local Agencies and their appointed counsels, including the Beneficial Owners, would
have little, if any, right to participate in the audit examination process, Moreover, because achieving
judicial review in connection with an audit examination of tax-exempt bonds is difficult, obtaining an
independent review of IRS positions with which the Local Agencies legitimately disagree may not be
practicable, Any action of the IRS, including but not limited to selection of the Note Participations
for audit, or the course ofresult of such audit, or an audit of bonds presenting similar tax issues may
affect the market price for, or the marketability of, the Note Participations, and may cause the Local
Agencies or the Beneficial Owners to incur significant expense,
The form of proposed opinion of Special Counsel is set forth in APPENDIX H of this
Official Statement Special Counsel expresses no opinion therein on the accuracy, completeness or
sufficiency of this Official Statement or other offering material related to the Note Participations,
LITIGATION
Local Agencies
There is no action, suit or proceeding known to be pending or threatened, restraining or
enjoining the execution or delivery of the Note Participations, the Trust Agreements or the Notes or
in any way contesting or affecting the validity of the foregoing or, any action of the Local Agencies
taken with respect to any of the foregoing,
There is no litigation pending or, to the knowledge of the respective Local Agencies,
threatened, questioning the existence of the Local Agencies, or the title of the officers of the
respective Local Agencies to their respective offices, or the power and authority of the Local
Agencies to issue and deliver the Notes or the Trustee to execute and deliver the related Note
Participations,
For information on litigation concernmg the Local Agencies, see Appendix B attached
hereto,
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The Authority
There is no action, suit or proceeding known to be pending or threatened, restraining or
enjoining the execution or delivery of the Trust Agreements or in any way contesting or affecting the
validity of the foregoing or, any action of the Authority taken with respect to any of the foregoing.
There is no litigation pending or, to the knowledge of the Authority, threatened, questioning
the existence of the Authonty, or the title of the officers of the Authority to their respective offices.
RATIl"GS
Moody's Investors Service, Inc. and Standard & Poor's Rating Services have assigned the
ratings of "_" and "_," respectively, to the Note Participations of each Series. The ratings on
the Sones 2009A-l Note Participations are condItioned on the issuance of the Credit Instrument. See
"SECGRITY AND SOURCE OF PAYMENT - The Credit Instrument" herein. The Local
Agencies supplied certain information to the rating agencies to be considered in evaluating the Note
Participations. Each rating reflects only the views of the rating agency issuing such rating, and any
explanation of the significance of such rating on the Note Participations should be obtained from
such rating agency. There is no assurance that any rating will be retained for any given period of
time or that the same will not be revised downward or withdrawn entirely by the rating agency
issuing such rating if, in its judgment, circumstances so warrant. The Authority undertakes no
responsibility to oppose any downward revision or withdrawal of any rating. Any such downward
revision or withdrawal of any rating may have an adverse effect on the market price of the Note
Participations.
UNDERWRITING
The Local Agencies, the Authority, and Barclays Capital as senior manager and as
representative of the underwriters (the "Underwriters"), have entered into a Note Participation
Purchase Agreement (the "Note Participation Purchase Agreement") pursuant to which the Series
2009A-l Note Participations are to be purchased by the Underwriters at a price of $
(representing the principal amount of S --plus original issue premium of $ less the
Underwriter's discount of $ ), the Series 2009A-2 Note Participations are to be purchased by
the Underwriters at a price of $ (representing the principal amount of S--p]us original
issue premium of $ less the Underwriter's discount of S ), the Series 2009A-3 Note
Participations are to be purchased by the Underwriters at a price of S (representing the
principal amount of$--plus original issue premium of$ less the Underwriter's discount
of $ ), Series 2009A-4 Note Participations are to be purchased by the Underwriters at a price
of $ (representing the principal amount of $--plus original issue premium of $
less the Underwriter's discount of $ ) and the Series 2009B Note Participations are to be
purchased by the Underwriters at a price of S (representing the principal amount of
S plus original issue premium of $ less the Underwriter's discount of $ ).
The Note Participation Purchase Agreement provides that the Underwriters will purchase all of the
Note Participations if any are purchased, the obligations to make such purchase being subject to
certain terrns and conditions set forth in the Note Participation Purchase Agreement, the approval of
certain legal matters by counsel and certain other conditions.
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55217.4 032699 OS
The Underwriters may offer and sell the Note Participations to certain dealers and others at a
price lower than the offering prices stated on the cover hereof. The Underwriters may change the
offering prices from time to time.
CONTINUING DISCLOSURE
Material Events Undertaking
Pursuant to the respective Trust Agreements, the Local Agencies have agreed to give, or
cause to be given, to the Municipal Securities Rulemaking Board (the "MSRB") through its
Electronic Municipal Market Access ("EMMA"), in a timely manner, notice of the following "Listed
Events" with respect to such Local Agency's Note and the Note Participations if determined by the
Local Agency to be material: (I) principal and interest payment delinquencies; (2) non-payment
related defaults, (3) modification to the rights of the Owners; (4) contingent or unscheduled Note or
Note Participation calls; (5) defeasances; (6) rating changes; (7) adverse tax opinions or events
adversely affecting the tax-exempt status of the Notes or the Note Participations; (8) unscheduled
draws on any debt service reserves reflecting financial difficulties; (9) unscheduled draws on the
Credit Instrument (as defined in the Trust Agreement); (10) substitution of the Credit Provider (as
defined in the related Trust Agreement) or any failure by the Credit Provider to perform on the Credit
Instrument reflecting financial difficulties; and (II) any release, substitution, or sale of property
securing repayment of the Notes or Note Participations. These covenants have been made in order to
assist the Underwriters in complying with SEC Rule 15c2-12(b)(5) (the "Rule"). Each Local Agency
has represented that it has never failed to comply in all material respects with any previous
undertakings with regard to the Rule to provide annual reports or notices of material events, except
for certain instances of noncompliance noted in APPENDIX B - "LOCAL AGENCY GENERAL
AND FINANCIAL INFORMATION."
The undertakings regarding material event disclosure set forth in the respective Trust
Agreements may be amended, and any provision thereof may be waived, by written agreement of the
parties thereto, without the consent of the Owners of the Note Participations (except to the extent
required under clause (3)(ii) below), if all of the following conditions are satisfied: (I) such
amendment or waiver is made in connection with a change in circumstances that arises from a
change in legal requirements, a change in law, or a change in the identity, nature or status of the
Participants or the type of business conducted thereby; (2) the undertakings therein as so amended or
waived would, in the opinion of nationally recognized Special Counselor counsel expert in federal
securities laws addressed to the Local Agencies and the Trustee, have complied with the
requirements of the Rule at the time of the primary offering of the Note Participations, after taking
into account any amendments or interpretations of the Rule, as well as any change in circumstances;
(3) the proposed amendment or waiver either (i) is approved by the Owners in the manner provided
in the applicable Trust Agreement for amendments to the Trust Agreements with the consent of the
Owners, or (ii) does not, in the opinion of the nationally recognized Special Counselor counsel
expert in federal securities laws addressed to the Participants and the Trustee, materially impair the
interests of the owners of Note Participations; and (4) the Participants shall have delivered copies of
such opinions and amendment to EMMA.
The Local Agencies' obligations under the applicable Trust Agreement shall terminate upon
the defeasance or payment in full of all of the Notes and the Note Participations. The undertakings in
the applicable Trust Agreement relating to continuing disclosure shall inure solely to the benefit of
the Local Agencies, the Trustee, the Dissemination Agent, the Underwriters and the Owners and
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55217403269905
Beneficial Owners, from time to time of the Note Participations, and shall create no rights in any
other person or entity.
See also APPENDIX G - "DEFINITIONS OF CERTAIN TERMS AND SUMMARY OF
NOTE RESOLUTIONS AND SUMMARY OF TRUST AGREEMENTS - SUMMARY OF
TRUST AGREEMENTS - Continuing Disclosure."
CERTAIN LEGAL MATTERS
At the tIme of the delivery of the Note PartIcipations, Orrick, Herrington & Sutcliffe LLP,
Special Counsel to the Local Agencies and the Authority, Los Angeles, California, will deliver its
final approving opimons in the forms set forth in Appendix H. A copy of such approving opinions
will be av'ailable for delivery with each certificate representing a heneficial interest in the Note
Participations of a Series.
Certain legal matters will be passed upon for the Underwnters by their counsel,
Hawkins Delafield & Wood LLP, San Francisco, California. Certain legal matters will be passed
upon for each Local Agency by its general counseL
'0
.',.c.
5521""1.4 032699 OS
AUTHORIZATION AND APPROVAL
This Official Statement, and its 'distribution and use by the Underwriters, have been duly
authorized and approved by the Authority as agent for and on behalf of the Local Agencies,
CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY, as agent
for and on behalf of the Local Agencies
By
Authorized Signatory
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55217.4 032699 OS
APPENDIX A
NOTE AMOUNT BY LOCAL AGENCY AND SERIES
This Appendix contains tables listing the participating Local Agencies. the principal amount
of the Note being issued by each such Local Agency and the principal amount of the Note of such
Local Agency as a percentage of the principal amount ofthe related Series of Note Participations.
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55217.4 032699 OS
APPENDIX B
LOCAL AGENCY GENERAL AND FINANCIAL INFORMATION
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052! 7.4 032699 OS
APPENDIX C
CASH FLOWS AND ALTERNATIVE CASH RESOURCES
This Appendix contains current and projected cash flows and a description of alternative cash
resources for each Local Agency. It should be noted that cash flows may include general governmental
cash receipts and disbursements attributable to funds other than the "General Fund" as disclosed in a
given Local Agency's annual financial statements. The projected cash flow amounts are projections
only: there can be no assurance that such projections will be realized. Further. investors should note that
amounts shown as alternative cash resources for a Local Agency will not necessarilv be a\'ailab1e for the
payment of the Note of such Local Agency.
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55217.4032699 OS
APPENDIX D
COVERAGE ANALYSIS
This appendix contains cash flow summary information and projected Note payment coverage
for each Local Agency. Such cash flows and payment coverage are projections only; there can be no
assurance that such projections will be realized.
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55217.4032699 OS
APPENDIX E
REPAYMENT DATES AND REPAYMENT MONTHS, PERCENTAGES A_NO AMOUNTS
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E-l
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APPENDIX F
INVESTMENT OF NOTE PROCEEDS
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552174032699 OS
APPENDIX G
DEFINITIONS OF CERTAIN TERMS AND
SUMMARY OF NOTE RESOLUTIONS AND SUl\1J\lARY OF TRUST AGREEMEI\TS
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552J 7.4 032699 OS
APPENDIX H
PROPOSED FORMS OF SPECIAL COUNSEL OPINION
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APPENDIX I
THE BOOK-ENTRY-ONLY SYSTEM
The informarion in this Appendix concerning The Depositol}' Trust Company ("DTC), New
York, New York, and DTCs book entry system has been obtained from DTC and the Local Agencies
and the Authority take no responsibility for the completeness or accuracy thereof The Local
Agencies cannot and do not give any assurances that DTe. DTC PartIcipants or Indirect
Participants will distribute 10 the Beneficial Owners (a) payments of interest, principal or premium,
I( an\', with re.lpectlo the NOIe Parricipations, (b) certljicales representing ownership znlerest in or
other cOIl(irmalioll or oWllership intereSI ill the Nole Parricipations, or (C) redemption or other
Ilolices sent to DTC or Cede & Co., its nominee, as the regislered owner of the Note Participations,
or that the)' will so do on a timely basis, or that DTe. DTC Participants or DTC Indirect
Participants will act in the manner described in this Appendix. The current "Rules" applicable to
DTC are onfile with the Securities and Exchange Commission and the current "Procedures" o( DTC
to befollowed in dealing with DTC Participants are onfile with DTe
The Depository Trust Company ("DTC"), New York, NY, will act as securities depository
for the Note Participations. The Note Participations will be prepared in the form of fully registered
securities registered in the name of Cede & Co. (DTC' s partnership nominee) or such other name as
may be requested by an authorized representative of DTe. One fully registered security certificate
will be executed and delivered for each maturity of the Note Participations, each in the aggregate
principal amount of such maturity, and will be deposited with DTe.
DTC is a limited-purpose trust company organized under the New York Banking Law, a
"banking organization" within the meaning of the New York Banking Law, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial
Code, and a "clearing agency" registered pursuant to the provisions of Section 17 A of the Securities
Exchange Act of 1934. DTC holds and provides asset servicing for over 3.5 million issues of U.S.
and non-U.S. equity issues, corporate and municipal debt issues, and money market instruments
(from over 100 countries) that DTC's participants ("Direct Participants") deposit with DTe. DTC
also facilitates the post-trade settlement among Direct Participants of sales and other securities
transactions in deposited securities, through electronic computerized book-entry transfers and
pledges between Direct Participants' accounts. This eliminates the need for physical movement of
securities certificates. Direct Participants include both U.S. and non-U.S. securities brokers and
dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a
whoJly-owned subsidiary of The Depository Trust & Clearing Corporation ("DTCC"). DTCC is the
holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing
Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its
regulated subsidiaries. Access to the DTC system is also available to others such as both U.S. and
non-U.S. securities brokers and dealers, banks, trust companies, and clearing corporations that clear
through or maintain a custodial relationship with a Direct Participant, either directly or indirectly
("Indirect Participants"). DTC has Standard & Poor's highest rating: AAA. The DTC Rules
applicable to its Participants are on file with the Securities and Exchange Commission. More
information about DTC can be found at www.dtcc.com and www.dtc.org; nothing contained in such
websites is incorporated into this Official Statement.
Purchases of the Note Participations under the DTe system must be made by or through
Direct Participants, which will receive a credit for the Note Participations on DTC's records. The
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552174032699 OS
ownership interest of each actual purchaser of each Security ("Beneficial Owner") is in turn to be
recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive written
confirmation from DTC of their purchase. Beneficial Owners are, however, expected to receive
written confirmations providing details of the transaction, as well as periodic statements of their
holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the
transaction. Transfers of ownership interests in the Note Participations are to be accomplished by
entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership interests in the Note
Participations, except in the event that use of the book-entry system for the Note Participations is
discontinued.
To facilitate subsequent transfers, all Note Participations deposited by Direct Participants
with DTC are registered in the name of DTC's partnership nominee, Cede & Co., or such other name
as may be requested by an authorized representative of DTC. The deposit of the Note Participations
with DTC and their registration in the name of Cede & Co. or such other DTC nominee do not effect
any change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the
Note Participations; DTC's records reflect only the identity of the Direct Participants to whose
accounts such Note Participations are credited, which mayor may not be the Beneficial Owners. The
Direct and Indirect Participants will remain responsible for keeping account of their holdings on
behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants, by Direct
Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial
Owners will be governed by arrangements among them, subj ect to any statutory or regulatory
requirements as may be in effect from time to time. Beneficial Owners of the Note Participations
may wish to take certain steps to augment the transmission to them of notices of significant events
with respect to the Note Participations, such as redemptions, tenders, defaults, and proposed
amendments to the Security documents. For example, Beneficial Owners of the Note Participations
may wish to ascertain that the nominee holding the Note Participations for their benefit has agreed to
obtain and transmit notices to Beneficial Owners. In the alternative, Beneficial Owners may wish to
provide their names and addresses to the registrar and request that copies of notices be provided
directly to them.
Redemption notices shall be sent to DTC. Ifless than all of the Note Participations are being
redeemed, DTC's practice is to determine by lot the amount of the interest of each Direct Participant
in such issue to be redeemed.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect
to the Note Participations unless authorized by a Direct Participant in accordance with DTC's
Procedures. Under its usual procedures, DTC mails an Omnibus Proxy to the issuer as soon as
possible after the record date. The Omnibus Proxy assigns Cede & Co. 's consenting or voting rights
to those Direct Participants to whose accounts the Note Participations are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
Payments of principal of, premium, if any, and interest evidenced by the Note Participations
will be made to Cede & Co., or such other nominee as may be requested by an authorized
representative of DTC. DTC's practice is to credit Direct Participants' accounts upon DTC's receipt
of funds and corresponding detail information from the Authority or the Trustee, on payable date in
accordance with their respective holdings shown on DTC's records. Payments by Participants to
1-2
55217.4 032699 OS
Beneficial Owners will be governed by standing instructions and customary practices, as is the case
with securities held for the accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such Participant and not of DTC (nor its nominee), the Trustee, or the
Authority, subject to any statutory or regulatory requirements as may be in effect from time to time.
Payment of principal of, premium, if any, and interest evidenced by the Note Participations to Cede
& Co. (or such other nominee as may be requested by an authorized representative of DTC) is the
responsibility of the Authority or the Trustee, disbursement of such payments to Direct Participants
will be the responsibility of DTC, and disbursement of such payments to the Beneficial O\\llers will
be the responsibility of Direct and Indirect Participants.
THE AUTHORlTY, THE PARTICIPANTS OR THE TRUSTEE WILL NOT HAVE ANY
RESPONSIBILITY OR OBLIGATION TO DTC PARTICIPANTS, INDIRECT PARTICIPANTS
OR BENEFICIAL OWNERS WITH RESPECT TO THE PAYMENTS OR THE PROVIDING OF
NOTICE TO DTC PARTICIPANTS, INDIRECT PARTICIPANTS OR BENEFICIAL OWNERS
OR THE SELECTION OF NOTE PARTICIPATIONS FOR PREPAYMENT.
None of the Authority, the Participants or the Trustee can give any assurances that DTC,
DTC Participants, Indirect Participants or others will distribute payments of principal of, premium, if
any, and interest evidenced and represented by the Note Participations paid to DTC or its nominee, as
the registered Owner, or any redemption or other notice, to the Beneficial Owners or that they will do
so on a timely basis or that DTC will serve and act in a manner described in this Official Statement.
DTC may discontinue providing its services as depository with respect to the Note
Participations at any time by giving reasonable notice to the Authority or the Trustee. Under such
circumstances, in the event that a successor depository is not obtained, Security certificates are
required to be printed and delivered.
The Authority may decide to discontinue use of the system of book-entry transfers through
DTC (or a successor securities depository). In that event, Note certificates will be printed and
delivered.
The information in this appendix concerning DTC and DTC's book-entry system has been
obtained from sources that the Local Agencies and the Authority believe to be reliable, but the Local
Agencies and the Authority take no responsibility for the accuracy thereof.
!-3
;,217403269905
APPENDIX J
SPECIMEN LETTER OF CREDIT
1-1
552174032699 OS
TRUST AGREEMENT
by and between
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee,
CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPME1\T AUTHORITY
and
CERTAIN LOCAL AGENCIES
NAMED HEREIN
CALIFORNIA COMMUNITIES
TAX AND REVENUE ANTICIPATION NOTE PROGRAM
NOTE PARTICIPATIONS
SERIES 2009A-l
Dated as of July 1,2009
':~)HS \Vest:260611460,3
T ABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; EQUAL SECURITY.
............. 3
Section 1.01. Definitions................................ ............................................ .............3
Section 1.02. Equal Security......................... .............................:........................... 11
ARTICLE II CONDITIONS AND TERMS OF NOTE PARTICIPATIONS.................. 12
Section 2.01.
Section 2.02.
Section 2.03.
Section 2.04.
Section 2.05.
Section 2.06.
Section 2.07.
Section 2.08.
Section 2.09.
Preparation of Note Participations ..................................................... 12
Denominations, Medium. Method and Place of Payment and
Dating of Note Participations... ......... ....... ......... ... .................. ............ 12
Tenns of the Note Participations ....................................................... 13
Form of Note Participations........ ...... ....... ............. .... ...... ..... .... ... ....... 13
Execution of Note Participations ......................... ............................. 13
Transfer and Exchange of Note Participations.. ............................... 13
Note Participation Registration Books............................................... 13
Temporary Note Participations .... ..................................................... 14
Note Participations Mutilated. Destroyed, Lost or Stolen ..... ........... 14
Section 2.10. Special Covenants as to Book-Entry-Only System ............. ............. 15
ARTICLE III PROCEEDS OF NOTE PARTlClPA TIONS ............................................... 17
Section 3.02.
Section 3.01. Delivery of Note Participations ........................................................ 17
Section 3.03.
ARTlCLE IV
Section 4.01.
ARTlCLE V
Section 5.01.
Section 5.02.
Section 5.03.
Section 5.04.
Section 5.05.
Section 5.06.
OHS West:26061146C>3
Establishment of Funds and Deposit of Proceeds of Note
Participations......... ........ ... ...... ........ ............ ... ....... .............. ... .... ... ...... 17
Use of Money in the Costs of1ssuance Fund and the Proceeds
Fund; Additional Deposits to Proceeds Fund .................................... 17
TRUSTEE'S DUT1ES REGARDING NOTES............................................. 19
Return of Paid Notes.......................................................................... 19
NOTE PAYMENTS .................................................................................. 20
Deposit of Notes ................................................................................ 20
Deposit of Money in the Note Participation Payment Fund .............21
Draws under or Payments Pursuant to Credit 1nstrument;
Payment of Principal and Interest...................................... ............... 21
Credit 1nstrument..
.............23
Investments ....
')"
.... _J
Provisions Relating to the Credit Provider ..................
..24
-1-
TABLE OF CONTENTS
(continued)
Page
ARTICLE VI
COVENANTS .. ............ ... ........ ..... ... ..... ... .... ...... ................ .... .... ...... ... ........... 26
Action on Default. .................. ....... ..... ...... ....... ..... .................. ..... ....... 29
Other Remedies of the Trustee .......................................................... 29
Non-Waiver.......... ......... .......... ..... ..... ......... ... ......... ...... ...... .... ........ ... 30
Application of Funds.. .. ........ ......... .................. .......... ..... ....... ............ 30
Remedies Not Exclusive; Credit Provider's Control of
Remedies............................................................................................ 31
Section 7.06. Exercise of Remedies; Relative Rights of Credit Provider and
Note Participation Owners.... ................... ... .... ..... ...... .......... ..... ......... 31
Section 7.07. Limited Liability of the Local Agencies............................................ 32
Section 7.08. No Liability by the Trustee to the Owners......................................... 32
Section 7.09. Limited Liability of the Authority..................................... ...............32
ARTICLE VIII THE TRUSTEE ..........................................................................................34
Section 6.01.
Section 6.02.
Section 6.03.
Section 6.04.
Section 6.05.
Section 6.06.
Section 6.07.
Section 6.08.
Section 6.09.
ARTICLE VII
Section 7.01.
Section 7.02.
Section 7.03.
Section 7.04.
Section 7.05.
Section 8.01.
Section 8.02.
Section 8.03.
Section 8.04.
Section 8.05.
Section 8.06.
Compliance with Trust Agreement ..................................................26
Amendment of Notes.. ........... ....... ........... ....... ..... ............. ..... ............ 26
Observance of Laws and Regulations ................................................26
Tax Covenants .................. ......... ........ ..... ........ .......... .... ................. .... 26
Liens............ ...... ... ........ ...... ..... ....... ... ... ... ... .... ..... ...... .... ...... ....... ........ 27
Accounting Records and Statements ................................................. 27
Recordation and Filing.......................................................................27
Further Assurances............. ........................... .......................27
Satisfaction of Pre default Obligations .......... ........................ 27
DEFAULT AND LIMIT A TIONS OF LIABILITy.................................... 29
Employment and Duties of the Trustee .............................................34
Removal and Resignation of the Trustee ................. .........................34
Compensation of the Trustee ..................................... .......................35
Protection of the Trustee ............... .................................................... 35
Notices to Rating Agencies............................................. .................. 37
Relation to Trustees of Other Series ............................ .....................37
ARTICLE IX AMENDMENT OR SUPPLEMENT OF TRUST AGREEMEi'\T.............. 38
Section 9.01. Amendment or Supplement of Trust Agreement.. .........................38
OHS \Ves\:260611..1.6(J.3
-11-
Section 9.02.
Section 9.03.
T ABLE OF CONTENTS
(continued)
Page
Disqualified Note Participations .... ............. ............ ..... ...... ................ 39
Procedure for Amendment with Written Consent of the Owners...... 39
Section 9.04. Endorsement or Replacement of Note Participations after
Amendment or Supplement ............................................................... 39
Section 9.05. Amendment or Supplement by Mutual Consent................................ 40
ARTICLE X DEFEASANCE............................................... .............................................. 41
Section 10.01. Discharge of Note Participations and Trust Agreement .................... 41
Section 10.02. Unclaimed Money..............................................................................42
ARTICLE XI CONTINUING DISCLOSURE AGREEMENT .......................................... 43
Section 11.01. Continuing Disclosure Agreement.................... ................................43
Section 11.02. Definitions......... ............ ......... .... .......................... ......... ....... .............. 43
Section 11.03.
Section 11.04.
Section 11.05.
Section 11.06.
Section 11.07.
Section] 1.08.
Section 11.09.
Section 11.10.
Reporting of Significant Events .............. ............ ....... ........ ..... ...........43
Termination of Reporting Obligation ................................................45
Dissemination Agent....... ... ...... .... .... ...... ......... ... ..... ......... ....... ...........45
Amendment; Waiver.............. ....... ............. ..... ..... ....... .... ..... ........ ...... 45
Additional Information. ................................ ...... ....... ....... .......... ....... 46
Default................................................................................................ 46
Duties, Immunities and Liabilities of Trustee and
Dissemination Agent......................... ................................................. 46
Beneficiaries........................................... ........................................... 46
MISCELLANEOUS ........ ...... ...... ..... ....... ................ .... ..... ....... ... ...................47
ARTICLE XII
Section 12.01.
Section 12.02.
Section \2.03.
Section 12.04.
Section 12.05.
Section \2.06.
Section 12.07.
Section 12.08.
Section 12.09.
OHS West:2t.Ubll.+fJO.]
Benefits of the Trust Agreement Limited to Specified Parties.......... 47
Successor Deemed Included in All References to Predecessor .........47
Execution of Documents by Owners .................................................47
Waiver of Personal Liability; No Liability of Authority
Members............................................................................................ 47
Content of Certificates; Post-Issuance Legal Opinions ..................... 48
Notice by Mail................................................................ ..................48
Funds.. ....... ....... ....................... .... ...... .... ...... ....... ..... ....... .... .... ..... ..... 49
Article and Section Headings, Gender and References .....................49
Partial Invalidity................................................................................. 49
-111-
TABLE OF CONTENTS
(continued)
Page
Section 12.10. California Law ...................................................................................49
Section 12.11. Notices ...............................................................................................49
Section 12.12. Effective Date .................................................................................... 50
Section 12.13. Execution in Counterparts..................................................................50
EXHIBIT A - FOR.J'vI OF NOTE PARTICIPATION............................................................ A-I
EXHIBIT B - FOR.J'vI OF REQUISITION FROM PROCEEDS SUBACCOUNT OF THE
ACQUISITION FUND ....... ........ ............ .... ....... ...... ........ ..... .......... ..... ...... B-1
EXHIBIT C - DEPOSIT NOTICE ............................................................................................ C-I
SCHEDULE 1 - PARTICIPATING LOCAL AGENCIES................................. ................. S-I-I
SCHEDULE II - INITIAL DEPOSIT TO PROCEEDS SUBACCOUNT
ATTRIBUTABLE TO EACH LOCAL AGENCY ..................................S-II-1
SCHEDULE III - TERMS RELATING TO CREDIT INSTRUMENT............................. S-I1I-l
OHS \\''-cst.2600 I l-lW 3
-IV-
TRUST AGREEMENT
This Trust Agreement (the "Trust Agreement"), dated as of July I, 2009, by and
between \VELLS FARGO BAN'K, NATIONAL ASSOCIATION, a national banking association
duly organized and existing under and by virtue of the laws of the United States of America (the
"Trustee"), the California Statewide Communities Development Authority (the "Authority") and
the Local Agencies named in Schedule I hereto (the "Local Agencies");
WIT N E SSE T H:
WHEREAS, the Local Agencies have determined to simultaneously issue their
Tax and Revenue Anticipation Notes, all having the same maturity date and in the respective
principal amounts set forth in Schedule I hereto (individually, a "Note" and collectively, the
"Notes") and to deposit the Notes with the Trustee and participate in the California Communities
Tax and Revenue Anticipation Note Program (the "Program") established by the Authority; and
WHEREAS, each Local Agency is a participant in the Program; and
WHEREAS, each Local Agency participating in the Program desires to have its
Note marketed together with the Notes issued by the other Local Agencies participating in the
Program in order to achieve a lower net interest cost and lower costs associated with issuing its
Note; and
WHEREAS, each Local Agency has designated the Trustee to act as its trustee
with respect to the funds received by the Local Agency from the sale of its Note and with respect
to the moneys paid by the Local Agency in satisfaction of its Note; and
WHEREAS, each Local Agency participating in the Program has executed a
pricing confirmation, confirming the sale to Barclays Capital Inc., on behalf of itself as senior
manager and the other co-managers (the "Purchaser") of its Note and the Note Participations
(described herein) which evidence and represent proportionate and undivided interests in its Note
and the Notes issued simultaneously by the other Local Agencies participating in the Program
and constituting part of the same Series of Note Participations; and
WHEREAS, each Local Agency participating in such Series has authorized and
directed the Trustee to execute and deliver the Note Participations on its behalf pursuant to the
terms of the Trust Agreement; and
WHEREAS, the Trustee, pursuant hereto, accepts the deposits of the Notes by
the Local Agencies; and
WHEREAS, in consideration of such deposits and the execution and entering
into of the Trust Agreement, the Trustee has agreed to execute and deliver note participations, as
more fully described herein (the "Note Participations") in an aggregate principal amount equal to
the aggregate principal amount of the Notes, each evidencing and representing a proportionate,
undivided interest in the Notes; and
UHS V'':CS!2()(Jh] 14f1l:1_'
\VHEREAS, the issuance of the ","otes and the approval of the execution and
delivery of the Trust Agreement and the Note Participations have been in all respects duly and
validly authorized by the governing boards of the Local Agencies pursuant to resolutions duly
adopted (collectively, the "Note Resolutions"); and
WHEREAS, the Note Participations and the form of assignment to be endorsed
thereon are to be substantially in the form set forth in Exhibit A, with necessary or appropriate
variations, omissions and insertions, as permitted or required hereby; and
WHEREAS, the Note Participations are secured, in part. by a Credit Instrument
which is a letter of credit issued by ; and
WHEREAS, the Trustee has accepted the trust created by this Trust Agreement
and in evidence thereof has joined in the execution hereof; and
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
entering into of the Trust Agreement. the Credit Instrument, if any, and delivery of the Note
Participations 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 the Trust Agreement;
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND OF
THE MUTUAL AGREEME~TS AND COVENANTS CONTAINED HEREIN ANTI FOR
OTHER VALUABLE CONSIDERA.TION, THE RECEIPT AND SUFFICIENCY OF WHICH
ARE HEREBY ACKNOWLEDGED, THE PARTIES HERETO DO HEREBY AGREE AS
FOLLOWS:
OHS Wc"t2h06114(J(I.3
2
ARTICLE I
DEFINITIONS; EQUAL SECURITY
Section 1.01. 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 the Note Participations and of any certificate, opinion, request 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 ternlS defined herein
(provided that the Credit Instruments, if any, shall be governed by the respective definitions set
forth therein):
"Authority" means the California Statewide Communities Development
Authority, a public entity of the State of California, created pursuant to the provisions relating to
the joint exercise of powers found in Chapler 5 of Division 7 of Title I (commencing with
Section 6500) of the Government Code of the State of California.
"Authorized Authoritv Representative" means any member of the Commission of
the Authority.
"Authorized Denomination" means S5,000 or any multiple thereof.
"Authorized Local Agencv Representative" means the person or persons
designated as such in the Local Agency Note Resolution or any other person at the time
designated to act on behalf of such Local Agency by written certificate furnished to the Trustee,
containing the specimen signature of such person and signed on behalf of such Local Agency by
an Authorized Local Agency Representative.
"Business Dav" means any day except Saturday, Sunday or any day on which
banks located in the city in which the designated corporate trust office of the Trustee and the
Principal Office of the Credit Provider are located, or in the City of Los Angeles, California are
required or authorized to remain closed.
"Certificate" or "Request" with respect to a Local Agency means an instrument in
writing signed on behalf of such Local Agency by an Authorized Local Agency Representative,
and with respect to the Authority means an instrument in writing signed on behalf of the
Authority by an Authorized Authority Representative or other person at the time designated to
act on behalf of the Authority by written certificate furnished to the Trustee.
"Code" means the Internal Revenue Code of .1986, as amended, and the
regulations issued or applicable thereunder.
"Costs of Issuance" means all items of expense directly or indirectly payable by
or reimbursable to a Local Agency or the Authority and related to the authorization, execution
and delivery of the Notes and the related sale of the Note Participations, including, but not
limited to. the Credit Provider's Credit Instrument fees or premium, as applicable. if any, costs of
preparation and reproduction and delivery of documents, fil1ng and recording fees, fees and
charges of the Trustee and its counsel, legal fees and charges. fees and disbursements of
(HI" \\6l.::'(,()(-Il1.+60,3
.'
consultants and professionals, fees ofrating agencies, fees and charges for preparation, execution
and safekeeping of the Note Participations and any other costs, charges or fees in connection
with the original execution and delivery of the Note Participations and the marketing, sale and
issuance of the Notes.
"Costs of Issuance Fund" means the fund by that name established pursuant to
Section 3.02.
"Credit Agreement" means the Credit Agreement, if any, identified in
Schedule III and dated the date indicated therein, as the same may be amended from time to
time. If there is more than one Credit Agreement, the term shall refer to each of them separately
and collectively.
"Credit Fund" means the fund of that name created by Section 3.02.
"Credit Instrument" means the instrument designated in Schedule III as the Letter
of Credit or Policy of Insurance dated the date of issuance of the Note Participations, issued by
the Credit Provider designated in Schedule III in favor of the Trustee, as the same may be
amended from time to time. If there is more than one Credit Instrument, the term shall refer to
each of them separately and collectively. Unless otherwise provided in the Credit Instrument,
the Credit Instrument shall be deemed to enhance the Notes.
"Credit Instrument Pavrnent Certificate" means the Credit Instrument Payment
Certificate. if any, relating to the procedures for submission of claims under the Credit
Instrument and for apportionment of the policy limit, to the extent required.
"Credit Provider" means the entity, if any, identified as the provider of the Credit
Instrument in Schedule III. If there is more than one Credit Provider. the term shall refer to each
of them separately and collectively.
"Defaulted Note" means a Note (i) the principal and interest on which has been
paid in whole or in part with the proceeds of a drawing or claim or payment under or from the
Credit Instrument which remains not fully reimbursed on the Maturity Date or (ii) any of the
principal of or interest on which is not paid when due.
"Default Rate" means the rate of interest per annum payable with respect to the
outstanding portion of each Defaulted Note which (i) if the Defaulted Note is unpaid and no
Credit Instrument is applicable thereto, shall equal the Note Rate, or (ii) if the Defaulted Note is
paid in whole or in part by an unreimbursed draw or claim or payment under or from a Credit
Instrument, is calculated in accordance with the applicable provisions of the Credit Instrument,
the Credit Agreement; provided, however. if the Credit Instrument or the Credit Agreement. if
any contains no such provision or provisions regarding the calculation of a default rate of
interest, "Default Rate" means the Note Rate.
"Interest Fund" means the fund by that name established in Section 3.02.
"Interest Pavment Date" means [the Maturity Date.]
(lHS v..:t:~: 26061\"';(103
4
["Investment Agreement" means
July 1, 2009, between the Trustee and
investment of certain funds held hereunder.]
that certain investment agreement dated as of
providing for the
"Local Agencv" or "Local Agencies" means the Local Agencies listed m
Schedule I hereto and in each case their successors and assigns.
"Maturity Date" means [June 30], 2010.
"Moody's" means Moody's Investors Service, Inc., a corporation duly organized
and existing under any by virtue of the laws of the State of Delaware, and its successors and
assIgns.
"Note Participation PaYment Fund" means the fund by that name established in
Section 3.02.
"Note Participations" means the $[A-I PAR AMOUNT] California Communities
Tax and Revenue Anticipation Note Program, Note Participations, Series 2009A-I authorized
hereby and at any time Outstanding hereunder that are executed and delivered by the Trustee
under and pursuant to Article II.
"Note PaYment Deposit Date" means June ,2010.
"Note Rate" means the stated rate of interest payable on the Notes.
"Note Resolutions" means the respective resolutions adopted by the legislative
bodies of the Local Agencies authorizing the issuance of the Notes and approving the execution
and delivery of this Trust Agreement, the Credit Agreement, if any, and the Note Participations.
"Notes" means the tax and revenue anticipation promissory notes issued by the
Local Agencies in the respective aggregate principal amounts described in Schedule I hereto.
"Opinion of Counsel" means a written opinion of counsel of recognized national
slanding m the field of law relating to municipal bonds, appointed by the Authority and
satisfactory to and approved by the Trustee (which shall be under no liability by reason of such
approval).
"Outstanding," when used as of any particular time with reference to Note
Participations, means (subject to the provisions of Section 9.02) all Note Participations except ~
(I) Note Participations cancelled by the Trustee or surrendered to the
Trustee for cancellation;
(2) Note Participations paid or deemed to have been paid within the
meaning of Section 10.01; and
:;:is W<.:sL1W61 ]"+60_3
5
(3) Note Participations in lieu of or in exchange or substitution for
which other Note Participations shall have been executed and delivered by the
Trustee hereunder.
"Owner" means the registered owner of any Outstanding Note Participation.
"Payment Accounts" means the subaccounts created in the Note Participation
Payment Fund pursuant to Section 3.02.
"Pern1itted Investments" means any of the following to the extent then permitted
bylaw:
1. (a) Direct obligations (other than an obligation subject to variation III
principal repayment) of the United States of America ("United States Treasury
Obligations"), (b) obligations fully and unconditionally guaranteed as to timely payment
of principal and interest by the United States of America, (c) obligations fully and
unconditionally guaranteed as to timely payment of principal and interest by any agency
or instrumentality of the United States of America when such obligations are backed by
the full faith and credit of the United States of America, or (d) evidences of ownership of
proportionate interests in future interest and principal payments on obligations described
above held by a bank or trust company as custodian, under which the owner of the
investment is the real party in interest and has the right to proceed directly and
individually against the obligor and the underlying government obligations are not
available to any person claiming through the custodian or to whom the custodian may be
obligated.
2.
America.
Obligations of instrumentalities
These are specifically limited to:
or agencles of the United States of
-- Federal Home Loan Mortgage Corporation (FHLMC)
Participation certificates (excluded are stripped mortgage securities
which are purchased at prices exceeding their principal amounts)
Debt Obligations
-- Federal Home Loan Banks (FHL Banks)
Consolidated debt obligation
-- Federal National Mortgage Association (FNMA)
Debt obligations
Mortgage backed securities (Excluded are stripped mortgage
securities-which are purchased at prices exceeding their principal
amounts).
Book entry securities listed in I and 2 above must be held in a trust account with
the Federal Reserve Bank or with a clearing corporation or chain of clearing
corporations which has an account with the Federal Reserve Bank.
3.
Federal Housing Administration debentures.
OHS West:260611~6(j:;
6
4. Commercial paper, payable in the United States of America, having
original maturities of not more than 92 days and which are rated A+ by S&P and Prime-I
by Moody's.
5. Interest bearing demand or time deposits issued by state banks or trust
companies, savings and loan associations, federal savings banks or any national banking
associations, the deposits of which are insured by the Bank Insurance Fund (BIT) or the
Savings Association Insurance Fund of the Federal Deposit Insurance Corporation
(SAIF) or any successors thereto. These deposits: (a) must be continuously and fully
insured by BIF or SAIF, or (b) must have maturities of less than 366 days and be
deposited with banks the short term obligations of which are rated A+ by S&P and P-I by
Moody's.
6. Money market mutual funds or portfolios investing in short-term US
Treasury securities rated AAAm or AAAm-G by S&P and Aaa by Moody's, including
those which the Trustee and its affiliates or subsidiaries provide advisory or management
serVlces.
7. Investment agreements approved by the Credit Provider which are with
investment institutions, or with a financial entity whose obligations are guaranteed or
insured by a financial entity, having long-term obligations which are rated "AA" or
higher by S&P and "Aa" or higher by Moody's as to long term instruments and which are
approved by S&P and Moody's; provided that if such rating falls below AA.- or Aa3, by
S&P or Moody's, respectively, the investment agreement shall require the Trustee to
replace such financial institution or shall provide for the investment agreement to be
collateralized at levels and under such conditions as would be acceptable to S&P and
Moody's to maintain an "A" rating in an "A" rated structured financing (with a market
value approach).
8.
California.
The Local Agency Investment Fund administered by the State of
9.
Investment Trust of California, doing business as CaITRUST.
10.
Such other investments as are approved in writing by the Credit Provider.
"Predefault Obligations" means (i) the respective obligations of the respective
Local Agencies to the Credit Provider under the Credit Instrument and/or the Credit Agreement,
if any, (ii) all indemnification to the Credit Provider by the respective Local Agencies, and
(iii) all other amounts due to the Credit Provider by the respective Local Agencies under the
Credit Instrument and the Credit Agreement (including interest on overdue Predefault
Obligations to the extent permitted by law), in each case becoming due prior to an Event of
Default under the respective Note Resolutions.
"Pricing Confirmation Supplement" means that certain Pricing Confirmation
Supplement attached to each Purchase Agreement as agreed and accepted by each of the
respective Local Agencies.
OHS West:!6(}(1 1] -1.00.'
7
"Principal Fund" means the fund by that name established in Section 3.02.
"Principal Office of the Credit Provider" means a United States of America office
of the Credit Provider to or from which draws under, or claims or payments pursuant to or from,
the Credit Instrument are to be made.
"Principal Office of the Trustee" means the corporate trust office of the Trustee,
which, for the Trustee initially appointed hereunder, is located in Los Angeles, California,
provided that a different office may be designated by the Trustee in writing to the Authority.
"Principal Payment Date" means the date on which principal evidenced and
represented by the Note Participations becomes due and payable, being the Maturity Date.
"Proceeds Fund" means the fund by that name established in Section 3.02.
"Program" means the California Communities Tax and Revenue Anticipation
Note Program pursuant to which the Note Participations are executed and delivered to assist
Local Agencies in financing cash flow deficits.
"Purchase Agreement" means that certain Purchase Agreement by and between
each of the respective Local Agencies and the Purchaser relating to the Notes and the Note
Participations.
"Purchaser" means Barclays Capital Inc., on behalf of itself as senior manager
and the other co-managers, as Purchaser of the Note Participations evidencing and representing
interests in the Notes.
"Rating Agencv" means each national rating agency then maintaining a rating on
the Note Participations.
"Reimbursement Obligations" means (i) the respective obligations of the
respective Local Agencies under the Credit Instrument and/or the Credit Agreement, including,
without limitation, obligations evidenced by Defaulted Notes, (ii) all indemnification to the
Credit Provider by the respective Local Agencies, and (iii) all other amounts at any time due to
the Credit Provider by the respective Local Agencies under the Credit Instrument and/or the
Credit Agreement (including any Predefault Obligations and interest on any overdue
Reimbursement Obligations to the extent permitted by law), in each case becoming due as a
result of or after an Event of Default under the respective Note Resolutions.
"Repavment Fiscal Year" means each Local Agency's fiscal year ending June 30,
2010.
"Repavment Month" has the respective meaning set forth in each Local Agency's
Note Resolution.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw-Hill, Inc.
OHS \\'es!:2b()611..H,(lJ
8
"Secured Percentage" means, with respect to any Credit Instrument and the Notes
to which it applies, an amount (i) equal to 100%, if the available amount of the Credit Instrument
is greater than or equal to the aggregate amount of principal of and interest on unpaid Notes (or
unpaid portions thereof) or (ii) equal to the available amount of the Credit Instrument divided by
the aggregate amount of unpaid principal of and interest on Notes (or unpaid portions thereof),
expressed as a percentage, if the available amount of the Credit Instrument is less than the
aggregate amount of unpaid principal of and interest on Notes (or unpaid portions thereof) as of
the Maturity Date.
["Series 2009A-2 Note Participations" means the California Communities Tax
and Revenue iillticipation Note Program, ]\;ote Participations. Series 2009A-2. authorized and at
any time Outstanding under the Series 2009A-2 Trust Agreement.]
["Series 2009A-2 Trust Agreement" means the Series 2009A-2 Trust Agreement,
dated as of July 1, 2009, by and between the Series 2009A-2 Trustee, the Authority and certain
local agencies named therein. as originally executed and entered into and as it may from time to
time be amended or supplemented in accordance therewith, relating to the Series 2009A-2 Note
Participations. ]
["Series 2009A-2 Trustee" means Wells Fargo Bank, National Association, a
national banking association duly organized and existing under and by virtue of the laws of the
United States of America, or any other bank or trust company at its principal corporate trust
office which may at any time be substituted in its place, as trustee under the Series 2009A-2
Trust Agreement.]
["Series 2009A-2 Owner" means the registered owner of any outstanding Series
2009A-2 Note Participation.]
["Series 2009A-3 Note Participations" means the California Communities Tax
and Revenue Anticipation Note Program, Note Participations, Series 2009A-3, authorized and at
any time Outstanding under the Series 2009A-3 Trust Agreement.]
["Series 2009A-3 Trust Agreement" means the Series 2009A-3 Trust Agreement,
dated as of July 1, 2009, by and between the Series 2009A-3 Trustee, the Authority and certain
local agencies named therein, as originally executed and entered into and as it may from time to
time be amended or supplemented in accordance therewith, relating to the Series 2009A-3 Note
Participations. ]
["Series 2009A-3 Trustee" means Wells Fargo Bank, National Association, a
national banking association duly organized and existing under and by virtue of the laws of the
United States of America, or any other bank or trust company at its principal corporate trust
office which may at any time be substituted in its place, as trustee under the Series 2009A-3
Trust Agreement.]
["Series 2009A-3 Owner" means the registered owner of any outstanding Series
2009A-3 Note Participation.]
OHS vVest:2bOnll.W) 3 9
["Series 2009A-4 Note Participations" means the California Communities Tax
and Revenue Anticipation Note Program, Note Participations, Series 2009A-4, authorized and at
any time Outstanding under the Series 2009A-4 Trust Agreement]
["Series 2009A-4 Trust Agreement" means the Series 2009A-4 Trust Agreement,
dated as of July 1, 2009, by and between the Series 2009A-4 Trustee, the Authority and certain
local agencies named therein, as originally executed and entered into and as it may from time to
time be amended or supplemented in accordance therewith, relating to the Series 2009A-4 Note
Participations. )
["Series 2009A-4 Trustee" means Wells Fargo Bank, National Association, a
national banking association duly organized and existing under and by virtue of the laws of the
United States of America, or any other bank or trust company at its principal corporate trust
office which may at any time be substituted in its place, as trustee under the Series 2009A-4
Trust Agreement.]
["Series 2009A-4 Owner" means the registered owner of any outstanding Series
2009A-4 Note Participation.)
["Series 2009B Note Participations" means the California Communities Tax and
Revenue Anticipation Note Program, Note Participations, Series 2009B authorized and at any
time Outstanding under the Series 2009B Trust Agreement.)
["Series 2009B Trust Agreement" means the Series 2009B Trust Agreement,
dated as of July 1, 2009, by and between the Series 2009B Trustee, the Authority and certain
local agencies named therein, as originally executed and entered into and as it may from time to
time be amended or supplemented in accordance therewith, relating to the Series 2009B Note
Participations. ]
["Series 2009B Trustee" means Wells Fargo Bank, National Association, a
national banking association duly organized and existing under and by virtue of the laws of the
United States of America, or any other bank or trust company at its principal corporate trust
office which may at any time be substituted in its place, as trustee under the Series 2009B Trust
Agreement. )
["Series 2009B Owner" means the registered owner of any outstanding Series
2009B Note Participation.)
"Trust Agreement" means this Trust Agreement executed and entered into as of
July 1,2009, by and between the Trustee and the Local Agencies, as originally executed and
entered into and as it may from time to time be amended or supplemented in accordance
herewith.
'Trustee" means Wells Fargo Bank, National Association, a national banking
association duly organized and existing under and by virtue of the laws of the United States of
America, at its principal corporate trust office in Los Angeles, Califomia, or any other bank or
trust company at its principal corporate trust office which may at any time be substituted in its
place, as Trustee as provided in Section 8.02.
OHS West:'::606114603
10
Section 1.02. Equal Security. In consideration of the acceptance of the Note
Participations by the Owners and, if there is a Credit Instrument, the issuance of the Credit
Instrument by the Credit Provider as indicated on Schedule III, the Trust Agreement shall be
deemed to be and shall constitute a contract among the Trustee, the Local Agencies, the Credit
Provider. if any. and the Owners to secure the full and final payment of the interest and principal
evidenced and represented by the Note Participations, all Predefault Obligations and all
Reimbursement Obligations, subject to the agreements, conditions, covenants and terms
contained herein; and all agreements, conditions, covenants and terms contained herein required
to be observed or performed by or on behalf of the Trustee shall be for the equal and
proportionate benefit. protection and security of all Owners without distinction, preference or
priority as to benefit, protection or security of any Note Participations over any other Note
Participations by reason of the number or date thereof or the time of execution or delivery
thereof or otherwise for any cause whatsoever, and for the benefit of the Credit Provider, if any,
except as expressly provided herein or therein. The Credit Provider shall be deemed a third party
beneficiary of all covenants and conditions contained in this Trust Agreement.
()HS \Vt"st260(, 11":(,(1 _~
11
ARTICLE II
CONDITIONS AND TERMS OF NOTE PARTICIPATIONS
Section 2.01. Preparation of Note Participations. The Trustee is hereby
authorized and directed to prepare the Note Participations in the aggregate principal amount of
$[A-l PAR AMOUNT], evidencing and representing the aggregate principal amount of the
Notes and each evidencing and representing a proportionate, undivided interest in the Notes.
The Note Participations shall be initially delivered in the form of one Note Participation and
shall be registered in the name of "Cede & Co.," as nominee of The Depository Trust Company,
New Y ark, New York ("DTC"), or such other nominee may request. The Local Agencies hereby
authorize the Trustee to execute a letter of representations to be delivered to DTC in connection
with the delivery of the Note Participations (the "Representation Letter").
Each Local Agency participating in the Program is the Local Agency of its Note
which, when combined with the Notes of other Local Agencies participating in the Program and
the same Series, shall be evidenced by the Note Participations which evidence and represent a
proportionate and undivided interest in the Note of each Local Agency, such that each Local
Agency participating in the Program is severally, and not jointly, liable on each such Note
Participation in the proportion that the face amount of such Local Agency's Note bears to the
total aggregate face amount of the Notes issued by all Local Agencies participating in the
Program and the same Series. Each Local Agency participating in the Program has, pursuant to
its Note Resolution, authorized and directed the Trustee on behalf of that Local Agency to
prepare and execute the Note Participations and to deliver the Note Participations to the
Purchaser upon payment of the purchase price thereof, pursuant to the terms of the Trust
Agreement.
Section 2.02. Denominations, Medinm, Method and Place of Pavment and
Dating of Note Participations. The Note Participations shall be prepared in the form of fully
registered Note Participations in denominations of Authorized Denominations. The interest and
principal evidenced and represented by the Note Participations shall be payable in lawful money
of the United States of America. The interest evidenced and represented by the Note
Participations shall be payable on each Interest Payment Date, and the principal evidenced and
represented by the Note Participations shall be payable on the Principal Payment Date upon
surrender thereof by the respective Owners thereof at the Principal Office of the Trustee. The
Trustee may treat the Owner of any Note Participation as the absolute owner of such Note
Participation for all purposes, whether or not such Note Participation shall be overdue, and the
Trustee shall not be affected by any knowledge or notice to the contrary; and payment of the
interest and principal evidenced and represented by such Note Participation shall be made only to
such Owner as above provided, which payments shall be valid and effectual to satisfy and
discharge the liability evidenced and represented by such Note Participation to the extent of the
sum or sums so paid. All Note Participations paid pursuant to the provisions of this section shall
be cancelled and destroyed by the Trustee and shall not be redelivered and a certificate of
destruction shall be delivered to the Purchaser and Credit Provider.
The Note Participations shall be dated the date of initial execution and delivery
thereof and shall evidence and represent principal of the Notes and interest accrued thereon from
OHS West:26061146().3
12
the date of initial issuance of the Notes and execution and delivery of the Note Participations
hereunder.
The "Record Date" for purposes of determining ownership of Note Participations
on the Registration Books maintained by the Trustee shall be the Business Day immediately
preceding each Interest Payment Date on the Note Participations.
Section 2.03. Terms of the Note Participations. The Note Participations shall
have the Principal Payment Date of [June 30], 2010 and shall evidence and represent
proportionate, undivided interests in the aggregate principal of the Notes in the amount of $[A-I
PAR AMOUNT] with interest thereon at the rate of ~% per annum.
The interest evidenced and represented by the Note Participations shall become
due and payable on each Interest Payment Date, and shall be in sum the interest payments
becoming due and payable on the Notes on each such Interest Payment Date. The interest
payable on the Notes and evidenced and represented by the Note Participations shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
The principal evidenced and represented by the Note Participations shall become
due and payable on the Principal Payment Date, without option of prepayment, and shall be in
sum the principal becoming due and payable on the Notes on the Principal Payment Date.
Section 2.04. Form of Note Participations. The Note Participations and the
form of assignment to appear thereon shall be in substantially the forms in Exhibit A hereto,
respectively, with appropriate or necessary insertions, omissions and variations as permitted or
required thereby or hereby. The Note Participations may be prepared in typewritten,
lithographed or printed form.
Section 2.05. Execution of Note Participations. The Note Participations shall
be executed by the manual signature of an authorized officer of the Trustee.
Section 2.06. Transfer and Exchanl!e of Note Participations. All Note
Participations are transferable or exchangeable by the Owner thereof, in person or by his attorney
duly authorized in writing, at the Principal Office of the Trustee in the books required to be kept
by the Trustee pursuant to the provisions of Section 2.07, upon surrender of such Note
Participations accompanied by delivery of a duly executed written instrument of transfer or
exchange in a form acceptable to the Trustee. Whenever any Note Participation or Note
Participations shall be surrendered for transfer or exchange, the Trustee shall execute and deliver
a new Note Participation or Note Participations of Authorized Denominations representing the
same aggregate principal amount, except that the Trustee shall require the payment by any
Owner requesting such transfer or exchange of any tax or other governmental charge required to
be paid with respect to such transfer or exchange. All Note Participations surrendered pursuant
to the provisions of this section shall be cancelled by the Trustee and shall not be redelivered.
Section 2.07. Note Participation Rel!istration Books. The Trustee will keep at
its Principal Office sufficient books for the registration of the ownership, transfer or exchange of
the Note Participations, which books shall be available for inspection by the Credit Provider, the
Local Agencies or any Owner or his agent duly authorized in writing at reasonable hours and
OHS West:26U6] l..+()(U
13
under reasonable conditions during regular business hours; and upon presentation for such
purpose the Trustee shall, under such reasonable regulations as it may prescribe, register the
ownership, transfer or exchange of the Note Participations in such books as hereinabove
provided. The ownership of any Note Participations may be proved by the books required to be
kept by the Trustee pursuant to the provisions of this section.
Section 2.08. Temporarv Note Participations. The Note Participations may be
initially delivered in temporary form exchangeable for definitive Note Participations when ready
for delivery, which temporary Note Participations shall be printed. lithographed or typewritten,
shall be of such denominations as may be determined by the Trustee, shall be in fully registered
form and shall contain such reference to any of the provisions hereof as may be appropriate.
Every temporary Note Participation shall be executed and delivered by the Trustee upon the
same conditions and terms and in substantially the same manner as definitive Note
Participations. Ifthe Trustee executes and delivers temporary Note Participations, it will prepare
and execute definitive Note Participations without delay, and in that case, upon demand of the
Owner of any temporary Note Participations, such definitive Note Participations shall be
exchanged without cost to such Owner for temporary Note Participations at the Principal Office
of the Trustee upon surrender of such temporary Note Participations, and until so exchanged
such temporary Note Participations shall be entitled to the same benefit, protection and security
hereunder as the definitive Note Participations executed and delivered hereunder. All temporary
Note Participations surrendered pursuant to the provisions of this section shall be cancelled by
the Trustee and shall not be redelivered.
Section 2.09. Note Participations Mutilated, Destroved, Lost or Stolen. If
any Note Participation shall become mutilated, the Trustee shall execute and deliver a new Note
Participation of like tenor in exchange and substitution for the Note Participation so mutilated,
but only upon surrender to the Trustee of the Note Participation so mutilated, and every
mutilated Note Participation so surrendered to the Trustee shall be cancelled by it. If any Note
Participation 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, the Trustee shall execute and deliver a new Note
Participation of like tenor and Principal Payment Date in lieu of and in substitution for the
destroyed, lost or stolen Note Participation. The Trustee may require payment of a sum not
exceeding the actual cost of preparing each new Note Participation executed and delivered by it
under this section and of the expenses which may be incurred by it under this section. Any
replacement Note Participation executed and delivered under the provisions of this section in lieu
of and in substitution for any mutilated, destroyed, lost or stolen Note Participation shall be
equally and proportionately entitled to the benefit, protection and security hereof with all other
Note Participations executed and delivered hereunder; and the Trustee shall not be required to
treat both the original Note Participation and any replacement Note Participation as being
Outstanding for the purpose of determining the principal amount of Note Participations which
may be executed and delivered hereunder or for the purpose of determining any percentage of
Note Participations Outstanding hereunder, but both the original and the replacement Note
Participation shall be treated as one and the same. Notwithstanding any other provisions of this
section, rather than executing and delivering a new Note Participation for a mutilated, destroyed,
lost or stolen Note Participation the Principal Payment Date of which has occurred or is about to
occur, the Trustee may make payment of the principal evidenced and represented by such
OHS \Vest:26061 1"+00 3
14
mutilated, destroyed, lost or stolen Note Participation directly to the Owner thereof under such
regulations as the Trustee may prescribe.
Section 2.10. Special Covenants as to Book-Entry-Only SYstem.
(a) Except as otherwise provided in subsections (b) and (c) of this Section
2. I 0, the Note Participations initially executed and delivered hereunder shall be registered in the
name of Cede & Co., as nominee ofDTC, or such other nominee as DTC may request. Payment
of the principal and interest represented by each Note Participation registered in the name of
Cede & Co. shall be made to the account, in the manner and at the address indicated in or
pursuant to the Representation Letter delivered to DTC by the Trustee.
(b) The Note Participations executed and delivered hereunder shall be in the
form of a single fully registered certificate for each maturity. Upon initial execution of the Note
Participations, the ownership of all such Note Participations shall be registered in the registration
books maintained by the Trustee pursuant to Section 2.07 in the name of Cede & Co., as
nominee of DTC, or such other nominee as DTC may request. The Trustee, the Local Agencies
and any paying agent may treat DTC (or its nominee) as the sole and exclusive owner of the
Note Participations registered in its name for the purposes of payment of the principal and
interest represented by such Note Participations, selecting the Note Participations or portions
thereof to be prepaid, giving any notice permitted or required to be given to an Owner under the
Trust Agreement, registering the transfer of Note Participations, obtaining any consent or other
action to be taken by the Owners and for all other purposes whatsoever; and neither the Trustee
nor the Local Agencies shall be affected by any notice to the contrary. Neither the Trustee nor
the Local Agencies shall have any responsibility or obligation to any Participant (which shall
mean, for purposes of this Section 2.10, securities brokers and dealers, banks, trust companies,
clearing corporations and other entities, some of whom directly or indirectly own DTe), any
person claiming a beneficial ownership interest in the l'iote Participations under or through DTC
or any Participant, or any other person which is not shown on the registration records as being an
Owner, with respect to (i) the accuracy of any records maintained by DTC or any Participant, (ii)
the payment by DTC or any Participant of any amount in respect of the principal or interest
represented by such Note Participations, (iii) any notice which is permitted or required to be
given to the Owners under the Trust Agreement, (iv) the selection by DTC or any Participant of
any person to receive payment in the event, if any, of a partial prepayment of the Note
Participations, or (v) any consent given or other action taken by DTC as Owner. The Trustee
shall pay all principal and interest represented by the Note Participations only at the times, to the
accounts, at the addresses and otherwise in accordance with the Representation Letter. Upon
delivery by DTC to the Trustee of written notice to the effect that DTC has determined to
substitute a new nominee in place of its then existing nominee. the Note Participations will be
transferable to such new nominee in accordance with subsection (f) of this Section 2.10.
(c) In the event that 20% of the Local Agencies determine that it is in the best
interests of the Local Agencies or the beneficial owners of the Note Participations that they be
able to obtain certificates, the Trustee shall, upon the written instruction of 20% of the Local
Agencies, so notify DTC, whereupon DTC shall notify the Participants of the availability
through DTC of certificates. In such event. the Note Participations will be transferable in
accordance with subsection (f) of this Section 2. I o. DTC may determine to discontinue
OHS \Vesl:260(111--111{).3
15
providing its services with respect to the Note Participations at any time by giving written notice
of such discontinuance to the Local Agencies and the Trustee and discharging its responsibilities
with respect thereto under applicable law. In such event, the Note Participations will be
transferable in accordance with subsection (f) of this Section 2.10. Whenever DTC requests the
Local Agencies or the Trustee to do so, the Trustee and the Local Agencies will cooperate with
DTC in taking appropriate action after reasonable notice to arrange for another securities
depository to maintain custody of all certificates evidencing the Note Participations then
Outstanding. In such event. the Note Participations will be transferable to such securities
depository in accordance with subsection (f) of this Section 2.10, and thereafter, all reference in
this Trust Agreement to DTC or its nominee shall be deemed to refer to such successor securities
depository and its nominee, as appropriate.
(d) Notwithstanding any other provIsion of this Trust Agreement to the
contrary, so long as all Note Participations Outstanding are registered in the name of any
nominee of DTC, all payments with respect to the principal and interest represented by each such
Note Participation and all notices with respect to each such Note Participation shall be made and
gi ven to DTC as provided in the Representation Letter.
(e) The Trustee is hereby authorized and requested to execute and deliver the
Representation Letter and, in connection with any successor nominee for DTC and any successor
depository, enter into comparable arrangements, and shall have the same rights with respect to its
actions thereunder as it has with respect to its actions under this Trust Agreement.
(f) In the event of any transfer or exchange of Note Participations under
subsection (b) or (c) of this Section 2.10, such transfer or exchange shall be accomplished upon
receipt by the Trustee from the Owner thereof of the Note Participations to be transferred or
exchanged and appropriate instruments of transfer to the permitted transferee, all in accordance
with the applicable provisions of Section 2.06. In the event Note Participations are executed and
delivered to Owners other than Cede & Co., its successor as nominee for DTC as holder of all
the Note Participations, another securities depository as Owners of all the Note Participations, or
the nominee of such successor securities depository, the provisions of Sections 2.02, 2.03 and
2.06 shall also apply to, among other things, the registration, exchange and transfer of the Note
Participations and the method of payment of principal, premium, if any, and interest represented
by the Note Participations.
OHS We~L::'h()(, i 14(1u3
16
ARTICLE III
PROCEEDS OF NOTE PARTICIPATIONS
Section 3.01. Deliverv of Note Participations. The Trustee is hereby authorized
to execute and deliver the Note Participations to the Purchaser upon receipt of (i) written
requests of the Local Agencies participating in the related Series of Note Participations, (ii) the
Notes. (iii) the proceeds of sale of the Note Participations and (iv) the Credit Instrument, if any.
Section 3.02. Establishment of Funds and Deposit of Proceeds of Note
Participations. The Trustee hereby agrees to establish and maintain hereunder, in trust, the
Costs of Issuance Fund, the Proceeds Fund, the Note Participation Payment Fund and the
Payment Accounts therein. the Interest Fund, the Principal Fund and the Credit Fund, if
applicable. The proceeds received from the sale of the Note Participations are to be deposited in
the following funds in the following amounts:
Proceeds Fund
$[COI FUND]
$[PROCEEDS FUND]
Costs of]ssuance Fund
Section 3.03. Use of Monev in the Costs of Issuance Fund and the Proceeds
Fund; Additional Deposits to Proceeds Fund.
(a) The moneys in the Costs of Issuance Fund shall be used and withdrawn by
the Trustee to pay the Costs of]ssuance upon receipt of (i) a Request of an Authorized Authority
Representative, which Request shall be sequentially numbered, stating the person to whom
payment is to be made, the amount to be paid, the purpose for which the obligation was incurred
and that such payment is a proper charge against said fund and (ii) an original invoice or invoices
or evidence of payment of an invoice when such requisition is in reimbursement thereof. On
February I, 2010, or on such earlier date upon Request of an Authorized Authority
Representative, amounts, if any, remaining in the Costs of Issuance Fund (and not required to
pay identified Costs of]ssuance, including any additional fees or expenses of the Credit Provider
or the Trustee, or any identified Predefault Obligations and Reimbursement Obligations) shall be
transferred to the Proceeds Fund and credited to and returned by the Trustee by check to each
Local Agency in proportion to the amounts initially deposited in the Costs of Issuance Fund
attributable to each such Local Agency.
(b) All money in the Proceeds Fund shall be held by the Trustee in trust and
applied as provided herein and, pending such application, are hereby pledged to the payment of
the Note Participations and shall be subject to a lien and charge in favor of the Owners and for
the further security of the Owners. Funds in the Proceeds Fund shall be credited to each of the
Local Agencies initially in amounts set forth in Schedule II, which is attached hereto and made a
part hereof. Moneys in the Proceeds Fund shall be disbursed to each Local Agency in the
amounts set forth in Schedule II relating to such Local Agency, as soon as practicaL pursuant to
a Request of an Authorized Authority Representative and a written requisition of the Local
Agency in substantially the form set forth in Exhibit B attached hereto. submitted in advance of
the requested payment date (by facsimile, hand delivery or mail). and once disbursed, shall be
OilS \VcsI2(1{)(1! 1.+6U:;
17
held and invested by the Local Agency as permitted by law and used and expended for any
purpose for which the Local Agency is authorized to use and expend moneys.
(c) The Trustee shall not create subaccounts within the Proceeds Fund, but
shall keep records to account separately for funds in the Proceeds Fund attributable to each Local
Agency. Said record of separate accounting by the Trustee for each Local Agency shall be
deemed a "Proceeds Subaccount" for the purposes of each Local Agency's Note Resolution. To
the extent that the Trustee so holds moneys and/or securities in the Proceeds Fund on behalf of a
Local Agency on the first day of any Repayment Month, such moneys and securities (up to the
amount required to be set aside by the Local Agency in its Payment Account in such Repayment
Month) shall no longer be subject to disbursement and shall be transferred by the Trustee to the
Local Agency's Payment Account in the Note Participation Payment Fund. In the event that a
Local Agency has invested funds in the Investment Agreement and amounts held by the Trustee
in the Local Agency's Payment Account on the first day of any Repayment Month are less than
the amount required to be in the Payment Account for such Repayment Month, the Trustee shall
immediately notify the Local Agency of such deficiency.
(d) [For purposes of payments from the Costs of Issuance Fund, the Trustee
may consolidate the Costs of Issuance Fund with the costs of issuance funds under the Series
2009A-2 Trust Agreement. Series 2009A-3 Trust Agreement, Series 2009A-4 Trust Agreement
and the Series 2009B Trust Agreement, and the Trustee may pay any invoices submitted under
either this Trust Agreement, or such other Series Trust Agreements from such consolidated
fund.]
OHS v.-est ~b()611.i00_3
18
ARTICLE IV
TRUSTEE'S DUTIES REGARDING NOTES
Section 4.01. Return of Paid Notes. Each Note, when paid in full (including by
reimbursement to the Credit Provider as provided in Section 5.03), shall be cancelled by the
Trustee and returned to the Local Agency that issued such Note.
OHS \\ est260611-l.603
19
ARTICLE V
NOTE PAYMENTS
Section 5.01. Deposit of Notes. The Notes, as evidenced and represented by the
Note Participations, are hereby irrevocably deposited with and pledged and transferred to the
Trustee, which is the registered owner of each Note for the benefit of the Owners of the Note
Participations and the Credit Provider, if any, and the payments on the Notes shall be used for
the punctual payment of the interest and principal evidenced and represented by the Note
Participations or the reimbursement of drawings under or payments made pursuant to the Credit
Instrument. and the Notes shall not be used for any other purpose while any of the Note
Participations remain Outstanding. This deposit, transfer and pledge shall constitute a first and
exclusive lien on the principal and interest payments of the Notes for the foregoing purpose in
accordance with the terms hereof Each Local Agency approves, and the Trustee hereby accepts,
the deposit of the Notes.
All principal and interest payments on the Notes shall be paid directly by each
Local Agency to the Trustee. All principal and interest payments on the Notes received by the
Trustee shall be held in trust by the Trustee under the terms hereof and shall be deposited by it,
as and when received, in the appropriate Payment Account within the Note Participation
Payment Fund, which fund the Trustee hereby agrees to maintain so long as any Note
Participations are Outstanding, and all money in such fund shall be held in trust by the Trustee
for the benefit of the Local Agency submitting such money until deposited in the funds specified
in Section 5.02, whereupon such money shall be held in trust in such funds by the Trustee for the
benefit and security of the Owners and the Credit Provider to the extent provided herein.
Pursuant to each Local Agency's Note Resolution, each Local Agency is required to deposit with
the Trustee the first amounts received in the Repayment Months (and any amounts received
thereafter attributable to Repayment Fiscal Year) until the amount on deposit in such Local
Agency's Payment Account, is equal in the respective Repayment Month to the percentage of the
principal and interest due on the Note specified in the Pricing Confirmation Supplement. Any
such deposit may take into consideration anticipated investment earnings on amounts deposited
in an Investment Agreement through the Maturity Date. If any Local Agency fails to make the
required deposits, the Trustee shall as soon as practical (but in any event within three Business
Days) notify such Local Agency, the Credit Provider, if any, and each Rating Agency of such
failure. If the Trustee receives Note repayments from a Local Agency which, together with other
amounts on deposit in the Note Participation Payment Fund allocable to such Local Agency, are
in excess of the amounts required to pay the principal of and interest due on such Local
Agency's Note, such excess amounts shall remain in the Note Participation Payment Fund and,
subject to any rebate requirement, shall be transferred to such Local Agency following payment
of the amount of Note Participations evidencing and representing such Local Agency's Note and
reimbursement of the Credit Provider for drawings, if any, under or payments pursuant to or
from the Credit Instrument and payment to such Credit Provider of any Reimbursement
Obligations and Predefault Obligations applicable to such Local Agency.
Moneys received by the Trustee attributable to a Local Agency shall not be used
in any manner (directly or indirectly) to make up any deficiency in any other Local Agency's
Note repayments.
()HS West:26061 1460.3e
20
Attached as Exhibit C hereto is a form of Deposit Notice to be used by a Local
Agency to transfer payments of principal and interest on its Note to the Trustee.
Section 5.02. Deposit of Money in the 1'1' ote Participation Payment Fund. The
Trustee shall deposit the money contained in the Note Participation Payment Fund at the
following respective times in the following respective funds in the manner hereinafter provided,
each of which funds the Trustee hereby agrees to maintain so long as any Note Participations are
Outstanding, and the money in each of such funds shall be disbursed only for the purposes and
uses hereinafter authorized (subject to Section 5.03):
(a) Interest Fund. The Trustee, on each Interest Payment Date, shall deposit
in the Interest Fund that amount of money representing the interest becoming due and payable on
the Notes on such Interest Payment Date. All money in the Interest Fund shall be used and
withdrawn by the Trustee solely for the purpose of paying the interest evidenced and represented
by the Note Participations on each Interest Payment Date.
(b) Principal Fund. The Trustee. on the Principal Payment Date, shall deposit
in the Principal Fund that amount of money representing the principal becoming due and payable
on the Notes on such Principal Payment Date. All moneys in the Principal Fund shall be used
and withdrawn by the Trustee solely for the purpose of paying the principal evidenced and
represented by the Note Participations on the Principal Payment Date.
Section 5.03. Draws under or Payments Pursuant to Credit Instrument;
Payment of Principal and Interest. The other provisions of this Article V notwithstanding, the
Trustee shall draw upon or request payment under the Credit Instrument by the times required
therein and in accordance with the terms thereof. at such time and in sufficient amounts to make
timely payment of the portion of interest on and principal of the Note Participations (up to the
amount covered by such Credit Instrument). The Trustee shall draw upon and request payment
pursuant to the Credit Instrument on each Interest Payment Date and on the Principal Payment
Date if the amounts in the Principal Fund and/or the Interest Fund, as appropriate, are
insufficient to pay the full amount of the principal of and/or interest on the Note Participations.
Except as otherwise explicitly provided in the Credit Instrument (and subject to the next
paragraph of this Section), each Note Participation shall be paid first from all available moneys
in the Interest Fund and Principal Fund. To the extent amounts in the Principal Fund and Interest
Fund, together with the maximum amount available under the Credit Instrument (as determined
pursuant to the Credit Instrument Payment Certificate, if any) is insufficient to pay the Note
Participations in full, moneys drawn under or paid pursuant to the Credit Instrument shall be
used to pay each Note Participation pro rata, and allocated to each Note pro rata in accordance
with the unpaid principal thereof and interest thereon. and shall be applied to pay. and allocated
to, interest first and then principal. Pending application as aforesaid. moneys drawn under or
paid pursuant to the Credit Instrument shall be deposited in the Credit Fund, which shall be
maintained by the Trustee and held in trust apart from all other moneys and securities held under
this Trust Agreement or otherwise, and over which the Trustee shall have the exclusive and sole
right of withdrawal for the exclusive benefit of the Owners. Moneys in the Credit Fund derived
from a draw under or payment pursuant to a Credit Instrument in the form of a letter of credit or
policy of insurance shall be held in cash and shall not be applied to satisfy any costs. expenses or
liabilities of the Trustee.
()HS \\'esl:~(}(J611~60_3
21
Notwithstanding anything to the contrary contained in this Section 5.03 or this
Article V, if the Credit Provider honors a drawing or payment request made pursuant to this
Section 5.03 on the Credit Instrument to pay the fraction (which may be equal to one) of
principal of or interest on the respective Note or Notes as evidenced and represented by the Note
Participations and covered by the Credit Instrument, moneys, if any, on deposit in the Principal
Fund and Interest Fund that would have been applied to pay such principal or interest absent this
Section 5.03 and such drawing or payment on the Credit Instrument shall be applied by the
Trustee to reimburse the Credit Provider by wire transfer as soon as possible and, in any case,
prior to I :00 p.m., Los Angeles time, on the day such drawing or payment request is honored, in
the amount of such payment or disbursement by the Credit Provider honoring such drawing or
payment request. Any moneys at any time on deposit in the Note Participation Payment Fund
allocable to a Local Agency in excess of the amounts required to be deposited therein on the
Maturity Date pursuant to Section 5.02 hereof shall be applied by the Trustee to the payment of
any of such Local Agency's Predefault Obligations specified by the Credit Provider in writing to
the Trustee. Any amounts on deposit in the Credit Fund derived from a draw under or payment
pursuant to a Credit Instrument in the form of a letter of credit or policy of insurance and
remaining following a date on which a payment of principal of and interest on the Note
Participations is made shall promptly be remitted by the Trustee to the Credit Provider.
In the event of default by any Local Agency in the payment of any of the principal
of or interest on its Note, upon payment by the Credit Provider of a drawing or payment request
under the Credit Instrument with respect to the payment of such principal or interest, the Credit
Provider shall be deemed to have purchased the Secured Percentage of such Note. The Credit
Provider will succeed and be subrogated to the rights of the Owners of the Note Participations
with respect to the Secured Percentage of such Note, and the Trustee shall hold such Note for the
benefit of the Credit Provider (in the Secured Percentage) and also for the benefit of the Owners
(to the extent the Secured Percentage of the Credit Instrument is less than 100%) in accordance
with the provisions of the Credit Agreement. Any Note described in the preceding sentence shall
be a Defaulted Note and the unpaid portion thereof shall be deemed Outstanding and shall not be
deemed paid until all amounts due to the Credit Provider (as provided therein and in the Credit
Instrument and/or the Credit Agreement, if any) and to the Owners with respect to the unsecured
portion thereof have been paid in full, including interest accrued thereon as provided therein and
in the Credit Agreement. The interest on the unpaid portion of a Defaulted Note (or the portion
thereof with respect to which a Credit Instrument applies for which no reimbursement on a draw
or payment thereunder has been made) shall be payable at the Default Rate and upon demand
and shall be computed on the basis of a 360-day year, for the actual number of days elapsed;
provided that, no interest shall accrue on the portion of a Defaulted Note which is paid with a
drawing on or payment pursuant to the Credit Instrument to the extent such portion of a
Defaulted Note is paid (and reimbursement is made to the Credit Provider with respect to the
drawing on or payment pursuant to the Credit Instrument by I :00 p.m., Los Angeles time, on the
date of such draw or payment). Upon payment iR full of a Note, and reimbursement to the Credit
Provider with respect to the drawing under or payment pursuant to the Credit Instrument with
respect to such Note and payment of all Predefault Obligations and Reimbursement Obligations
due and owing such Credit Provider with respect to such Note, from amounts available in the
Principal Fund or Interest Fund or otherwise, the Trustee shall, with the consent of the Credit
Provider cancel such Note and surrender it to the Local Agency that issued it; provided that, each
Note shall be deemed Outstanding and shall not be cancelled by the Trustee until (i) the Owners
OHS West.:;60(J114hO.3
22
have been paid in full with respect to such Note, and (ii) the Credit Provider has been so
reimbursed for the drawings or payments made under the Credit Instrument with respect to such
Note and all Predefault Obligations and Reimbursement Obligations due and owing such Credit
Provider with respect to such Notes have been paid.
Section 5.04. Credit Instrument. The Trustee shall hold and maintain the
Credit Instrument for the benefit of the Owners until the Credit Instrument terminates in
accordance with its terms. Subject to the provisions of this Trust Agreement, the Trustee shall
diligently enforce all terms, covenants and conditions of the Credit Instrument, including
payment when due of any draws on or claims under the Credit Instrument, and will not consent
to or agree to or permit any amendments or modifications thereof which would materially
adversely affect the rights or security of the Owners. If at any time during the term of the Credit
Instrument any successor Trustee shall be appointed and qualified under this Trust Agreement,
the resigning or removed Trustee shall request that the Credit Provider transfer the Credit
Instrument to the successor Trustee. If the resigning or removed Trustee fails to make this
request, the successor Trustee shall do so before accepting appointment. Subject to prior
defeasance of the Note Participations pursuant to Article X, upon the honoring by the Credit
Provider of the final drawing, if any, on the Principal Payment Date, the Trustee shall as soon as
practical. and in any event within two Business Days surrender the Credit Instrument to the
Credit Provider for cancellation by the Credit Provider.
The Credit Instrument is being deposited with the Trustee as the beneficiary for
the accounts of the applicable Local Agencies for which it acts as Trustee, and the Trustee has no
intention to sell or distribute the Credit Instrument.
The Trustee may accept, hold and draw upon any Credit Instrument issued by
itself or by any of its corporate affiliates to provide security and a source of payment for the Note
Participations. The Trustee covenants that it shall at all times maintain adequate controls to
manage any potential conflict of interest. Notwithstanding any other provision herein to the
contrary, while the Credit Provider issuing the Credit Instrument is the Trustee or an affiliate of
the Trustee and such Credit Provider has not failed to comply with its payment obligations under
the Credit Instrument, the Trustee shall have no discretion with respect to the exercise of
remedies upon an Event of Default with respect to any Note or Notes secured by the Credit
Instrument and shall do so only upon the written direction of such Credit Provider. The Trustee
shall immediately tender its resignation and take prompt steps to have a successor trustee
appointed satisfying the requirements of this Trust Agreement if such affiliated Credit Provider
shall fail at any time to honor a properly presented draw on the Credit Facility.
Section 5.05. Investments. Any money held by the Trustee at any time in any
Fund created hereunder other than the Credit Fund shall, to the fullest extent practicable, be
invested as directed in writing by an Authorized Authority Representative in Permitted
Investments which will, as nearly as practicable, mature on or before the dates on which such
money is anticipated to be needed for disbursement hereunder. In the absence of any written
direction from the Authoritv, the Trustee shall invest anv monev held in anv Fund created
... -' ~ .I
hereunder (other than the Credit Fund) in Permitted Investments identified in clause (vi) of the
definition thereof which will, as nearly as practicable, mature on or before the dates on which
such money is anticipated to be needed for disbursement hereunder. The amounts held in the
--:\,:Q:2()()()11-l.60J
"
--'
Proceeds Fund will be accounted for separately for the respective Local Agencies. The Trustee
may act as principal or agent in the acquisition or disposition of any investment and may at its
sole discretion, for the purpose of any such investment, except with respect to the Credit Fund,
commingle any of the money held by it hereunder. The Trustee shall not be liable or responsible
for any loss suffered in connection with any such deposit or investment made by it under the
terms of and in accordance with this Section 5.05. The Trustee may present for redemption or
sell any such deposit or investment whenever it shall be necessary in order to provide money to
meet any payment of the money so deposited or invested, and the Trustee shall not be liable or
responsible for any losses resulting from any such deposit or investment presented for
redemption or sold. Any interest or profits on such deposits and investments received by the
Trustee shall be credited to the fund, account or subaccount from which such investment was
made.
Moneys in the Credit Fund shall be invested as specified in Section 5.03 hereof.
Section 5.06. Provisions Relatin2 to the Credit Provider. So long as the
Credit Provider shall not be in default under the Credit Instrument, notwithstanding anything to
the contrary set forth in this Trust Agreement, the provisions of this Section shall govern:
(I) Amendments. Any provision of this Trust Agreement expressly recognizing or
granting rights in or to the Credit Provider may not be amended in any manner which affects the
rights of the Credit Provider hereunder without the prior written consent of the Credit Provider.
The Credit Provider reserves the right to charge the Tmstee a fee (to be reimbursed by the Local
Agencies under Section 8.03 hereof) for any consent or amendment to this Tmst Agreement
while the Credit Instrument is outstanding.
(2) Consent of Credit Provider in the Event of Insolvencv. Any reorganization or
liquidation plan with respect to a Local Agency must be acceptable to the Credit Provider. In the
event of any such reorganization or liquidation of a Local Agency, the Credit Provider shall have
the right to vote on behalf of all Owners who hold Notes supported by the Credit Provider under
the Credit Instrument.
(3) Notices. In addition to the notices and information to be provided to the Credit
Provider under other sections of this Trust Agreement and each Local Agency's Note Resolution
(including, without limitation, pursuant to Section 19 of each Local Agency's Note Resolution),
the following information shall be delivered at the Local Agencies' expense to the attention of
of the Credit Provider, unless otherwise indicated:
(a) a copy of any notice to be given to the registered Owners of the Note
Participations, including, without limitation, notice of any redemption or defeasance of
Note Participations, and any certificate rendered pursuant to this Trust Agreement
relating to the security for the Note Participations.
(b) any notices delivered pursuant to the continuing disclosure undertaking in
Article XI hereof shall also be delivered to the Credit Provider by thc Trustee as
dissemination agent.
~HIS Wes!26061 146(13
24
The following notices shall be sent to the attention of the
Provider, with a copy to the [General Counsel's Office] of the Credit Provider:
of the Credit
(c) the Trustee shall notify the Credit Provider of any failure of any Local
Agency to provide relevant notices and certificates pursuant to the Trust Agreement; and
(d) notwithstanding any other provision of this Trust Agreement, the Trustee
shall immediately notify the Credit Provider if at any time there is insufficient money to
make any payments of principal of and/or interest on the Notes as required and
immediately upon the occurrence of any Event of Default hereunder.
The Trustee or the Local Agencies, as appropriate, will permit the Credit Provider to have
access to and to make copies of all books and records relating to the Notes and the Note
Participations at any reasonable time. Upon the occurrence of an Event of Default with respect
to any Local Agency, such Local Agency will permit the Credit Provider to discuss the affairs,
finances and accounts of such Local Agency with appropriate officers of such Local Agency and
will provide any information the Credit Provider may reasonably request regarding the security
for the Notes and the Note Participations.
The Credit Provider shall have the right to direct the Trustee to perform an accounting at
the Trustee's expense (to be reimbursed by the Local Agencies under Section 8.03 hereof), and
the Trustee's failure to comply with such direction within thirty (30) days after receipt of written
notice of the direction from the Credit Provider shall be deemed a default hereunder; provided,
however, that if compliance cannot occur within such period, then such period will be extended
so long as compliance is begun and diligently pursued, but only if such extension would not
materially adversely affect the interests of any registered Owner of the Note Participations.
(4) T rustee- Related Provisions.
(a) The Trustee shall provide the Credit Provider prior written notice of any
Trustee (or paying agent) resignation.
(b) Notwithstanding any other proviSIOn of this Trust Agreement, in
determining whether the rights of the Owners will be adversely affected by any action
taken pursuant to the terms and provisions of this Trust Agreement, the Trustee (or
paying agent) shall consider the effect on the Owners as if there were no Credit
Instrument.
(a) The Credit Provider As Third-Partv Beneficiarv. To the extent that this
Trust Agreement confers upon or gives or grants to the Credit Provider any right, remedy or
claim under or by reason of this Trust Agreement, the Credit Provider is hereby explicitly
recognized as being a third-party beneficiary hereunder and may enforce any such right, remedy
or claim conferred, given or granted hereunder.
(H lS West::!(106114603
r
~)
ARTICLE VI
COVENAc'\lTS
Section 6.01. Compliance with Trust Al!reement. The Trustee will not execute
or deliver any Note Participations in any manner other than in accordance with the provisions
hereof; and the Local Agencies will not suffer or permit any default to occur hereunder. but will
faithfully observe and perform all the agreements, conditions, covenants and terms contained
herein required to be observed and performed by them.
Section 6.02. Amendment of Notes. The Local Agencies and the Trustee will
not amend or permit the amendment of the Notes without the prior written consent of the Credit
Provider and without (a)(l) a determination that such amendment does not materially adversely
affect the interest of the Owners or (2) the written consents of the Owners of a majority in
aggregate principal amount of the Note Participations then Outstanding, and (b) an Opinion of
Counsel to the effect that such amendment will not cause interest on the Notes to be included in
gross income for federal income tax purposes; provided that no such amendment shall reduce the
rate of interest or amount of principal or extend the time of payment thereof with respect to any
Note.
Section 6.03. Observance of Laws and Rel!ulations. The Local Agencies will
faithfully observe and perform all lawful and valid obligations or regulations now or hereafter
imposed on them by contract, or prescribed hy any state or national law, or by any officer, board
or commission having jurisdiction or control, as a condition of the continued enjoyment of each
and every franchise, right or privilege now owned or hereafter acquired by them, including their
right to exist and carryon their respective businesses. to the end that such ohservance or
performance is material to the transactions contemplated hereby.
Section 6.04. Tax Covenants. (a) The Local Agencies will not take any action
or fail to take any action, if such action or failure to take such action would adversely affect the
exclusion from gross income of the interest payable on the Notes, as evidenced and represented
by the Note Participations, under Section 103 of the Code. The Local Agencies will not directly
or indirectly use or permit the use of any proceeds of the Note Participations or the obligations
which they evidence and represent or any other funds held hereunder or take or omit to take any
action that would cause the Note Participations or the obligation which they represent to be
"private activity bonds" within the meaning of Section 141(a) of the Code or obligations which
are "federally guaranteed" within the meaning of Section 149(b) of the Code.
(b) The Local Agencies will not directly or indirectly use or permit the use of
any proceeds of the Note Participations or the obligations which they represent or any other
funds held hereunder or take or omit to take any action that would cause the Note Participations
or the obligations which they evidence and represent to be "arbitrage bonds" within the meaning
of Section 148 of the Code. To that end, the Local Agencies have covenanted to comply with all
requirements of Section 148 of the Code to the extent applicable to the Notes. In the event that
at any time any Local Agency is of the opinion (which opinion may be based on an Opinion of
Counsel), that for purposes of this Section 6.04(b) it is necessary to restrict or to limit the yield
on the investment of any moneys held by the Trustee under the Trust Agreement with respect to
OHS \Vest:260f1 11..+o(U
26
such Local Agency, such Local Agency shall so instruct the Trustee in writing, and the Trustee
shall take such action as may be necessary in accordance with such instructions.
Section 6.05. Liens. So long as any Note Participations are Outstanding, or any
Predefault Obligation or Reimbursement Obligation is outstanding, the Local Agencies will not
creat.e or suffer to be created any pledge of or lien on the Notes other than the pledge and lien
hereo f.
Section 6.06. Accountinl! Records and Statements. The Trustee shall keep
proper books of record and account in accordance with industry standards in which complete and
correct cntries shall be made of all transactions made by the Trustee relating to the receipt,
investment, disbursement, allocation and application of all funds received by the Trustee
hereunder. Such records shall specify the account or fund to which each investment (or portion
thereof) held by the Trustee is to be allocated and shall set forth, in the case of each investment:
(a) its purchase price; (b) identifying infoTInation, including par amount, coupon rate, and
payment dates: (e) the amount received at maturity or its sale price, as the case may be; (d) the
amounts and dates of any payments made with respect thereto; and (e) such documentation as is
required to be obtained as evidence to establish that all investments have been purchased in
arms' length transactions with no amounts paid to reduce the yield on the investments.
Such records shall be open to inspection by the Credit Provider, the Authority and
any Local Agency at any reasonable time during regular business hours on reasonable notice.
Not later than the Principal Payment Date and upon retirement of all Note Participations, the
Trustee will furnish to the Credit Provider, to the Local Agencies and the Local Agencies'
financial advisor, and to any Owner who may so request (at the expense of such Owner) a
complete statement covering the receipts, deposits and disbursements of the funds hereunder.
Section 6.07. Recordation and Filinl!. The Local Agencies will file, record,
register, renew, refile and rerecord all such documents, including financing statements (or
continuation statements in connection therewith), as may be required by law in order to maintain
at all times a security interest in the Notes under and pursuant to the Trust Agreement, all in such
manner, at such times and in such places as may be required in order to fully perfect, preserve
and protect the benefit, protection and security of the Owners and the Credit Provider and the
rights of the Trustee hereunder, and the Local Agencies will do whatever else may be necessary
or be reasonably required in order to perfect and continue the pledge of and lien on the Notes as
provided herein.
Section 6.08. Further Assurances. Whenever and so often as requested to do so
by the Trustee, the Credit Provider or any Owner, the Local Agencies will promptly execute and
deliver, or cause to be executed and delivered. all such other and further assurances. documents
or instruments 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, the Credit
Provider and the Owners the benefit, protection and security conferred, or intended to be
conferred, upon them hereby.
Section 6.09. Satisfaction of Predefault Oblil!ations. In accordance with any
applicable provisions of the Credit Instrument or Credit Agreement, if any. upon receipt of
OHS \Vest:2bO(l 11'+603
27
instructions from any Local Agency, resulting from such Local Agency's receipt of notice and
request for payment of Predefault Obligations from the Credit Provider, if any, pursuant to
applicable provisions of the Credit Instrument or Credit Agreement. if any, the Trustee shall
remit to the Credit Provider (upon receipt of instructions from the applicable Local Agency)
moneys held by the Trustee and allocable to such Local Agency which moneys are available
under this Trust Agreement for payment of such amounts due to the Credit Provider. However,
the amount remitted from such moneys which are allocable to a specific Local Agency shall not
exceed that Local Agency's allocable share of the total amount due to the Credit Provider. If
such moneys held by the Trustee are insufficient to pay the Local Agency's pro rata share of
such Predefault Obligations, the Local Agency shall pay the amount of the deficiency to the
Trustee for remittance to the Credit Provider. Moneys thus received by the Trustee from the
Local Agencies shall be deposited in the Note Participation Payment Fund and shall be paid to
the Credit Provider by the fifteenth day after delivery by the Credit Provider to the Local Agency
or Local Agencies of notice that amounts are due to the Credit Provider, pursuant to applicable
provisions of the Credit Agreement.
OHS \\'est:2tl)(d 1.+6(13
28
ARTICLE VII
DEFAULT AND LIMITATIONS OF LIABILITY
Section 7.01. Action on Default. If any default in the payment of principal of or
interest on a Note or any other "Event of Default" defined in a Note Resolution shall occur and
be continuing, or if any default shall be made by a Local Agency in the performance or
observance of any other of the covenants, agreements or conditions on its part herein contained
and such default shall have continued for a period of thirty (30) days after written notice thereof
shall have been given to such Local Agency by the Trustee or the Owners of not less than a
majority in aggregate principal amount evidenced and represented by the Note Participations at
the time Outstanding, then such default shall constitute an "Event of 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 evidenced and represented by
the Note Participations at the time Outstanding shall be entitled, upon notice in writing to such
Local Agency. but subject to the provisions of Section 7.05, to exercise the remedies provided to
the owner of the Note then in default under the Note Resolution pursuant to which it was issued
which are necessary or desirable to collect the principal of the Note and the interest thereon to
maturity.
The Owners of Note Participations, for purposes of the Trust Agreement and the
Note Resolution of each Local Agency, to the extent of their interest, shall be treated as owners
of the Notes and shall be entitled to all rights and security of the owners of Notes pursuant to
each Note and Note Resolution and the Trust Agreement, and shall be treated for all purposes as
owners of the Notes. Each Local Agency recognizes the rights of the Owners of the Note
Participations, acting directly or through the Trustee, to enforce the obligations and covenants
contained in its Note, its Note Resolution and the Trust Agreement; provided that in no event
shall a Local Agency be liable for any obligations, covenants or damages except those which
arise out of .its Note and its Note Resolution. and, in particular, no Local Agency shall be liable
for any obligations, liabilities, acts or omissions of any other Local Agency.
Section 7.02. Other Remedies of the Trustee. The Trustee shall have the right
(a) by mandamus or other action or proceeding or suit at law or in equity to
enforce its rights hereunder against any Local Agency or any director, supervisor, council
member, board member, trustee, member. officer or employee thereof, and to compel such Local
Agency or any such supervisor, council member, board member, trustee, member, officer or
employee thereof to observe or perform its or his or her duties under applicable law and the
agreements, conditions, covenants and terms contained herein, or in the applicable Note and
Note Resolution. required to be observed or performed by it or him or her;
(b) by suit in equity to enjoin any acts or things which are unlawful or violate
the rights of the Trustee, the Owners or the Credit Provider; or
(c) by suit in equity upon the happening of any default hereunder to require
any Local Agency and any director, supervisor, council member, board member, trustee,
member, officer and employee to account as the trustee of any express trust.
OHS \\"esc::6ll6I]-H,(l ~
29
Section 7.03. Non-Waiver. A waiver by the Trustee of any default hereunder or
breach of any obligation hereunder shall not affect any subsequent default hereunder or any
subsequent breach of an obligation hereunder or impair any rights or remedies on any such
subsequent default hereunder or on any such subsequent breach of an obligation hereunder. No
delay or omission by the Trustee to exercise any right or remedy accruing upon any default
hereunder shall impair any such right or remedy or shall be construed to be a waiver of any such
default hereunder or an acquiescence therein, and every right or remedy conferred upon the
Trustee by applicable 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 determined adversely to the Trustee, the Credit Provider. or the Local Agencies.
the Trustee. the Credit Provider and the Local Agencies shall be restored to their former
positions, rights and remedies as if such action, proceeding or suit had not been brought or taken.
Notwithstanding anything to the contrary, no waiver by the Trustee of any default
hereunder or breach of any obligation hereunder with respect to any Local Agency shall be
effective without the prior written consent of the Credit Provider.
Section 7.04. Application of Funds. (a) All moneys received by the Trustee
pursuant to any right given or action taken under the provisions of this Article VII shall be
deposited into the segregated Payment Account of the Note Participation Payment Fund relating
to the defaulting Local Agency's Note and be applied by the Trustee after payment of all
amounts due and payable under Section 8.03 hereof in the following order upon presentation of
the several Note Participations, and the stamping thereon of the payment if only partially paid, or
upon the surrender thereof if fully paid; provided that (i) all amounts in the Credit Fund shall be
applied (without regard to Section 8.03 hereof) solely to payment of the principal and interest
evidenced and represented by the Note Participations, and (ii) all moneys in the defaulting Local
Agency's Payment Account in the Note Participation Payment Fund allocable to reimbursement
of the Credit Provider for drawings or payments under the Credit Instrument shall be applied
solely to reimburse the Credit Provider; and provided, further, that the Trustee shall obtain and
follow the instructions contained in an Opinion of Counsel and rebate or set aside for rebate from
the specified funds held hereunder, subject to the prior payment in full of all amounts applicable
to the respective Local Agency specified in clause (ii) above, any amount pursuant to such
instructions required to be paid to the United States of America under the Code:
First, Costs and Expenses: to the payment of the costs and expenses of the
Trustee and of the Owners in declaring such Event of Default, including reasonable
compensation to its or their agents, attorneys and counsel;
Second, Interest: to the payment to the persons entitled thereto of all payments of
interest evidenced and represented by the Note Participations then due in the order of the due
date of such payments, and, if the amount available shall not be sufficient to pay in full any
payment or payments coming due on the same date, then to the payment thereof ratably,
according to the amounts due thereon. to the persons entitled thereto. without any discrimination
or preference. subject to subsection (B) of this Section;
OHS West:~60hll-t60,3
30
Third, Principal: to the payment to the persons entitled thereto of the unpaid
principal evidenced and represented by any Note Participations which shall have become due, in
the order of their due dates, with interest on the overdue principal and interest represented by the
Note Participations at a rate equal to the Default Rate and, if the amount available shall not be
sufficient to pay in full all the amounts due with respect to the Note Participations on any date,
together with such interest, then to the payment thereof ratably, according to the amounts of
principal due on such date to the persons entitled thereto, without any discrimination or
preference; and
Fourth, Predefault Obligations and Reimbursement Obligations: to the payment
of all Predefault Obligations and Reimbursement Obligations applicable to such Local Agency.
(b) If, upon the drawing or payment under the Credit Instrument then in
effect, in the full amount permitted under the Credit Instrument, any Owner (other than the
Credit Provider by right of subrogation) remains unpaid in full. no moneys received by the
Trustee pursuant to any right given or action taken under the provisions of this Article VII shall
be transferred to the Credit Provider until all Owners (other than the Credit Provider by right of
subrogation) are paid in full.
Section 7.05. Remedies Not Exclusive; Credit Provider's Control of
Remedies. No remedy conferred herein upon or reserved herein to the Trustee is intended to be
exclusive and all remedies shall be cumulative and each remedy shall be in addition to every
other remedy given hereunder or now or hereafter existing under applicable law or equity or by
statute or otherwise and may be exercised without exhausting and without regard to any other
remedy conferred by any other applicable law.
Notwithstanding anything to the contrary herein, the Credit Provider, so long as it
has not failed to comply with its payment obligations under the Credit Instrument, shall have the
right to direct the remedies upon any Event of Default hereunder but only with respect to any
Note or Notes secured by the Credit Instrument and only so long as such action will not
materially adversely affect the rights of any Owner; and the Credit Provider's prior consent shall
be required to any remedial action proposed to be taken by the Trustee hereunder with respect to
such Note or Notes, except that this consent requirement shall not affect or impair in any way the
right of action of any Owner to institute suit directly against a Local Agency to enforce payment
of the Note and such Local Agency shall be directly obligated to each Owner of the Note
Participations. The Trustee shall immediately notify such Credit Provider of any Event of
Default of which the Trustee has actual knowledge.
Section 7.06. Exercise of Remedies; Relative Ri2hts of Credit Provider and
Note Participation Owners. Upon the exercise by any Owner, the Trustee, or the Credit
Provider of its right of action to institute suit directly against an Local Agency to enforce
payment of the obligation evidenced and represented by such Owner's Note Participation, any
moneys recovered by such action shall be deposited with the Trustee and applied as provided in
Section 7.04 and in this Section 7.06.
The Local Agencies covenant and agree and each Note Participation Owner by
acceptance thereof likewise covenants and agrees that anything in this Trust Agreement or the
OilS WeSI2h0611460_:.
31
Notes or Note Participations to the contrary notwithstanding the payment of principal and
interest in respect of Notes as evidenced and represented by Note Participations shall be applied
pro rata to the Credit Provider, to the extent of the Secured Percentage and to the Note
Participation Owners in respect of principal or interest evidenced by any Note not represented by
the Secured Percentage.
In the event that, notwithstanding the foregoing, any payment or distribution of any
character shall be received by the Trustee or any Owner in contravention of any of the terms
hereof such payment or distribution or security shall be received in trust for the benefit of, and
shall be paid over or delivered and transferred to, the Credit Provider and the Owners of the Note
Participations, in accordance with the priorities then existing among such Owners. In the event
of the failure of the Trustee or any Owner to endorse or assign any such payment, each is hereby
irrevocably authorized to endorse or assign the same.
The provisions of this Section 7.06 are solely for the purpose of defining the
relative rights of the Credit Provider on the one hand and the Note Participation Owners on the
other hand. and nothing herein shall impair, as between the Local Agency and the Owner of any
Note Participation, the obligation of the Local Agency, which is unconditional and absolute, to
pay to the Owner thereof the principal and interest with respect thereto in accordance with its
tem1s, nor shall anything herein prevent the Trustee or the Owner of a Note Participation from
exercising all remedies otherwise permitted by applicable law or hereunder upon default
hereunder and under the Note Resolution.
Section 7.07. Limited Liability of tbe Local Al!:encies. Except as expressly
provided in the respective Notes and Note Resolutions, the Local Agencies shall not have any
obligation or liability to the Authority, the Trustee, the Owners or the Credit Provider, with
respect to the Trust Agreement or the preparation, execution, delivery, transfer, exchange or
cancellation of the Note Participations or the receipt, deposit or disbursement of the principal of
and interest on the Notes by the Trustee, or with respect to the performance by the Trustee of any
obligation contained herein required to be performed by it.
Notwithstanding anything to the contrary herein or in any Note or document
referred to herein, no Local Agency shall incur any obligation under Article VII, Section 3.03(b)
or Section 5.01 or otherwise hereunder, except to the extent payable from unencumbered
revenues attributable to its 2009-2010 fiscal year, nor shall any Local Agency incur any
obligation on account of any default, action or omission of any other Local Agency.
Section 7.08. No Liability by the Trustee to the Owners. Except as expressly
provided herein, the Trustee shall not have any obligation or liability to the Owners or Credit
Provider with respect to the payment when due of the Notes by the Local Agencies, or with
respect to the observance or performance by the Local Agencies of the other agreements,
conditions, covenants and terms contained in the Notes and the Note Resolutions.
Section 7.09. Limited Liability of the Authority. Except as expressly provided
herein, the Authority shall not have any obligation or liability to the Trustee, the Owners or the
Credit Provider, with respect to the payment when due of the Notes by the Local Agencies, or
with respect to the observance or performance by the Local Agencies of the other agreements,
(>lIS \Vesl:2W61I-l6UJ
'7
~-
conditions, covenants and terms contained in the Notes and the Note Resolutions, or with respect
to the performance by the Trustee of any obligation contained herein required to be performed by
it. Notwithstanding anything to the contrary contained in the Note Participations, the Trust
Agreement or any other document related thereto, the Authority shall not have any liability
hereunder or by reason hereof or in connection with any of the transactions contemplated hereby
except to the extent payable from moneys received from or with respect to the Notes and
available thereof in accordance with the Trust Agreement.
OllS WesL2A()(Ji \460.3
ARTICLE VIII
THE TRUSTEE
Section 8.01. Emplovment and Duties of the Trustee. The Authority hereby
appoints and employs the Trustee to receive, deposit and disburse the payments on the Notes as
provided herein, to prepare, execute, deliver, transfer, exchange and cancel the Note
Participations as provided herein, to pay the interest and principal evidenced and represented by
the Note Participations to the Owners thereof as provided herein and to perform the other
obligations contained herein; all in the manner provided herein and subject to the conditions and
terms hereof. By executing and delivering this Trust Agreement, the Trustee undertakes to
perform such obligations (and only such obligations) as are specifically set forth herein, and no
implied covenants or obligations shall be read herein against the Trustee.
Section 8.02. Removal and Resi!!Dation of the Trustee. The Authority, with
the consent of the Credit Provider, may at any time remove the Trustee initially a party hereto
and any successor thereto by giving written notice of such removal by mail to the Trustee, all of
the Local Agencies, all Owners of Note Participations and the Credit Provider and the Trustee
initially a party hereto and any successor thereto may at any time resign by giving written notice
by mail of such resignation to such Credit Provider, the Authority, the Local Agencies and all
Owners of Note Participations. The Credit Provider may at any time remove the Trustee if (i)
such Credit Provider is not in default on its or their payment obligations under the Credit
Instrument and (ii) all Notes deemed Outstanding are Defaulted Notes with respect to which such
Credit Provider's Secured Percentage is 100%. The Credit Provider shall give written notice by
mail of such removal to the Trustee, the Authority, all of the Local Agencies and all Owners of
Note Participations. If such removal is at the request of the Credit Provider, and the Trustee has
not been removed due to its willful misconduct or negligence hereunder, such Credit Provider
shall reimburse the Authority, and the Local Agencies for any additional costs resulting from
such removal. Upon giving any such notice of removal or upon receiving any such notice of
removal or resignation, the Authority shall promptly appoint a successor Trustee acceptable to
the Credit Provider by an instrument in writing; provided, that in the event the Authority does
not appoint a successor Trustee within sixty (60) days following the giving of any such notice of
removal or the receipt of any such notice of resignation, the removed or resigning Trustee may
petition any appropriate court having jurisdiction to appoint a successor Trustee. Any successor
Trustee shall be a bank or trust company doing business and having a principal corporate trust
office either in Los Angeles or San Francisco, California, having a combined capital (exclusive
of borrowed capital) and surplus (or the parent holding company of which has a combined
capital and surplus) of at least $75,000,000 and subject to supervision or examination by state or
national 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 sllch 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.
Any removal or resignation of a Trustee and appointment of a successor Trustee
shall become effective only upon the written acceptance of the appointment by the successor
Trustee.
"HS Wesl~flO()1146(U
34
Section 8.03. Compensation of the Trustee. The Authority. solely from
amounts held in the Costs of Issuance Fund or paid by the Local Agencies specifically for such
purpose, shall from time to time, subject to any agreement then in effect with the Trustee, pay the
Trustee compensation for its services and reimburse the Trustee for all its advances and
expenditures hereunder, including, but not limited to, advances to and fees and expenses of
accountants, agents, appraisers, consultants, counselor other experts employed by it in the
observance and performance of its rights and obligations hereunder; provided, that the Trustee
shall not have any lien for such compensation or reimbursement against any money held by it in
any of the funds established hereunder, although the Trustee may take whatever legal actions are
available to it directly against the Local Agencies to recover such compensation or
reimbursement.
Section 8.04. Protection of the Trustee. The Trustee shall be protected and
shall incur no liability in acting or proceeding in good faith upon any affidavit, bond, certificate,
consent. notice, request. requisition, resolution, statement, telegram, voucher, waiver 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 hereof, 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 same
as conclusive evidence of the truth and accuracy of such statements. The Trustee may consult
with counsel, who may be counsel to the Authority or the Local Agencies, with regard to legal
questions arising hereunder, and the opinion of such counsel shall be full and complete
authorization and protection in respect to any action taken or suffered by it hereunder in good
faith in accordance therewith.
The Trustee shall not be responsible for the sufficiency of the payments on the
Notes, or of the assignment made to it of all rights to receive the payments on the Notes and shall
not be deemed to have knowledge of any Event of Default unless and until it shall have actual
knowledge thereof or have received written notice thereof at its principal corporate trust office in
Los Angeles, California. The Trustee shall not be accountable for the use or application by the
Local Agencies, or any other party, of any funds which the Trustee properly releases to the Local
Agencies or which the Local Agencies may otherwise receive from time to time. The Trustee
makes no representation concerning, and has no responsibility for, the validity, genuineness,
sufficiency, or performance by parties other than the Trustee of the Trust Agreement, any Note
Participation. any Note, any Note Resolution, the Credit Instrument or the Credit Agreement or
of any other paper or document, or for taking any action on them (except as specifically and
expressly stated for the Trustee in the Trust Agreement), or with respect to any obligation of the
Local Agencies.
Whenever in the observance or performance of its rights and obligations
hereunder or under the Note Participations 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) may be deemed to be
conclusively proved and established by a Certificate of the Authority, and such certificate shall
be full warrant to the Trustee for any action taken or suffered under the provisions hereof upon
the faith thereof, but in its discretion the Trustee may, in lieu thereof, accept other evidence of
such matter or may require such additional evidence as to it may seem reasonable.
01lS \Vest26()(1] 14603
0-
~)
The Trustee may buy, sell, own, hold and deal in any of the Note Participations
and may join in any action which any Owner may be entitled to take with like effect as if it were
not a party hereto. The Trustee, either as principal or agent, may also engage in or be interested
in any financial or other transaction with the Local Agencies, and may act as agent, depository or
trustee for anv committee or bodv of Owners or of owners of obligations of the Local Agencies
",. ....."-
as freely as if it were not the Trustee hereunder.
The Tmstee shall not be answerable for the exercise of any of its rights hereunder
or for the performance of any of its obligations hereunder or for anything whatsoever in
connection with the funds established hereunder, except only for its own willful misconduct or
negli gence.
No provision hereof shall require the Trustee to expend or risk its own funds or
otherwise incur any financial or other liability or risk in the performance of any of its obligations
hereunder, or in the exercise of any of its rights hereunder, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. and before taking any remedial action hereunder (other than drawing on
or requesting payment under the Credit Instrument or Credit Instruments, as the case may be) the
Trustee may require that indemnity satisfactory to it be furnished for all expenses to which it
may be put and to protect it from all liability thereunder.
The Local Agencies will indemnify the Trustee for any liability incurred by the
Trustee as a result of the Tmstee executing the Representation Letter on behalf of the Local
Agencies.
The Local Agencies agree to indemnify and hold the Trustee, its officers,
directors, employees and agents harmless from and against any loss, liability, cost, expense or
claim whatsoever which it may incur without negligence or willful misconduct on the Trustee's
part, arising out of the acceptance of the duties of the Trustee hereunder and the administration
thereof or in the exercise or performance of its powers and duties hereunder, including without
limitation those of its attorneys, including the costs and expenses of defending against any claim
of liability. Such indemnity should survive the termination and discharge of this Tmst
Agreement.
The Tmstee shall have no responsibility with respect to any information
statement, recital or the content of any official statement, offering memorandum or any other
disclosure material prepared or distributed with respect to the Notes and Note Participations.
The Trustee shall not be liable with respect to any action taken or not taken by it
at the direction of the Owners of a majority in aggregate principal amount of the Note
Participations outstanding relating to the exercise of any right or remedy available to the Trustee
or the exercise of any trust or power conferred upon the Trustee hereunder.
The Trustee has executed the Note Participations solely in its capacity as Trustee
under this Trust Agreement and is not liable thereon in its individual or personal capacity and all
payments to be made thereon by the Trustee shall be made solely from funds held by the Trustee
under this Trust Agreement.
OHS West:260611460.3
36
Section 8.05. Notices to Ratin!! A!!encies. The Trustee shall notify each Rating
Agency, in writing, upon occurrence of any of the following events: (i) any amendment,
supplement or other change to this Trust Agreement from the form originally executed and
entered into; (ii) any amendment, supplement or other change to the Credit Agreement, if any,
from the form originally executed and entered into (that the Trustee is aware of); (iii) any
amendment, supplement or other change to the Credit Instrument, if any, from the form
originally executed and entered into; (iv) any amendment, supplement or other change to any
Note or Note Resolution (that the Trustee is aware of); and (v) the termination of the Credit
Instrument, if any; provided, however, that the Trustee shall incur no liability for failure to so
notify.
Section 8.06. Relation to Trustees of Other Series. The bank or trust company
appointed as Trustee hereunder shall also serve as the [Series 2009A-2 Trustee, the Series
2009A-3 Trustee, Series 2009A-4 Trustee and the Series 20098 Trustee].
OHS Wo;::st:260611460J
37
ARTICLE IX
AMENDMENT OR SUPPLEMENT OF TRUST AGREEMENT
Section 9.01. Amendment or Supplement of Trust Al!reement. This Trust
Agreement and the rights and obligations of the Owners and the Trustee hereunder may be
amended or supplemented at any time by an amendment hereof or supplement hereto which shall
become binding when the written consents of the Credit Provider, if any, and of the Owners of a
majority in aggregate principal amount of the Note Participations then Outstanding, exclusive of
Note Participations disqualified as provided in Section 9.02, are filed with the Trustee. No such
amendment or supplement shall (I) reduce the rate of interest evidenced and represented by any
Note Participation or extend the Interest Payment Date or reduce the amount of principal
evidenced and represented by any Note Participation or extend the Principal Payment Date
thereof (it being understood, however, that any such extension shall have no effect on the
duration of the Credit Instrument) without the prior written consent of the Owner of the Note
Participation so affected, or (2) reduce the percentage of Owners whose consent is required by
the terms of this Trust Agreement for the execution of certain amendments hereof or
supplements hereto, or (3) modify any of the rights or obligations of the Trustee without its prior
written consent thereto.
This Trust Agreement and the rights and obligations of the Owners and the
Trustee hereunder may also be amended or supplemented at any time by an amendment hereof or
supplement hereto which shall become binding upon execution with the prior written consent of
the Credit Provider, if any, but without the written consents of any Owners, in order to make any
modifications or changes necessary or appropriate in the Opinion of Counsel to preserve or
protect the exclusion from gross income of interest on the Notes for federal income tax purposes,
or, but only to the extent that such amendment shall not materially adversely affect the interests
of the Owners, for any purpose including, without limitation, one or more of the following
purposes:
(a) to add to the agreements, conditions, covenants and terms contained herein
required to be observed or performed by the Local Agencies other agreements, conditions,
covenants and terms thereafter to be observed or performed by the Local Agencies, or to
surrender any right reserved herein to or conferred herein on the Local Agencies;
(b) to make such provisions for the purpose of curing any ambiguity or of
correcting, curing or supplementing any defective provision contained herein or in regard to
questions arising hereunder which any Local Agency may deem desirable or necessary; or
(c) to modify, amend or supplement this Trust Agreement or any supplement
hereto in such manner as to permit the qualification hereof and thereof under the Trust Indenture
Act of 1939 or any similar federal statute hereafter in effect or to permit the qualification of the
Note Participations for sale under the securities laws of the United States of America or of any of
the states of the United States of America and, if twenty percent of the Local Agencies or Bond
Counsel so determine, to add to this Trust Agreement or any supplement hereto such other terms,
conditions and provisions as may be permitted by said Trust Indenture Act of 1939 or similar
federal statute.
OHS \Vcst:::606114603
38
Section 9.02. Disqualified Note Participations. Note Participations held for the
account of the Local Agencies (but excluding Note Participations held in any pension or
retirement fund of the Local Agencies) shall not be deemed Outstanding for the purpose of any
consent or other action or any calculation of Outstanding Note Participations provided herein,
and shall not be entitled to consent to or take any other action provided herein, and the Trustee
may adopt appropriate regulations to require each Owner, before his consent provided for herein
shall be deemed effective, to reveal if the Note Participations as to which such consent is given
are disqualified as provided in this Section.
Section 9.03. Procedure for Amendment with Written Consent of the
Owners. The Trust Agreement may be amended by supplemental agreement as provided in this
Section 9.03 in the event the consent of the Owners or the Credit Provider is required pursuant to
Section 9.01 hereof. A description of the proposed amendment, together with a request to the
Owners (and the Credit Provider) for their consent thereto, shall be mailed by the Trustee to each
Owner of a Note Participation at his address as set forth in the Note Participation registration
books maintained pursuant to Section 2.07 hereof. and to the Credit Provider, but failure to
receive copies of such description and request so mailed shall not affect the validity of the
supplemental agreement when assented to as in this Section provided. Nothing herein shall be
deemed to require the mailing of the supplemental agreement itself to the Owners.
Such supplemental agreement shall not become effective unless there shall be
filed with the Trustee the written consent of the Owners of at least a majority in aggregate
principal amount of the Note Participations then Outstanding and the Credit Provider (exclusive
of Note Participations disqualified as provided in Section 9.02 hereof) and notices shall have
been mailed as hereinafter in this Section 9.03 provided. Each such consent shall be effective
only if accompanied by proof of ownership of the Note Participations for which such consent is
given, which proof shall be acceptable to the Trustee. Any such consent shall be binding upon
the Owner of the Note Participation giving such consent and on any subsequent Owner (whether
or not such subsequent Owner has notice thereof) unless such consent is revoked in writing by
the Owner giving such consent or a subsequent Owner by filing such revocation with the Trustee
prior to the date when the Trustee has received the required percentage of consents of the
Owners of the Note Participations and acknowledged the same to the Local Agencies.
After the Owners of the required percentage of Note Participations and the Credit
Provider shall have filed their consents to such supplemental agreement, the Trustee shall
acknowledge to the Authority and the Credit Provider the effectiveness of the agreement and
shall mail a notice to the Local Agencies. the Credit Provider and the Owners of the Note
Participations in the manner hereinbefore provided in this Section 9.03 for the mailing of such
description, stating in substance that such supplemental agreement has been consented to by the
Owners of the required percentage of Note Participations and is effective as provided in this
Section 9.03 (but failure to mail copies of said notice shall not affect the validity of such
supplemental agreement or consents thereto). A record, consisting of the papers required by this
Section 9.03 to be filed with the Trustee, shall be proof of the matters therein stated until the
contrary is proved.
Section 9.04. Endorsement or Replacement of Note Participations after
Amendment or Supplement. After the effective date of any action taken as hereinabove
OHS \\'cst:260611460.3
39
provided, the Trustee may determine that the Note Participations may bear a notation by
endorsement in form approved by the Trustee as to such action, and in that case upon demand of
the Owner of any Outstanding Note Participation and presentation of the Note Participation for
such purpose at the office of the Trustee a suitable notation as to such action shall be made on
such ~ote Participation. If the Trustee shall so determine, new ~ote Participations 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 Owner of any Outstanding Note Participations such new
Note Participations shall be exchanged without cost to each Owner for Note Participations then
Outstanding at the office of the Trustee upon surrender of such Outstanding Note Participations.
All Note Participations surrendered to the Trustee pursuant to the provisions of this Section 9.04
shall be cancelled by the Trustee and shall not be redelivered.
Section 9.05. Amendment or Supplement bv Mutual Consent. The provisions
of this Article shall not prevent any Owner from accepting any amendment or supplement as to
the particular Note Participations owned by him; provided. that due notation thereof is made on
such Note Participations.
OHS We~t:~60611460_3
40
ARTICLE X
DEFEASANCE
Section 10.01. Discharl!e of Note Participations and Trust Al!reement.
(a) If the Trustee shall payor cause to be paid or there shall otherwise be paid
to the Owners of all Outstanding Note Participations the interest and principal evidenced and
represented thereby at the times and in the manner provided herein and therein, then such
Owners shall cease to be entitled to the pledge of and lien on the Notes and Note Payments and
any interest in the funds held hereunder as provided herein, and all agreements and covenants of
the Local Agencies to such Owners hereunder and under the Note Resolution shall thereupon
cease, terminate and become void and shall be discharged and satisfied.
(b) Any Outstanding Note Participations shall on their Principal Payment
Date be deemed to have been paid within the meaning of and with the effect expressed in
subsection (a) of this section if there shall be on deposit with the Trustee moneys which are
sufficient to pay the interest and principal evidenced and represented by such Note Participations
payable on and prior to their Principal Payment Date.
(c) Any Outstanding Note Participations shall prior to their Principal Payment
Date be deemed to have been paid within the meaning of and with the effect expressed in
subsection (a) of this section if there shall have been deposited with the Trustee either moneys in
an amount which shall be sufficient or United States Treasury bills, notes, bonds or certificates
of indebtedness. or obligations for which the full faith and credit of the United States of America
are pledged for the payment of interest and principal, and which are purchased with moneys and
are not subject to redemption except by the holder thereof prior to maturity (including any such
securities issued or held in book-entry form on the books of the Department of the Treasury of
the United States of America), the interest on and principal of which when paid will provide
money which, together with the moneys, if any, deposited with the Trustee at the same time,
shall be sufficient, in the opinion of an independent expert delivered to the Trustee and the Credit
Provider. to pay when due the interest evidenced and represented by such Note Participations on
and prior to their Principal Payment Date and the principal evidenced and represented by such
Note Participations.
(d) After the payment of the interest and principal evidenced and represented
by all Outstanding Note Participations as provided in this Section 10.01 and payment of all
Predefault Obligations and Reimbursement Obligations, at the Request of an Authorized
Authority Representative (if provided), the Trustee shall execute and deliver to the Authority and
the Local Agencies all such instruments as they may deem necessary or desirable to evidence the
discharge and satisfaction of the Trust Agreement, and the Trustee, after payment of all fees and
expenses of the Trustee, shall pay over or deliver to the Local Agencies all money or deposits or
investments held by it pursuant hereto which are not required for the payment of the interest and
principal evidenced and represented by such Note Participations, and the Trustee shall surrender
the Credit Instrument to the Credit Provider, for cancellation by the same.
OHS West26061 i4hIJ3
41
(e) Notwithstanding' anything to the contrary herein, the Trust Agreement
shall not be discharged without the prior written consent of the Credit Provider, if any, until all
Predefault Obligations and Reimbursement Obligations have been paid or payment duly
provided for by the Trustee's retention of sufficient funds to pay all Predefault Obligations and
Reimbursement Obligations due or to become due as of the date of such discharge.
Section 10.02. Unclaimed Monev. Anything contained herein to the contrary
notwithstanding, any money held by the Trustee in trust for the payment and discharge of the
interest or principal evidenced and represented by any Note Participations which remains
unclaimed for two (2) years after the date when the payments evidenced and represented by such
Note Participations have become payable, if such money was held by the Trustee on such date,
or for two (2) years after the date of deposit of such money if deposited with the Trustee after the
date when the interest and principal evidenced and represented by such Note Participations have
become payable, shall be repaid by the Trustee to the Authority 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 Authority for the payment of the interest and principal evidenced
and represented by such Note Participations, it being understood that the Credit Instrument shall
no longer be in effect at that time; provided, that before being required to make any such
payment to the Authority, the Trustee may, as a charge on such funds, give notice by mail to all
Owners of Note Participations that such money remains unclaimed and that after a date named in
such notice, which date shall not be less than sixty (60) days after the date of giving such notice.
the balance of such money then unclaimed will be returned to the Authority.
!S \\-cst:26()('] I-HIll.'
42
ARTICLE XI
CO~T1NUlNG DISCLOSURE AGREEMENT
Section 11.01. Continuin!! Disclosure A!!reement. Article XI of this Trust
Agreement constitutes a continuing disclosure agreement (the "Disclosure Agreement"), which
is entered into by the Local Agencies and the Trustee for the benefit of the Owners and
beneficial owners of the Note Participations and in order to assist the Participating Underwriters
in complying with Rule 15c2-12(b)(5) under the Securities Exchange Act of 1934.
Section 11.02. Definitions. In addition to the definitions set forth in Article I,
which apply to any capitalized term used in this Disclosure Agreement unless otherwise defined
in this Section 11.02, the following capitalized terms shall have the following meanings:
"Disclosure Representative" means the Authorized Local Agency Representative
of each of the Local Agencies or his or her designee, or such other officer or employee as any
Local Agency shall designate in writing to the Dissemination Agent and the Trustee from time to
time.
"Dissemination Agent" means the Trustee, acting in its capacity as Dissemination
Agent hereunder, or any successor Dissemination Agent designated in writing by the Local
Agencies and which has filed with the Trustee a written acceptance of such designation.
"EMMA" means the Electronic Municipal Market Access system information
about which may be found at the following Internet address: httP".emJ1la.msrb.or~.
"Listed Events" means any of the events listed in Section 11.03 hereof.
"Participating Underwriter" means any of the original underwriters of the Note
Participations required to comply with the Rule in connection with offering of the Note
Participations.
"Rule" means Rule 15c2-12(b)(5) adopted by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as the same may be amended from time
to time.
Section 11.03. Reportin!! of Si!!nificant Events.
(a) Pursuant to this Section 11.03 each Local Agency shall give, or cause to
be given. notice of the occurrence of any of the following events with respect to its Note and the
Note Participations, if material:
1.
principal and interest payment delinquencies;
2.
non-payment related defaults;
3.
modifications to rights of Owners;
OHS v...'est:2W(1] 1.+()Q.3
43
4. contingent or unscheduled Note or Note Participation calls;
5. defeasances;
6. rating changes;
7. adverse tax opinions or events adversely affecting the tax-exempt status of
the Notes or the Note Participations;
8. unscheduled draws on any debt service reserves reflecting financial
difficulties;
9. unscheduled draws on the Credit Instrument;
10. substitution of the Credit Provider or any failure by the Credit Provider to
perfoml on the Credit Instrument; or
11. release, substitution or sale of property securing repayment of the Notes or
Notc Participations.
(b) The Trustee shall, within three (3) Business Days of obtaining actual
knowledge of the occurrence of any of the Listed Events, without making any determination as
to materiality, contact the applicable Disclosure Representative or Representatives, inform such
person of the event, and request that the applicable Local Agency or Local Agencies promptly
notify the Dissemination Agent in writing whether or not to report the event pursuant to
subsection (I) of this Section 11.03. For purposes of this Disclosure Agreement, "actual
knowledge" of such Listed Events shall mean knowledge by an officer of the Trustee at the
Principal Office of the Trustee with regular responsibility for matters related to the Trust
Agreement and Note Participations.
(c) Whenever any Local Agency obtains knowledge of the occurrence of a
Listed Event, whether because of a notice from the Trustee pursuant to subsection (b) or
otherwise, such Local Agency shall as soon as possible determine if such event would be
material under applicable federal securities laws.
(d) If any Local Agency has determined that knowledge of the occurrence ofa
Listed Event would be material under applicable federal securities laws, such Local Agency shall
promptly notify the Dissemination Agent in writing. Such notice shall instruct the Dissemination
Agent to report the occurrence pursuant to subsection (I).
(e) If in response to a request under subsection (bt the applicable Local
Agency determines that the Listed Event would not be material under applicable federal
securities laws, such Local Agency shall so notify the Dissemination Agent in writing and
instruct the Dissemination Agent not to report the occurrence pursuant to subsection (I).
(f) If the Dissemination Agent has been instructed by any Local Agency to
report the occurrence of a Listed Event, the Dissemination Agent shall file a notice of such
occurrence with EMMA. Notwithstanding the foregoing, notice of Listed Events described in
',:.JHS \\'cs12006i i.t(Ju3
44
clauses (a) 4 and 5 shall not be given under this subsection any earlier than the notice (if any) of
the underlying event is given to Owners of affected Note Participations pursuant to this Trust
Agreement unless otherwise directed by the Local Agencies in writing
Section 11.04. Termination of Reportinl! Oblil!ation. The obligations under
this Article XI of the Trustee, the Dissemination Agent. and each Local Agency shall terminate
upon the defeasance, prior redemption or payment in full of all of the "Jotes and the Note
Participations.
Section 11.05. Dissemination Al!ent. The Local Agencies may. from time to
time, appoint or engage a Dissemination Agent to assist them in carrying out their respective
obligations under this Disclosure Agreement. and may discharge any such Agent, with or
without appointing a successor Dissemination Agent. The initial Dissemination Agent shall be
Wells Fargo Bank. National Association. The Dissemination Agent may resign at any time by
providing at least thirty (30) days written notice to the Local Agencies. the Authority and the
Trustee.
Section 11.06. Amendment; Waiver. The Local Agencies may, from time to
time. appoint or engage a Dissemination Agent to assist them in carrying out their respective
obligations under this Disclosure Agreement. and may discharge any such Dissemination Agent,
with or without appointing a successor Dissemination Agent. Notwithstanding any other
provision of this Disclosure Agreement, the Local Agencies and the Dissemination Agent and
the Trustee may amend this Disclosure Agreement (and the Trustee and the Dissemination Agent
shall agree to any amendment so requested by the Local Agencies, provided neither the Trustee
or Dissemination Agent shall be obligated to enter into an amendment increasing or modifying
its duties or obligations hereunder). and any provision of this Disclosure Agreement may be
waived, provided the following conditions are satisfied:
(a) if the amendment or waiver relates to the provisions of Section 11.03(a). it
may only be made in connection with a change in circumstances that arises from a change in
legal requirements, change in law, or change in the identity, nature, or status of any of the Local
Agencies or type of business conducted thereby;
(b) the undertakings herein. as proposed to be amended or waived, would, in
the opinion of nationally recognized bond counselor counsel expert in federal securities laws
addressed to the Local Agencies and the Trustee, have complied with the requirements of the
Rule at the time of the primary offering of the Note Participations, after taking into account any
amendments or interpretations of the Rule, as well as any change in circumstances;
(c) the proposed amendment or waiver either (i) is approved by the Owners in
the manner provided in this Trust Agreement for amendments to this Trust Agreement with the
consent of Owners, or (ii) does not, in the opinion of the nationally recognized bond counselor
counsel expert in federal securities la\\s addressed to the Local Agencies and the Trustee,
materially impair the interests of Owners or beneficial owners of the Note Participations; and
(d) the Local Agencies shall have delivered copies of such opinions and
amendment to EMMA.
OHS Wt:sL~60(,j ] 4()[).}
45
Section 11.07. Additional Information. Nothing in this Disclosure Agreement
shall be deemed to prevent the Local Agencies from disseminating any other information, using
the means of dissemination set forth in this Disclosure Agreement or any other means of
communication, or notice of occurrence of a Listed Event, in addition to that which is required
by this Disclosure Agreement. If the Local Agencies choose to include any information in any
notice of OCCUlTence of a Listed Event in addition to that which is specifically required by this
Disclosure Agreement, the Local Agencies shall have no obligation hereunder to update such
information or include it in any future notice of occurrence of a Listed Event.
Section 11.08. Default. In the event of a failure of the Local Agencies or the
Trustee to comply with any provision of this Disclosure Agreement, the Trustee shall at the
written request of any Participating Underwriter or the Owners or beneficial owners of at least
25% aggregate principal amount of Outstanding Note Participations, but only to the extent
indemnified to its satisfaction from any liability or expenses, including without limitation fees
and expenses of its attorneys, or any Owner or beneficial owner of a Note Participation may take
such actions as may be necessary and appropriate, including seeking mandate or specific
perfornlance by court order, to cause any of the Local Agencies or the Trustee, as the case may
be, to comply with its obligations under this Disclosure Agreement. A default under this
Disclosure Agreement shall not be deemed an "Event of Default" under Section 7.01 hereof or
under any Note Resolution, and the sole remedy under this Disclosure Agreement in the event of
any failure of the Local Agencies or the Trustee to comply with this Disclosure Agreement shall
be an action to compel performance.
Section 11.09. Duties, Immunities and Liabilities of Trustee and
Dissemination A!!ent. The Dissemination Agent (if other than the Trustee or the Trustee in its
capacity as Dissemination Agent) shall have only such duties as are specifically set forth in this
Disclosure Agreement, and the Local Agencies agree to indemnify and save the Dissemination
Agent and the Trustee, their officers, directors, employees and agents, harmless against any loss,
expense and liabilities which it may incur arising out of or in the exercise or performance of its
powers and duties hereunder, including the costs and expenses (including attorneys fees) of
defending against any claim of liability, but excluding liabilities due to the Dissemination
Agent's or Trustee's negligence or willful misconduct. The Dissemination Agent shall be paid
compensation by the Local Agencies for its services provided hereunder in accordance with its
schedule of fees as agreed to between the Dissemination Agent and the Local Agencies from
time to time and all expenses, legal fees and advances made or incurred by the Dissemination
Agent in the performance of its duties hereunder. The Dissemination Agent shall have no duty
or obligation to review any information provided to it by the Local Agencies hereunder and shall
not be deemed to be acting in any fiduciary capacity for the Local Agencies, Owners or any other
party. The obligations of the Local Agencies under this Section 11.09 shall survive resignation
or removal of the Dissemination Agent or Trustee and payment of the Notes and the Note
Participations.
Section 11.10. Beneficiaries. This Disclosure Agreement shall inure solely to
the benefit of the Local Agencies, the Trustee, the Dissemination Agent, the Purchaser and the
Participating Underwriters and the Owners and beneficial owners, from time to time of the Note
Participations. and shall create no rights in any other person or entity.
OJ-lS \VesI260Clll..tMU
46
ARTICLE XII
MISCELLANEOUS
Section 12.01. Benefits of the Trust Al!:reement Limited to Specified Parties.
Nothing contained herein, expressed or implied, is intended to give to any person other than the
Local Agencies, the Trustee, the Authority, the Credit Provider and the Owners any claim,
remedy or right under or pursuant hereto, and any agreement, condition, covenant or term
contained herein required to be observed or performed by or on behalf of the Local Agencies or
the Authority shall be for the sole and exclusive benefit of the Trustee, such Credit Provider, the
Authority and the Owners and their successors.
Section 12.02. Successor Deemed Included in All References to Predecessor.
Whenever either the Local Agencies, the Authority, 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 Local Agencies, the Authority or the
Trustee or such officer, and all agreements, conditions, covenants and terms contained herein
required to be observed or performed by or on behalf of the Local Agencies, the Authority 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 12.03. Execution of Documents bv 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.
Any declaration; request or other instrument in writing of the Owner of any Note
Participation shall bind all future Owners of such Note Participation with respect to anything
done or suffered to be done by the Local Agencies, the Authority or the Trustee in good faith and
in accordance therewith.
Section 12.04. Waiver of Personal Liabilitv; No Liabilitv of Authori"tv
Members. No director, supervisor, council member, board member, trustee, member, officer or
employee of the Local Agencies or the Authority shall be individually or personally liable for the
payment of the interest on or principal evidenced and represented by the Note Participations, but
nothing contained herein shall relieve any director, supervisor, council member, board member
trustee, member, officer or employee of the Local Agencies or the Authority from the
performance of any official duty provided by any applicable provisions of law or by the Notes or
the Note Resolution or the Trust Agreement.
OHS \,\'est::!(,n61 14603
47
Notwithstanding anything to the contrary herein or in any other document, no
entity that is a program participant of the Authority, or the supervisors, council members,
directors, trustees, members, officers and employees, shall have any liability of any kind
hereunder or by reason of or in connection with any of the transactions contemplated hereby,
other than with respect to a program participant of the Authority in its capacity as a Local
Agency hereunder.
Section 12.05. Content of Certificates; Post-Issuance Le!!al Opinions. Every
Certificate of the Authority or any Local Agency with respect to compliance with any agreement,
condition, covenant or term contained herein shall include: (a) a statement that the person or
persons executing such certificate have read such agreement, condition, covenant or term 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 contained in such certificate 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 the Local Agency or the Authority has complied with such agreement, condition,
covenant or ternl; and (d) a statement as to whether, in the opinion of the signers. the Local
Agency or the Authority has complied with such agreement, condition. covenant or term.
Any Certificate of the Authority or any Local Agency may be based, insofar as it
relates to legal matters, upon an Opinion of Counsel unless the person or persons executing such
certificate know that the Opinion of Counsel with respect to the matters upon which his or their
certificate may be based, as aforesaid, is erroneous, or in the exercise of reasonable care should
have known that the same was erroneous. Any Opinion of Counsel may be based, insofar as it
relates to factual matters and information with respect to which is in the possession of the Local
Agency or the Authority, upon a representation by an officer or officers of the Local Agency or
the Authority unless the counsel executing such Opinion of Counsel knows that the
representation with respect to the matters upon which his opinion may be based, as aforesaid, is
erroneous, or in the exercise ofreasonable care should have known that the same was erroneous.
Should any of the post-issuance Opinions of Counsel referred to in this Trust
Agreement, the Note Resolutions or in any Local Agency Certificate be delivered by bond
counsel other than Orrick, Herrington & Sutcliffe LLP, or if the Note Participations are prepaid
or remain Outstanding in connection with a transaction which is approved by counsel other than
Orrick, Herrington & Sutcliffe LLP, the Trustee, promptly after such opinion is delivered, will
mail, first-class, postage prepaid, (I) a copy of each said opinion to each Owner at said Owner's
address as it appears in the registration book kept by the Trustee and (2) a notice indicating that
the opinion of Orrick, Herrington & Sutcliffe LLP delivered in connection with the delivery of
the Note Participations may no longer be relied upon. The Authority and the Local Agencies
shall cooperate with the Tmstee in order to effectuate the provisions of this paragraph.
Section 12.06. Notice bv Mail. Any notice required to be given hereunder by
mail to any Owners of Note Participations shall be given by mailing a copy of such notice, first
class postage prepaid, to the Owners of such Note Participations at their addresses appearing in
the books required to be kept by the Trustee pursuant to the provisions of Section 2.07 and to the
Credit Provider not less than thirty (30) days nor more than sixty (60) days following the action
or prior to the event concerning which notice thereof is required to be given; provided, that
OH:-; Wc-st2(\061 1<l60_3
48
receipt of any such notice shall not be a condition precedent to the effectiveness of such notice
and failure to receive any such notice shall not affect the validity of the proceedings taken in
connection with the action or the event concerning which such notice was given.
Section 12.07. Funds. Any fund or account required to be established and
maintained herein by the Trustee may be established and maintained in the accounting records of
the Trustee either as an account or a fund, and may, for the purpose of such accounting records,
any audits thereof and any reports or statements with respect thereto, be treated either as an
account or a fund; but all such records with respect to all such funds shall at all times be
maintained in accordance with industry practice and with due regard for the instructions, if any,
delivered to the Trustee pursuant to Section 6.04(b) and for the protection of the security of the
Note Participations and the rights of the Owners and of the Credit Provider.
Section 12.08. Article and Section Headinl!s, 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," "hereunder" and other words of similar import refer to
the Trust Agreement as a whole and not to any particular article, section, subdivision or clause
thereof.
Section 12.09. Partial lnvaliditv. If anyone or more of the agreements,
conditions, covenants or terms contained herein required to be observed or performed by or on
the part of the Local Agencies, the Authority 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
Note Participations, and the Owners and the Credit Provider shall retain all the benefit,
protection and security afforded to them hereunder and under all provisions of applicable law.
The Local Agencies, the Authority and the Trustee hereby declare that they would have executed
and entered into this Trust 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 Note Participations pursuant hereto irrespective of the fact that anyone or more
of the 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 12.10. California Law. This Trust Agreement shall be construed and
governed in accordance with the laws of the State of California.
Section 12.11. 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 parties in writing from time to time, namely:
Of-IS \\-est:260611460.3
49
If to the Trustee:
Wells Fargo Bank, National Association
707 Wilshire Boulevard, 17th Floor
Los Angeles, California 90017
Attention: Corporate Trust Department
If to the Credit Provider:
If to the Authority:
California Statewide Communities
Development Authority
1100 K Street. Suite 101
Sacramento, California 95814
Attention: Secretary
If to the Local Agencies:
To the individual addressees as set forth in
Exhibit A to the Purchase Agreement
If to the Purchaser:
Barclays Capital Inc.
Section 12.12. Effective Date.
upon its execution and delivery.
This Trust Agreement shall become effective
Section 12.13. Execution in Counterparts. This Trust Agreement may be
executed and entered into in several counterparts, each of which shall be deemed an original, and
all of which shall constitute but one and the same instrument.
I)HS West2()061!..UlU
50
IN WITNESS WHEREOF, the Authority and each of the Local Agencies named
in Schedule I hereto have caused this Trust Agreement to be signed in their names by such
person as has been designated by their respective governing boards, and the Trustee, to evidence
its acceptance of the trust hereby created, has caused the Trust Agreement to be signed in the
name of the Trustee by an authorized officer of the Trustee, all as of the day and year first above
written.
CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMEI\T AUTHORITY
By:
Member of the Commission
of the Authority
WELLS FARGO BANK, NATIONAL
ASSOClA TION. as Trustee and Dissemination
Agent
By:
Authorized Signatory
OilS \\-est26U61 1-4603
IN WITNESS WHEREOF, the Authority and each of the Local Agencies named
in Schedule I hereto have caused this Trust Agreement to be signed in their names by such
person as has been designated by their respective governing boards, and the Trustee. to evidence
its acceptance of the trust hereby created, has caused the Trust Agreement to be signed in the
name of the Trustee by an authorized officer of the Trustee, all as of the day and year first above
written.
[LOCAL AGENCY]
By:
Authorized Local Agency Representative
OHS \Vcsl:~6061146().3
EXHIBIT A
[FORM OF NOTE PARTICIPATION]
[FORM OF FRONT OF NOTE PARTICIPATION]
UNITED STATES OF AMERICA
STATE OF CALIFORNIA
NO.1
CALIFOR..NlA COMMUNITIES
TAX AND REVENUE ANTICIPATION NOTE PROGR..A.M
NOTE PARTICIPATION, SERIES 2009A-I
Evidencing and Representing a Proportionate
Undivided Interest of the Owner Hereof
in Notes issued by Certain Local Agencies
Interest Rate
%
Principal
Pavrnent Date
[June 30], 2010
Date of Initial
Deliverv
July I, 2009
CUSIP
REGISTERED OWNER:
Cede & Co.
PRINCIP AL SUM:
$
THIS IS TO CERTIFY that the registered owner set forth above of this California
Communities Tax and Revenue Anticipation Note Program, Note Participations Series 2009A
(the "Note Participation"), is the owner of a proportionate undivided interest in the rights to
receive the principal and interest payments on the Notes (as that term is defined in the Trust
Agreement hereinafter mentioned) issued by various Local Agencies (the "Local Agencies") all
of which rights are evidenced and represented by this Note Participation. Such Notes have been
deposited by the Local Agencies with Wells Fargo Bank, National Association, a national
banking association duly organized and existing under and by virtue of the laws of the United
States of America, at its principal corporate trust office in Los Angeles, California, as trustee
(together with any successor thereto in accordance with the Trust Agreement, the "Trustee").
The Trustee may designate a different corporate trust office hereunder in either Los Angeles or
San Francisco by an instrument in writing delivered to the California Statewide Communities
Development Authority (the "Authority").
The Trustee is executing this Note Participation solely in its capacity as Trustee
under the Trust Agreement and is not liable thereon in its individual or personal capacity.
The registered owner of this Note Participation is entitled to receive, subject to the
terms of the Notes, on the Principal Payment Date (the "Principal Payment Date") set forth
above, upon surrender of this Note Participation on such Principal Payment Date at said office of
the Trustee, the principal sum set forth above, representing the registered owner's proportionate
share of the principal payments on the Notes becoming due and payable on such Principal
01-15 Wcst:260(1l1~603
A-I
Payment Date. In addition, the registered owner of this Note Participation is entitled to receive
such registered owner's proportionate share of the interest payments on the Notes accruing from
the date of initial issuance of the Notes and becoming due and payable on the Principal Payment
Date. Such proportionate share of interest is determined by the multiplication of the aforesaid
principal sum by the interest rate per annum set forth above determined on the basis of a 360-day
year consisting of twelve 30-day months. All such amounts are payable in lawful money of the
United States of America.
This Note Participation is one of the duly authorized note participations entitled
"California Communities Tax and Revenue Anticipation Note Program, Note Participations,
Series 2009A" aggregating $[A-I PAR AMOUNT] (the "Note Participations") which have been
executed by the Trustee under and pursuant to the terms of a Trust Agreement (the "Trust
Agreement") dated as of July I, 2009 by and between the Trustee, the Local Agencies and the
Authority. Copies of the Trust Agreement are on file at said office of the Trustee, and reference
is hereby made to the Trust Agreement and to any and all amendments thereof and supplements
thereto for a description of the agreements, conditions, covenants and terms securing the Note
Participations, for the nature, extent and manner of enforcement of such agreements, conditions,
covenants and terms, for the rights and remedies of the registered owners of the Note
Participations with respect thereto, for the terms under which the Trust Agreement and the Notes
can be amended, and for the other agreements, conditions, covenants and terms upon which the
Note Participations are executed and delivered thereunder, all to which the owner hereof assents
and agrees by acceptance hereof.
The Note Participations are authorized to be executed and delivered in the form of
fully registered Note Participations in denominations of five thousand dollars ($5.000) or any
multiple thereof.
This Note Participation is transferable or exchangeable by the registered owner
hereof, in person or by his attorney duly authorized in writing, at said office of the Trustee, but
only in the manner, subject to the limitations and upon payment of the charges provided in the
Trust Agreement, and upon surrender of this Note Participation for cancellation accompanied by
delivery of a duly executed written instrument of transfer or exchange, a new Note Participation
or Note Participations of authorized denominations equal to the principal amount hereof will be
executed and delivered by the Trustee to the registered owner hereof in exchange or transfer
herefor.
The Trustee may treat the registered owner hereof as the absolute owner hereof
for all purposes, whether or not this Note Participation shall be overdue, and the Trustee shall not
be affected by any knowledge or notice to the contrary; and payment of the interest and principal
evidenced and represented by this Note Participation shall be made only to such registered owner
as above provided, which payments shall be valid and effectual to satisfy and discharge the
liability evidenced and represented by this Note Participation to the extent of the sum or sums so
paid.
The Note Participations each evidence and represent a proportionate undivided
interest in the Notes and enjoy the benefits of a security interest in the money held in certain
funds established pursuant to the Trust Agreement, subject to the provisions of the Trust
()HS Wcst:260611-+W_~
1>,,_'
Agreement permitting the disbursement thereof for or to the purposes and on the conditions and
terms set forth therein.
The Notes are issued pursuant to Sections 53850 to 53858, both inclusive, of the
Government Code of the State of California (herein called the "Act") (being Article 7.6, Chapter
4, Part I, Division 2, Title 5 of the Government Code) by the Local Agencies in anticipation of
the receipt of taxes, income, revenue, cash receipts and other moneys to be received by the Local
Agency attributable to Fiscal Year 2009-2010, a portion of which revenues are pledged for
repayment of the Notes. The payment of a portion of principal of and interest on the Notes
represented by the Note Participations is also secured in whole or in part jointly. but not
severally by [an irrevocable letter of credit] (the "Credit Instrument") issued by
The Credit Instrument expires on July _, 20 I 0 unless terminated earlier in accordance with its
terms.
The Trustee has no obligation or liability to the registered owners of the Note
Participations for the payment of the interest or principal evidenced and represented by the Note
Participations; but rather the Trustee's sole obligation is to administer, for the benefit of the
Local Agencies and the registered owners of the Note Participations, the various funds and other
duties established under the Trust Agreement.
The Owner hereby has a proportionate undivided ownership interest in each of the
following Notes, each dated the Date of Initial Delivery, maturing on the Principal Payment Date
and bearing interest at the Interest Rate per annum and payable on the Principal Payment Date,
all as specified on the face of this Note Participation.
Local Agency
Principal Amount
See Schedule Attached
Total
See Schedule Attached
$[A-I PAR AMOUNT]
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Trustee or its agent for the
registration of transfer, exchange, or payment, and any certificate issued is registered in the name
of Cede & Co. or in such other name as is requested by an authorized representative ofDTC (and
any payment is made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
OHS \Vest::~60611460,3
A-3
IN WITNESS WHEREOF, this Note Participation has been dated the date of
initial delivery hereof. and has been executed by the manual signature of an authorized officer of
the Trustee on the following date:
Date:
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
Authorized Officer
OHS Wesl~l)i)611-lb(J.'
/\-4
FORM OF ASSIGNMENT
F or value received, the undersigned doe es) hereby selL assign and transfer unto
whose tax identIfication number is the
within Note Participation and dotes) hereby irrevocably constitute(s) and appoint(s)
attorney to transfer such Note Participation on the register of the
Trustee, with full power of substitution in the premises.
Dated:
SIGNATURE GUARANTEED BY:
Note:
The signature(s) to this Assignment must correspond with the name(s) as written
on the face of the within Note Participation in every particular, without alteration
or enlargement or any change whatsoever, and the signature(s) must be
guaranteed by an eligible guarantor institution.
OHS Wcst261l61 ]4603
/\-5
EXHIBIT B
FORM OF REQUISITION FROM PROCEEDS SUBACCOU:\'T
OF THE ACQUISITION FUND
To:
Wells Fargo Bank, National Association, as Trustee
From:
Dated Date:
Re: California Communities Tax and Revenue Anticipation Note Program (the "Program")
Requisition No. _
Capitalized terms will herein have the meanings assigned to such terms in the
Trust Agreement, dated as of July 1, 2009, among the California Statewide Communities
Development Authority, Wells Fargo Bank, National Association and the Local Agency.
The undersigned, on behalf of the (the "Local Agency"), hereby
requests payment, from the Proceeds Subaccount established pursuant to the Program, the
amount of S; [by wire/checklACH (circle one)] for purposes for which the Local
Agency is authorized to expend moneys. If the payment is by wire or ACH, please fill in the
following information:
~ame, Address and Phone Number of Bank:
ABA#:
Account No.:
The undersigned hereby certifies as follows:
The amount requisitioned hereby is for a purpose for which the Local
Agency is authorized to expend funds from the general fund of the Local Agency.
1. As of the date hereof, no event has occurred and is continuing which
constitutes an Event of Default under the Trust Agreement would constitute an Event of
Default but for the requirement that notice be given, or time elapse, or both.
OHS WesI2(lO() 1] .l6().3
B-1
2. The information contained herein is true and correct as of the date of this
Requisition.
Authorized Local Agency
Representative
(JHS West:~h(J611~()()3
B-2
EXHIBIT C
DEPOSIT NOTICE
CALIFOR.c"lIA COMMUNITIES
Tax and Revenue Anticipation Note Program
Note Participations, Series 2009A-I
Name of Local Agency: [name of Local Agency]
Today's Date:
Please indicate form ofrepayment below. PLEASE CONFIRM RECEIPT OF FAX BY CALLING
CORPORATE TRUST
- voice
-fax
D I. WIRE TRANSFER: Please make Check Payable to
Reference: CSCDA TRANs Series 2009A-I
[name of Local Agency]
Send Check via overnight courier to:
Amount of Check:
$
Date Mailed:
Via (type of deliver):
D 2. WIRE TRANSFER
Please provide the following information no later than one day before the wire
Amount of Wire:
$
Date wire will be sent:
Name of Sending Bank:
(lHS West:16061146CU
D-I
Wiring Instruction are as follows:
ABA:
ACCOUNT:
Ref: CSCDA TRANs Series 2009A-I [name of Local Agency]
ATTN:
D 3. ACH TRANSFER: * Automatic Clearing House Transfer Instruction
Date of Transfer
Local Agency's Bank Name:
ABA:
Account Number:
Account Type (check one) lEI Checking
Account Name:
o Savings
Amount to Transfer:
Transfer Date:
[name of Local Agency]
$
Dated:
,200_
[Local Agency]
By:
Title:
Authorized Representative
*This type ofrepayment authorizes to automatically debit the Local Agency's
account via ACH and requires the Local Agency's authorized representative signature. The
transfer will be initiated by and the transfer amount will be
shown on the Local Agency's account on the following business day.
OHS \Vesl 26(Jlll 14(IOJ
D-2
Local Agency
,1'-": \\'cst2f,Oh114flQ 35-1-1
SCHEDULE I
PARTICIPATING LOCAL AGENCIES
Principal
Amount
Total Principal Amount
$[A-I PAR
AMOUNT]
SCHED ULE II
INITIAL DEPOSIT TO PROCEEDS SlJBACCOU'\'T
ATTRIBUTABLE TO EACH LOCAL AGENCY
Local Agency
Amount
Deposited in the
Proceeds Subaccount
Total
$[PROCEEDS FUND]
S-II-l
(Jll::-, \\ t:si2tlUld 1~()(j,3
SCHEDULE III
TERMS RELATING TO CREDIT INSTRUMENT
"Credit Agreement" means the Credit Agreement, dated as of July L 1009, by and
among the Local Agencies and the Credit Provider, as the same may be amended from time to
time.
"Credit Instrument" means the [irrevocable letter of credit] issued by the Credit
Provider insuring the payment when due of the first S of principal and interest
evidenced and represented by the Note Participations attributable to the first S of
payment defaults by the Local Agencies with respect to their Notes, as provided therein.
"Credit Provider" means
, or any successor thereto.
"'Principal Office of the Credit Provider" means the principal office of the Credit
Provider, which, for the initial Credit Provider, is located at
S-III-l
Ofj\ West:~(106] ]460_3
IN WITNESS WHEREOF, the Authority and each of the Local Agencies named
in Schedule 1 hereto have caused this Trust Agreement to be signed in their names by such
person as has been designated by their respective governing boards, and the Trustee, to evidence
its acceptance of the trust hereby created, has caused the Trust Agreement to be signed in the
name of the Trustee by an authorized officer of the Trustee, all as of the day and year first above
written.
CITY OF SAN BERNARDINO
By:
Authorized Local Agency Representative