HomeMy WebLinkAbout4.11 Exhibit B Trust Agreement •
Brown & Wood
Draft of 5/3/93
TRUST AGREEMENT
Dated as of June 1, 1993
by and among
•
FIRST INTERSTATE BANK OF CALIFORNIA,
as Trustee
and
DUBLIN INFORMATION, INC. ,
as Lessor
and the
CITY OF DUBLIN,
as Lessee
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1. 01 Definitions and Rules of Construction 2
SECTION 1 . 02 Authorization 12
ARTICLE II
THE CERTIFICATES OF PARTICIPATION
SECTION 2 . 01 Authorization 12
SECTION 2 . 02 Date 12
SECTION 2 . 03 Maturity; Interest Rates 13
SECTION 2 . 04 Registration; Interest 13
SECTION 2 . 05 Form of Certificates 14
SECTION 2 . 06 Execution 14
SECTION 2 . 07 Application of Proceeds 14
SECTION 2 . 08 Transfer and Exchange 15
SECTION 2 . 09 Certificates Mutilated, Lost, Destroyed
or Stolen 16
SECTION 2 . 10 Payment 17
SECTION 2 . 11 Execution of Documents and Proof of
Ownership 17
SECTION 2 . 12 Certificate Register 18
SECTION 2 . 13 Book-Entry System 18
SECTION 2 . 14 Destruction of Cancelled Certificates 22
ARTICLE III
DELIVERY COSTS FUND
SECTION 3 . 01 Establishment of Delivery Costs Fund 23
ARTICLE IV
PREPAYMENT OF CERTIFICATES
SECTION 4 . 01 Establishment of Prepayment Fund 23
SECTION 4 . 02 Prepayment From Net Proceeds 24
SECTION 4 . 03 Optional Prepayment 24
SECTION 4 . 04 Selection of Certificates for
Prepayment 24
SECTION 4 . 05 Notice of Prepayment 25
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SECTION 4 . 06 Partial Prepayment of Certificates 26
SECTION 4 . 07 Effect of Notice of Prepayment 26
SECTION 4 . 08 Surplus 27
ARTICLE V
LEASE PAYMENTS; LEASE PAYMENT FUND
SECTION 5 . 01 Security Provisions 27
SECTION 5 . 02 Establishment of Lease Payment Fund 28
SECTION 5 . 03 Deposits 28
SECTION 5 . 04 Application of Moneys 29
SECTION 5 . 05 Transfers of Investment Earnings to the
Rebate Fund 29
SECTION 5 . 06 Surplus 29
ARTICLE VI
RESERVE FUND
SECTION 6 . 01 Establishment of Reserve Fund 29
SECTION 6 . 02 Funding 30
SECTION 6 . 03 Transfers of Excess 32
SECTION 6 . 04 Application of Reserve Fund in Event of
Deficiency in Lease Payment Fund 32
SECTION 6 . 05 Transfer to Make All Lease Payments 32
ARTICLE VII
NET PROCEEDS FUND
SECTION 7 . 01 Establishment of Net Proceeds Fund;
Deposits 33
SECTION 7 . 02 Disbursements 33
SECTION 7 . 03 Cooperation 33
ARTICLE VIII
MONEYS IN FUNDS; INVESTMENT
SECTION 8 . 01 Held in Trust 34
SECTION 8 . 02 Investments Authorized 34
SECTION 8 . 03 Disposition of Investments 35
SECTION 8 . 04 Accounting 35
SECTION 8 . 05 Valuation and Disposition of Investments 35
SECTION 8 . 06 Commingling of Moneys in Funds 35
SECTION 8 . 07 Arbitrage Covenant 35
SECTION 8 . 08 Rebate Fund 36
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ARTICLE IX
THE TRUSTEE
SECTION 9 . 01 Appointment of Trustee 38
SECTION 9 . 02 Merger or Consolidation 40
SECTION 9 . 03 Protection of the Trustee 40
SECTION 9 . 04 Rights of the Trustee 42
SECTION 9 . 05 Standard of Care 42
SECTION 9 . 06 Compensation of the Trustee 42
SECTION 9 . 07 Indemnification of Trustee 43
ARTICLE X
MODIFICATION OR AMENDMENT OF
AGREEMENTS
SECTION 10 . 01 Amendments Permitted 44
SECTION 10 . 02 Procedure for Amendment with Written
Consent of the Owners 45
SECTION 10 . 03 Disqualified Certificates 46
SECTION 10 . 04 Effect of Supplemental Agreement 46
SECTION 10 . 05 Endorsement or Replacement of Certificates
Delivered After Amendments 47
SECTION 10 . 06 Amendatory Endorsement of Certificates 47
ARTICLE XI
COVENANTS; NOTICES
SECTION 11. 01 Compliance With and Enforcement of the
Lease 47
SECTION 11. 02 Payment of Taxes 48
SECTION 11. 03 Observance of Laws and Regulations 48
SECTION 11. 04 Prosecution and Defense of Suits 48
SECTION 11. 05 Lessee Budgets 48
SECTION 11. 06 Further Assurances 49
SECTION 11 . 07 Tax Covenants 49
ARTICLE XII
LIMITATION OF LIABILITY
SECTION 12 . 01 Limited Liability of the Lessee 49
SECTION 12 . 02 No Liability of the Lessee or Lessor
for Trustee Performance 49
SECTION 12 . 03 Limited Liability of Trustee 50
SECTION 12 . 04 Limitation of Rights to Parties and
Certificate Owners 50
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ARTICLE XIII
EVENTS OF DEFAULT AND REMEDIES OF
CERTIFICATE OWNERS
SECTION 13 . 01 Assignment of Rights 51
SECTION 13 . 02 Events of Default 51
SECTION 13 . 03 Application of Funds 51
SECTION 13 . 04 Institution of Legal Proceedings 52
SECTION 13 . 05 Non-Waiver 52
SECTION 13 . 06 Remedies Not Exclusive 53
SECTION 13 . 07 Power of Trustee to Control
Proceedings 53
SECTION 13 . 08 Limitation on Certificate Owners ' Right
to Sue 53
SECTION 13 . 09 Agreement to Pay Attorneys ' Fees and
Expenses 54
ARTICLE XIV
MISCELLANEOUS
SECTION 14 . 01. Defeasance 54
SECTION 14 . 02 Non-Presentment of Certificates 55
SECTION 14 . 03 Records 56
SECTION 14 . 04 Notices 56
SECTION 14 . 05 Governing Law 57
SECTION 14 . 06 Binding Effect; Successors 57
SECTION 14 . 07 Execution in Counterparts 57
SECTION 14 . 08 Headings 57
SECTION 14 . 09 Waiver of Notice 57
SECTION 14 . 10 Separability of Invalid Provisions 58
SECTION 14 . 11 CUSIP Numbers 58
SECTION 14 . 12 Payments due on a day other than a Business
day 58
Exhibit A - Form of Certificate of Participation A-1
Exhibit B - Form of Written Requisition B-1
Exhibit C - Guidelines for Compliance with Section 148(f)
of the Internal Revenue Code of 1986,
As Amended C-1
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TRUST AGREEMENT
THIS TRUST AGREEMENT, made and entered into as of this 1st
day of June, 1993 , by and among FIRST INTERSTATE BANK OF
CALIFORNIA, a banking corporation organized under the laws of
the State of California, as trustee (the "Trustee") , DUBLIN
INFORMATION, INC. , a nonprofit public benefit corporation duly
organized and existing under the laws of the State of
California, including without limitation Section 5110 et sea.
of the Corporations Code of the State of California, as lessor
under the Lease Agreement hereinafter referred to (the
"Lessor") , and the CITY OF DUBLIN, a municipal corporation duly
organized and existing under the laws of the State of
California, as lessee under said Lease Agreement (the "Lessee") ;
W I T N E S E T H
WHEREAS, in order to refinance the acquisition,
construction, remodeling and/or improvement of certain real
property and public facilities comprising the Lessee' s Civic
Center (collectively, the "Project" ) the Lessee and the Lessor
have previously entered into an Amended and Restated Lease
Agreement, dated as of March 1, 1988 (the "Prior Lease") ,
whereby the Lessor agreed to lease the Project and the site
thereof (the "Site" ) to the Lessee and the Lessee has agreed to
lease the Project and the Site from the Lessor; and
WHEREAS, for the purpose of obtaining the moneys required
to be deposited by it with the Trustee for refinancing the
Project, the Lessee has previously caused to be executed and
delivered its 1988 Refunding Certificates of Participation
(Civic Center Project) in the original aggregate principal
amount of $17,230, 000 (the "Refunded Certificates" ) , each
evidencing the proportionate interests in lease payments made
by the Lessee under the Prior Lease; and
WHEREAS, the Lessee has determined that it is in the best
interests of the Lessee, at this time to provide for the
refinancing of the Project by continuing to lease the Project
and the Site pursuant to that certain Lease Agreement, dated as
of June 1, 1993 (the "Lease") , by and between the Lessor and
the Lessee, amending and restating in its entirety the Prior
Lease; and
WHEREAS, for the purposes of providing the moneys necessary
to be deposited with the Trustee by the Lessee for such
refinancing, the Lessor proposes to assign and transfer certain
of its rights under the Lease to the Trustee, and in
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consideration of such assignment and the execution of this
Trust Agreement, the Trustee has agreed to execute and deliver
Certificates of Participation (1993 Civic Center Refunding
Project) (the "Certificates") ; and
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions and Rules of Construction.
Unless the context otherwise requires., the terms defined in
this Section shall, for all purposes of this Trust Agreement,
have the meanings herein specified. Unless the context
otherwise indicates, words importing the singular number shall
include the plural number and vice versa. The terms "hereby" ,
"hereof" , "hereto" , "herein" , "hereunder" and any similar
terms, as used in this Trust Agreement, refer to this Trust
Agreement as a whole.
"Additional Payments" means Additional Payments as defined
in Section 4 . 11 of the Lease.
"Assignment Agreement" means the Assignment Agreement,
dated as of June 1, 1993, by and between the Trustee and the
Lessor, and any duly authorized and executed amendments thereto.
"Business Day" means any day of the year on which banks in
New York, New York or San Francisco, California, are not
authorized or obligated by law or executive order to remain
closed and on which the New York Stock Exchange is not closed.
"Certificate" or "Certificates" means the $
aggregate principal amount of Certificates of Participation
(1993 Civic Center Refunding Project) , to be executed and
delivered hereto.
"Certificate Payment Date" means February 1 and August 1 of
each year commencing February 1, 1994 with respect to the
interest payments evidenced by the Certificates and February 1
of each year commencing February 1, 1994 with respect to the
principal payments evidenced by the Certificates .
"Closing Date" means the date on which the Certificates,
duly executed by the Trustee, are delivered to the Original
Purchaser thereof.
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"Code" means the Internal Revenue Code of 1986, as amended,
where all citations herein shall be deemed to refer to
corresponding sections in such Code.
"Delivery Costs" means and further includes all items of
expense directly or indirectly payable by or reimbursable to
the Lessee or the Lessor relating to the refinancing of the
Project from the proceeds of the Certificates, including but
not limited to filing and recording costs, settlement costs,
printing costs, word processing costs, reproduction and binding
costs, initial fees and charges of the Trustee, bond insurance
premiums, legal fees and charges, financing and other profes-
sional consultant fees, costs of rating agencies and costs of
providing information to such rating agencies, fees for
execution, transportation and safekeeping of the Certificates
and all other charges and fees in connection with the foregoing.
"Depository" means the securities depository acting as
Depository pursuant to Section 2. 13 hereof.
"DTC" means The Depository Trust Company, New York, New
York, a limited purpose trust company organized under the laws
of the State of New York in its capacity as securities
depository for the Certificates.
"Delivery Costs Fund" shall mean the fund by that name
established and held by the Trustee pursuant to Article III
hereof.
"Escrow Agreement" means the Escrow Agreement, dated as of
June 1, 1993, by and between the Lessee and First Trust of
California, National Association, as Escrow Agent.
"Event of Default" means an event of default under the
Lease, as defined in Section 9 . 1 thereof.
"Federal Securities" means any of the following which are
noncallable (solely for the purpose of Section 14 .01 hereof)
legal investments under the laws of the State of California for
the moneys proposed to be invested therein:
(a) U.S. Treasury Certificates, Notes and Bonds (including
State and Local Government Series -- "SLGs") ;
(b) direct obligations of the Treasury which have been
stripped by the Treasury itself;
(c) "CATS" and "TIGRS" ;
(d) obligations issued by the following agencies which are
backed by the full faith and credit of the U.S. :
(i) U.S. Export-Import Bank direct obligations
or fully guaranteed certificates of
beneficial ownership,
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(ii) Farmers Home Administration certificates of
beneficial ownership;
(iii) Federal Financing Bank,
(iv) General Services Administration
participation certificates,
(v) U. S. Maritime Administration guaranteed
Title XI financing,
(vi) New Communities Debentures, U. S. government
guaranteed debentures,
(vii) U. S. Public Housing notes and bonds, U. S.
government guaranteed public housing notes
and bonds, and
(viii) U. S. Department of Housing and Urban
Development project notes and local
authority bonds;
(e) obligations of the Resolution Funding Corporation
which represent only the interest portion of such
obligations and which have been stripped by the
Treasury itself (the interest component of REFCORP
strips) ; and
(f) "prerefunded" municipal bonds which are rated "Aaa" by
Moody' s or "AAA" by S&P. If the issue is only rated
by S&P (i .e. , there is no Moody' s rating) , then the
prerefunded bonds must have been prerefunded with
cash, direct U. S. or U. S. guaranteed obligations, or
AAA-rated prerefunded municipals that satisfy this
condition.
"Fiscal Year" means the fiscal year of the Lessee
commencing July 1 and ending June 30 of each year .
"Independent Counsel" means an attorney duly admitted to
the practice of law before the highest court of the state in
which such attorney maintains an office and who is not an
employee of the Lessor, the Trustee or the Lessee.
"Lease" means the Lease Agreement, dated June 1, 1993 , by
and between the -Lessee and the Lessor, constituting an
amendment and restatement of the Prior Lease, and any duly
authorized and ,executed amendments thereto.
"Lease Payment" means any payment required to be paid by
the Lessee to the Lessor pursuant to Section 4 .4 of the Lease.
"Lease Payment Date" means the Lease Payment Date defined
in Section 4 .4 (a) of the Lease .
"Lease Payment Fund" means the fund by that name
established and held by the Trustee pursuant to Article V -
hereof .
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"Lessee" means the City of Dublin, a municipal corporation
organized and existing under the laws of the State.
"Lessee Representative" means the City Manager, Finance
Director or Assistant City Manager of the Lessee or their
respective designees or any other person duly authorized by the
Lessee to act on its behalf with respect to this Trust
Agreement or the Lease.
"Lessor" means Dublin Information, Inc. , a nonprofit public
benefit, corporation organized under the laws of the State, its
successors and assigns .
"Lessor Representative" means the Chairman, Vice Chairman
or Chief Financial Officer of the Lessor, or any person
authorized to act on behalf of the Lessor under or with respect
to this Trust Agreement or the Lease.
"Letter of Representations" means the letter of the Lessee
and the Trustee delivered to and accepted by the Depository on
or prior to delivery of the Certificates as book-entry
certificates setting forth the basis on which the Depository
serves as depository for such book-entry certificates, as
originally executed or as it may be supplemented or revised or
replaced by a letter from the Lessee and the Trustee delivered
to and accepted by the Depository.
"Moody' s" means Moody' s Investors Service.
"Net Proceeds" means any proceeds of insurance, performance
bonds or taking by eminent domain or condemnation paid with
respect to the Project remaining ,after payment therefrom of any
expenses (including attorneys ' fees) incurred in the collection
thereof .
"Net Proceeds Fund" means the fund by that name established
and held by the Trustee pursuant to Article VII hereof .
"Nominee" means the nominee of the Depository, which may be
the Depository, as determined from time to time pursuant to
Section 2 . 13 hereof .
"Original Purchaser" means the first purchasers of the
Certificates upon their delivery by the Trustee on the Closing
Date, as original purchaser of the Certificates .
"Outstanding" , when used as of any particular time with
respect to Certificates, means (subject to the provisions of
Section 10 . 03 hereof) all Certificates theretofore executed and
delivered by the Trustee under this Trust Agreement except :
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(1) Certificates theretofore cancelled by the Trustee
or surrendered to the Trustee for cancellation;
(2) Certificates for the payment or prepayment of
which funds or Federal Securities, together with interest
earned thereon, in the necessary amount shall have
theretofore been deposited with the Trustee (whether upon
or prior to the maturity or prepayment date of such
Certificates) , provided that, if such Certificates are to
be prepaid prior to maturity, notice of such prepayment
shall have been given as provided in Section 4 . 06 hereof or
provision satisfactory to the Trustee shall have been made
for the giving of such notice; and
(3) Certificates in lieu of or in exchange for which
other Certificates shall have been executed and delivered
by the Trustee pursuant to Section 2 . 08 hereof and 2 . 09
hereof .
"Owner" or "Certificate Owner" or "Owner of a Certificate" ,
or any similar term, when used with respect to a Certificate
means the person in whose name such Certificate is registered
on the registration books maintained by the Trustee.
"Participants" means those broker-dealers, banks and other
financial institutions from time to time for which the
Depository holds book-entry certificates as securities
depository.
"Permitted Investments" means any of the following which at
the time of investment are legal investments under the laws of
the State for the moneys proposed to be invested therein.
1 . Direct obligations of the United States of
America (including obligations issued or held in book-entry
form on the 'books of the Department of the Treasury) or
obligations the principal of and interest on which are
unconditionally guaranteed by the United States of America .
2 . Bonds, debentures, notes or other evidence of
indebtedness issued or guaranteed by any of the following
federal agencies and provided such obligations are backed
by the full faith and credit of the United States of
America (stripped securities are only permitted if they
have been stripped by the agency itself) :
(a) U.S. Export-Import Bank (Eximbank)
Direct obligations or fully guaranteed
certificates of beneficial ownership
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(b) Farmers Home Administration (FHA)
Certificates of beneficial ownership
(c) Federal Financing Bank
(d) Federal Housing Administration Debentures
(FHA)
(e) General Services Administration
Participation certificates
(f) Government National Mortgage Association
(GNMA or Ginnie Mae)
GNMA - guaranteed mortgage-backed bonds
GNMA - guaranteed pass-through obligations
(g) U.S. Maritime Administration
Guaranteed Title XI financing
(h) U.S. Department of Housing and Urban
Development (HUD)
Project Notes
Local Authority Bonds
New Communities Debentures - U. S. Government
guaranteed debentures
U.S. Public Housing Notes and Bonds - U.S .
government guaranteed public housing notes
and bonds
3 . Bonds, debentures, notes or other evidence of
indebtedness issued or guaranteed by any of the following
non-full faith and credit U. S . government agencies
(stripped securities are only permitted if they have been
stripped by the agency itself) :
(a) Federal Home Loan Bank System
Senior debt obligations
(b) Federal Home Loan Mortgage Corporation
(FHLMC or Freddie Mac)
Participation certificates
Senior debt obligations
(c) Federal National Mortgage Association (FNMA
or Fannie Mae)
Mortgage-backed securities and senior debt
obligations (excluded are stripped mortgage
securities which are valued greater than par
on the portion of unpaid principal)
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(d) Student Loan Marketing Association (SLMA or
Sallie Mae)
Senior debt obligations
(e) Resolution Funding Corp. (REFCORP)
Only the interest component of REFCORP
strips which have been stripped by request
to the Federal Reserve Bank of New York in
book entry form are acceptable
(f) Federal Land Banks or Federal Intermediate
Credit Banks
Participation certificates and senior debt
obligation
(g) Central Bank for Cooperatives and Banks for
Cooperatives
Debentures and consolidated debentures
4 . Money market funds registered under the Federal
Investment Company Act of 1940, whose shares are registered
under the Federal Securities Act of 1933 , and having
ratings by Standard & Poor ' s Corporation of AAAm-G; AAAm;
or AAm and by Moody' s Investors Service of [to come] ,
including [the Trustee ' s sweep account] .
5 . Certificates of deposit secured at all times by
collateral described in (1) and/or (2) above. CD' s must
have a one year or less maturity. Such certificates must
be issued by commercial banks including the Trustee,
savings and loan associations or mutual savings banks whose
short term obligations are rated "A" or better by Standard
& Poor ' s Corporation and Moody' s Investors Service. Should
the institution not have an adequate Standard & Poor ' s
Corporation and Moody' s Investors Service rating, then its
CD would be acceptable if the following collateral levels
are maintained:
A) if valued daily - 102%
B) if valued weekly - 103%
C) if valued monthly 106%
D) if valued quarterly - 106%
The collateral must be held by a third party and the
Certificateholders must have a perfected first security
interest in the collateral .
6 . Certificates of deposit, savings accounts,
deposit accounts or money market deposits which are fully
insured by the FDIC or FSLIC.
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7. Investment Agreements, including GIC' s, entered
into with financial institutions whose long-term debt
obligations are rated in one of the two highest rating
categories of Standard & Poor ' s Corporation and Moody' s
Investors Service.
8 . Commercial paper rated "Prime - 1" by Moody' s
Investors Service and "A-1" or better by Standard & Poor ' s
Corporation.
9 . Bonds or notes issued by any state or munici-
pality which are rated by Moody' s Investors Service and
Standard & Poor ' s Corporation in one of the two highest
long-term rating categories assigned by such agencies .
10 . Federal funds or bankers acceptances with a
maximum term of one year of any bank which has an .
unsecured, uninsured and unguaranteed obligation rating of
"Prime - 1" or "A3" or better by Moody' s Investors Service
and "Al" or "A" or better by Standard & Poor ' s Corporation.
11 . Repurchase Agreements which provide for the
transfer of securities from a dealer bank or securities
firm (seller/borrower) to the Lessee (buyer/lender) and the
transfer of cash from the Lessee to the dealer bank or
securities firm with an agreement that the dealer bank or
securities firm will repay the cash plus a yield to the
Lessee in exchange for the securities at a specified date.
Repurchase Agreements must satisfy the following .
criteria .
a . Repurchase Agreements must be between the
Lessee and a dealer bank or securities firm
(i) Primary dealers on the Federal Reserve
reporting dealer list which fall. under the
jurisdiction of the SIPC and which are rated "A"
or better by Standard & Poor ' s Corporation and
Moody' s Investors Service, or
(ii) Banks rated "A" or above by Standard &
Poor ' s Corporation and Moody' s Investors Service.
b. The written Repurchase Agreement contract
must include the following:
(i). Securities which are acceptable for
transfer are:
(a) Direct U.S. governments
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c
(b) Federal agencies backed by the full
faith and credit of the U.S. government (and
FNMA & FHLMC)
(ii) The term of the Repurchase Agreement
may be up to 30 days
(iii) The collateral must be delivered to the
Lessee, Trustee (if Trustee is not supplying the
collateral) or third party acting as agent for
the Trustee (if the Trustee is supplying the
collateral) before/simultaneous with payment
(perfection by possession of certificated
securities) .
(iv) The Trustee has a perfected first
priority security interest in the collateral .
(v) Collateral is free and clear of
third-party liens and in the case of SIPC broker
was not acquired pursuant to a repo or reverse
repo .
(vi) Failure to maintain the requisite
collateral percentage, after a two day
restoration period, will require the Trustee to
liquidate collateral .
(vii) Valuation of Collateral
(1) The securities must be valued
weekly, marked-to-market at current market
price plus accrued interest
(a) The value of collateral must
be equal to 104% of the amount of cash
transferred by the Lessee to the dealer
bank or security firm under the
Repurchase Agreement plus accrued
interest . If the value of securities
held. as collateral slips below 104% of
the value of the cash transferred by
the Lessee, then additional cash and/or
acceptable securities must be
transferred. If, however, the
securities used as collateral are FNMA
or FHLMC, then the value of collateral
must equal 105%.
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c. Legal opinion which must be delivered to the
Lessee:
(i) Repurchase Agreement meets guidelines
under state law for legal investment of public
funds .
12 . Pre-refunded municipal bonds rated "Aaa" by
Moody' s Investors Service and "AAA" by Standard & Poor ' s
Corporation. If, however, the issue is only rated by
Standard & Poor ' s Corporation (i .e. , there is no Moody' s
Investors Service rating) , then the pre-refunded bonds must
have been pre-refunded with cash: direct U.S. or U.S.
guaranteed obligations, or AAA rated pre-refunded
municipals to satisfy this condition.
13 . The Local Agency Investment Fund referred to in
Section 16429 . 1 of the California Government Code to the
extent held in the name and to the credit of the Trustee.
"Prepayment"means any payment made by the Lessee pursuant
to Article X of the Lease as a prepayment of Lease Payments .
"Prepayment Fund" means the fund by that name established
and held by the Trustee pursuant to Article IV hereof .
"Principal Office" means the principal office of the
Trustee in San Francisco, California or the principal office of
any successor trustee pursuant hereto .
"Prior Lease" means the Lease Agreement, dated as of
March 1, 1988, by and between the Lessee and the Lessor .
"Project" means the Project, as defined in the Lease.
"Record Date" means the close of business on the fifteenth
day of the month preceding each Certificate Payment Date,
whether or not such fifteenth day is a Business Day.
"Refunded Certificates" means the $17, 230, 000 original
principal amount of 1988 Refunding Certificates of
Participation (Civic Center Project) issued pursuant to the
Refunded Certificates Trust Agreement .
"Refunded Certificates Trust Agreement" means that certain
Trust Agreement, dated as of March 1, 1988, by and among the
Trustee, the Lessor and the Lessee.
"Requisition" means the form of written requisition
substantially in the form attached hereto as Exhibit B.
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"Reserve Fund" means the fund by that name established and
held by the Trustee pursuant to Article VI hereof .
"Reserve Requirement" means, as of any calculation date,
the lesser of (1) the maximum aggregate annual Lease Payments
payable under the Lease, (2)125% of the average annual
aggregate Lease Payments payable under the Lease, and (3) 10%
of the net proceeds derived from the sale of the Certificates ,
all as computed by the Lessee.
"S&P" means Standard & Poor ' s Corporation.
"Special Counsel" means Brown & Wood or any other attorney
or firm of attorneys of nationally recognized standing in
matters pertaining to the tax-exempt status of interest on
obligations issued by states and their political subdivisions
and acceptable to the Lessee and the Trustee.
"State" means the State of California .
"Term" means the time during which the Lease is in effect,
as provided in Section 4 .2 of the Lease.
"Trustee" means First Interstate Bank of California, San
Francisco, California, and any successor trustee duly appointed
hereunder.
"Trust Agreement" or "Agreement" means this Trust
Agreement, together with any amendments hereof or supplements
hereto permitted to be made hereunder.
SECTION 1 . 02 Authorization. Each of the parties hereby
represents and warrants that it has full legal authority and is
duly empowered to enter into this Trust Agreement, and has
taken all actions necessary to authorize the execution of this.
Trust Agreement by the officers and persons signing it .
ARTICLE II
THE CERTIFICATES OF PARTICIPATION
SECTION 2 . 01 Authorization. Upon written request of the
Lessee Representative, the Trustee will prepare, execute and
deliver to the Original Purchaser, Certificates in an aggregate
principal amount of $ evidencing proportionate
ownership interests in the Lease Payments and the Prepayments .
SECTION 2 . 02 Date. Each Certificate shall be dated
June 1, 1993 , and interest with respect thereto shall be
payable from the Certificate Payment Date next preceding the
date of execution thereof, unless :
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(i) it is executed as of a Certificate Payment Date,
in which event interest with respect thereto shall be
payable from the date thereof; or
(ii) it is executed after a Record Date and before the
following Certificate Payment Date, in which event interest
with respect thereto shall be payable from such following
Certificate Payment Date, or
(iii) it is executed prior to the close of business on
January 15, 1994, in which event interest with respect
thereto shall be payable from June 1, 1993 ;
provided, however, that if, as of the date of any Certificate,
interest has not been paid when due with respect to any
Outstanding Certificate, interest with respect to such
Certificate shall be payable from the Certificate Payment Date
to which interest has previously been paid or made available
for payment with respect to the Outstanding Certificates .
SECTION 2 . 03 Maturity; Interest Rates . The Certificates
shall mature on February 1 of the following years and shall
represent interest at the following rates :
Maturity Principal Interest Maturity Principal Interest
(February 1) Amount Rate (February 1) Amoynt Rate
$ . % $ .
SECTION 2 . 04 Registration; Interest. The Certificates
shall be delivered in the form of fully registered
Certificates, without coupons, in denominations of $5, 000 or
any integral multiple thereof . The Certificates shall be
numbered from "R-1" upwards in consecutive numerical order .
Interest with respect to the Certificates shall be payable
semiannually on February 1 and August 1 of each year,
commencing February 1, 1994 , to the date of maturity or
prepayment, whichever is earlier . Said interest shall
represent the portion of Lease Payments designated as interest
and coming due during the six-month period preceding each
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Certificate Payment Date with respect to the Certificates
computed on the basis of a 360-day year of twelve 30-day
months . The proportionate share of the portion of Lease
Payments designated as interest with respect to any Certificate
shall be computed by multiplying the portion of Lease Payments
designated as principal with respect to such Certificate by the
rate of interest applicable to such Certificate.
SECTION 2 . 05 Form of Certificates . The Certificates and
the assignment to appear thereon shall be substantially in the
respective forms set forth in Exhibit A attached hereto and by
this reference incorporated herein. Pending the preparation of
definitive Certificates the Certificates may be delivered in
temporary form exchangeable for definitive Certificates when
ready for delivery. If the Trustee delivers temporary
Certificates, it shall execute and deliver definitive
Certificates in an equal aggregate principal amount, when
available, without additional charge, and thereupon the
temporary Certificates shall be surrendered to the Trustee at
its Principal Office. Until so exchanged, the temporary
Certificates shall be entitled to the same benefits under this
Trust Agreement as definitive Certificates .
SECTION 2 . 06 Execution. The Certificates shall be
executed by and in the name of the Trustee by the manual
signature of any authorized signatory of the Trustee. The
Trustee shall insert the date of execution of each Certificate
in the place provided thereon.
If any officer or signatory whose signature appears on any
Certificate ceases to be such officer or signatory before the
date of delivery of said Certificate, such signature shall
nevertheless be as effective as if the officer or signatory had
remained in office until such date. Any Certificate may be
executed on behalf of the Trustee by such person as at the
actual date of the execution of such Certificate shall be the
proper signatory of the Trustee.
SECTION 2 . 07 Application of Proceeds . The proceeds
received by the Trustee from the sale of the Certificates,
together with such other moneys as are transferred to the
Trustee from amounts held under the Refunded Certificates Trust
Agreement, shall forthwith be set aside by the Trustee and
deposited and transferred in the following respective funds and
accounts : -
(a) Lease Payment Fund: The Trustee shall deposit in
the Lease Payment , Fund $ representing the accrued
interest received from the Original Purchaser .
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(b) Reserve Fund: The Trustee shall deposit in the
Reserve Fund an amount equal to $ representing
the initial Reserve Requirement, as set forth in a
Certificate of the Lessee.
(c) Delivery Costs Fund: The Trustee shall deposit
in the Delivery Costs Fund an amount equal to $
(d) Escrow Fund: The Trustee shall transfer to the
Escrow Agent for deposit in the Escrow Fund established
under the Escrow Agreement the sum of $ , being
the amount necessary to defease the Prior Certificates , as
set forth in a certificate of the Lessee.
To the extent Trustee deems it necessary for its records to
temporarily deposit into a temporary account established by the
Trustee proceeds of the Certificates received by it for
transfer pursuant to (d) above, the Trustee may in its
discretion create such temporary account and make such deposit
so long as the transfers referred to in (d) above can be made
on the same day the Trustee receives the proceeds from the sale
of the Certificates .
SECTION 2 . 08 Transfer and Exchange.
(a) Transfer of Certificates . Any Certificate may, in
accordance with its terms, be transferred upon the books
required to be kept pursuant to the provisions of Section 2 . 12
by the person in whose name it is registered, in person or by
his duly authorized attorney, upon surrender of such
Certificate for cancellation at the Principal Office
accompanied by delivery of a written instrument of transfer in
a form approved by the Trustee, duly executed. The Trustee may
require the payment by the Certificate Owner requesting such
transfer of any tax or other governmental charge required to be
paid with respect to such transfer . Whenever 'any Certificate
or Certificates shall be surrendered for transfer, the Trustee
shall execute and deliver a new Certificate or Certificates of
the same maturity and interest rate, for like aggregate
principal amount.
(b) Exchange of Certificates . Certificates may be
exchanged at the Principal Office for a like aggregate
principal amount of Certificates of other authorized
denominations of the same maturity and interest rate. The
Trustee may require the payment by the Certificate Owner
requesting such exchange of any tax or other governmental
charge required to be paid with respect to such exchange. All
Certificates surrendered pursuant to the provisions of this
Section shall be cancelled by the Trustee and shall not be
redelivered.
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(c) Time for Transfer or Exchange. The Trustee shall not
be obligated to transfer or exchange any Certificate after a
Record Date and before the following Payment Date, or during
the period established by the Trustee for selection of
Certificates for prepayment or any Certificate selected for
prepayment .
(d) Additional Certificates . The cost of printing any new
certificates and any services rendered or any other expenses
incurred by the Trustee in connection with any exchange or
transfer provided for in this Section 2 . 08 shall be paid by the
Lessee.
SECTION 2 . 09 Certificates Mutilated, Lost, Destroyed or
Stolen. If any Certificate shall become mutilated, the
Trustee, at the expense of the Owner of said Certificate, shall
execute and deliver a new Certificate of like tenor and
maturity in exchange and substitution for the Certificate so
mutilated, but only upon surrender to the Trustee of the
Certificate so mutilated. Every mutilated Certificate so
surrendered to the Trustee shall be cancelled by it and
redelivered to, or upon the order of, the Lessee pursuant to
Section 2 . 14 hereof . If any Certificate shall be lost,
destroyed or stolen, evidence of such loss, destruction or
theft may be submitted to the Trustee, and, if such evidence is
satisfactory to the Trustee and the Lessee and, if an
indemnity, satisfactory to the. Trustee and the Lessee
indemnifying the Trustee, the Lessor and the Lessee, shall be
given, the Trustee, at the expense of the Certificate Owner,
shall execute and deliver a new Certificate of like tenor and
maturity and numbered as the Trustee shall determine in lieu of
and in substitution for the Certificate so lost, destroyed or
stolen. The Trustee may require payment of an appropriate fee
for each new Certificate delivered under this Section and of
the expenses which may be incurred by the Trustee in carrying
out the duties under this Section. Any Certificate executed
under the provisions of this Section in lieu of any Certificate
alleged to be lost, destroyed or stolen shall be equally and
proportionately entitled to the benefits of this Trust
Agreement with all other Certificates secured by this Trust
Agreement . The Trustee shall not be required to treat both the
original Certificate and any duplicate Certificate as being
Outstanding for the purpose of determining the principal amount
of Certificates which may be executed and delivered hereunder
or for the purpose of determining any percentage of
Certificates Outstanding hereunder, but both the original and
duplicate Certificate shall be treated as one and the same .
Notwithstanding any other provision of this Section, in lieu of
delivering a new Certificate in place of one which has been
mutilated, lost, destroyed or stolen, and which has matured, or
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84420001/4
has been called for redemption, the Trustee may make payment
with respect to such Certificate.
SECTION 2 . 10 Payment . Payment of interest with respect to
any Certificate on any Certificate Payment Date or prepayment
date shall be made to the person appearing on the registration
books of the Trustee as the Owner thereof as of the Record Date
immediately preceding such Certificate Payment Date or prepay-
ment date, as the case may be, such interest to be paid by
check mailed to such Owner on the Certificate Payment Date at
his address as it appears on such registration books or at such
other address as he may have filed with the Trustee for that
purpose. Interest with respect to any Certificates may, at the
option of any Owner of Certificates in an aggregate principal
amount of $1, 000, 000 or more evidenced by the written request
of such Owner to the Trustee submitted to the Trustee by the
Record Date, be paid to such Owner by wire transfer to the bank
and account number on file with the Trustee as of the Record
Date (such account to be in the United States of America) .
Payments of defaulted interest shall be paid by check or draft
of the Trustee mailed to the registered Owners as of a special
record date to be fixed by the Trustee in its sole discretion,
notice of which shall be given to the Owners not less than ten
days prior to such special record date. The principal payable
upon maturity or prepayment with respect to the Certificates
shall be payable upon surrender at the Principal Office. Said
amounts shall be payable in lawful money of the United States
of America . The Trustee is hereby . authorized to pay or prepay
the Certificates when duly presented for payment at maturity or
on prepayment, or on purchase by the Trustee prior to maturity,
and to cancel all Certificates upon payment thereof .
SECTION 2 . 11 Execution of Documents and Proof of
Ownership. Any request, direction, consent, revocation of
consent, or other instrument in writing required or permitted
by this Trust Agreement to be signed or executed by Certificate
Owners may be in any number of concurrent instruments of
similar tenor, and may be signed or executed by such Owners in
person or by their attorneys or agents appointed by an
instrument in writing for that purpose, or by any bank, trust
company or other depository for such Certificates . Proof of
the execution of any such instrument, or of any instrument
appointing any such attorney or agent, and of the ownership of
Certificates shall be sufficient for any purpose of this Trust
Agreement (except as otherwise herein provided) , if made in the .
following manner:
(a) The fact and date of the execution by any Owner
or his attorney or agent of any such instrument and of any
instrument appointing any such attorney or agent, may be
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proved by a certificate, which need not be acknowledged or
verified, of an officer of any bank or trust company
located within the United States of America, or of any
notary public, or other officer authorized to take
acknowledgments of deeds to be recorded in such
jurisdictions, that the persons signing such instruments
acknowledged before him the execution thereof . Where any
such instrument is executed by an officer of a corporation
or association or a member of a partnership on behalf of
such corporation, association or partnership, such
certificate shall also constitute sufficient proof of his
authority.
(b) The fact of the ownership of Certificates by any
person, the amount and numbers of such Certificates and the
date of execution shall be proved by the registration books
maintained pursuant to Section 2 . 12 .
Nothing contained in this Article II shall be construed as
limiting the Trustee to such proof, it being intended that the
Trustee may accept any other evidence of the matters herein
stated which the Trustee may deem sufficient . Any request or
consent of the Owner of any Certificate shall bind every future
Owner of the same Certificate in respect of anything done or to
be done by the Trustee in pursuance of such request or consent .
SECTION 2 . 12 Certificate Register. The Trustee will keep
or cause to be kept at its Principal Office sufficient books
for the registration and transfer of the Certificates which
shall, during normal working hours, be open to inspection by
the Lessee and the Lessor; and, upon presentation for such
purpose, the Trustee shall, under such reasonable regulations
as it may prescribe, register or transfer or cause to be
registered or transferred, on said books, Certificates as
hereinbefor.e provided. The Lessee, the Lessor and the Trustee
shall be entitled to treat the registered owner of a
Certificate as the absolute owner thereof for all purposes,
whether or not a Certificate shall be overdue, and the Lessee,
the Lessor and the Trustee shall not be affected by any notice
to the contrary.
SECTION 2 . 13 Book-Entry System
(a) Election of Book-Entry System. Prior to the execution
and ,delivery of the Certificates , the Lessee may provide that
such Certificates shall be initially executed and delivered as
book-entry Certificates . If the Lessee shall elect to deliver
any Certificates in book-entry, then the Lessee shall cause the
delivery of a separate single fully registered certificate
(which may be typewritten) for each maturity date of such
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Certificates in an authorized denomination corresponding to
that total principal amount of the Certificates designated to
mature on such date. Upon initial execution and delivery, the
ownership of each such Certificate shall be registered in the
certificate register in the name of the Nominee, as nominee of
the Depository and ownership of the Certificates, or any
portion thereof may not thereafter be transferred except as
provided in Section 2 :13 (e) .
With respect to book-entry Certificates, the Lessee and the
Trustee shall have no responsibility or obligation to any
Participant or to any person on behalf of which such a
Participant holds an interest in such book-entry Certificates .
Without limiting the immediately preceding sentence, the Lessee
and the Trustee shall have no responsibility or obligation with
respect to (i) the accuracy of the records of the Depository,
the Nominee, or any Participant with respect to any ownership
interest in book-entry Certificates, (ii) the delivery to any
Participant or any other person, other than an Owner as shown
in the Certificate register, of any notice with respect to
book-entry Certificates, including any notice of prepayment,
(iii) the selection by the Depository and its Participants of
the beneficial interests in book-entry Certificates to be
prepaid in the event the Lessee prepays the Certificates in
part, or (iv) the payment by the Depository or any Participant
or any other person, of any amount with respect to principal,
premium, if any, or interest evidenced and represented by
book-entry Certificates . The Lessee and the Trustee may treat
and consider the person in whose name each book-entry
Certificate is registered in the Certificate register as the
absolute Owner of such Book-Entry Certificate for the purpose
of payment of principal, premium and interest with respect to
such Certificate, for the purpose of giving notices of
prepayment and other matters with respect to such Certificate,
for the purpose of registering transfers with respect to such
Certificate, and for all other purposes whatsoever. The
Trustee shall pay all principal, premium, if any, and interest
evidenced and represented by the Certificates only to or upon
the order of the respective Owner, as shown in the Certificate
register, or his respective attorney duly authorized in
writing, and all such payments shall be valid and effective to
fully satisfy and discharge the Lessee' s obligations with
respect to payment of principal of, premium, if any, and
interest evidenced and represented by the Certificates to the
extent of the sum or sums so paid. No person other than an
Owner, as shown in the Certificate register, shall receive a
Certificate evidencing the obligation to make payments of
principal , premium, if any, and interest evidenced and
represented by the Certificates . Upon delivery by the
Depository to the Owner and the Trustee, of written notice to
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the effect that. the Depository has determined to substitute a
new nominee in place of the Nominee, and subject to the
provisions herein with respect to Record Dates, the word
Nominee in this Trust Agreement shall refer to such nominee' of
the Depository.
(b) Delivery of Letter of Representations . In order to
qualify the book-entry Certificates for the Depository' s
book-entry system, the Lessee and the Trustee shall execute and
deliver to the Depository a Letter of Representations . The
execution and delivery of a Letter of Representations shall not
in any way impose upon the Lessee or the Trustee any obligation
whatsoever with respect to persons having interests in such
book-entry Certificates other than the Owners, as shown on the
Certificate register . In addition to the execution and
delivery of a Letter of Representations, the Lessee and the
Trustee shall take such other actions , not inconsistent with
this Trust Agreement, as are reasonably necessary to qualify
Book-Entry Certificates for the Depository' s book-entry program.
(c) Selection of Depository. In the event (i) the
Depository determines not to continue to act as securities
depository for book-entry Certificates, or (ii) the Lessee
determines that continuation of the book-entry system is not in
the best interest of the beneficial owners of the Certificates
or the Lessee, then the Lessee will discontinue the book-entry
system with the Depository. If . the Lessee determines to
replace the Depository with another qualified securities
depository, the Lessee shall prepare or direct the preparation
of a new single, separate, fully registered Certificate for
each of the maturity dates of such book-entry Certificates,
registered in the name of such successor or substitute
qualified securities depository or its Nominee as provided in
subsection (e) hereof . If the Lessee fails to identify another
qualified securities depository to replace the Depository, then
the Certificates shall no longer be restricted to being
registered in such Certificate register in the name of the
Nominee, but shall be registered in whatever name or names the
Owners transferring or exchanging such Certificates shall
designate, in accordance with the provisions of Section 2 . 08
hereof .
(d) Payments To Depository. Notwithstanding any other
provision of this Trust Agreement to the contrary, so long as
all Outstanding Certificates are held in book-entry and
registered in the name of the Nominee, all payments with
respect to principal, prepayment premium, if any, and interest
evidenced and represented by such Certificate and all notices
with respect to such Certificate shall be made and given,
respectively to the Nominee, as provided in the Letter of
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Representations or as otherwise instructed by the Depository
and agreed. to by the Trustee notwithstanding any inconsistent
provisions herein.
(e) Transfer of Certificates to Substitute Depository.
(i) The Certificates shall be initially issued as
provided in Section 2 . 01 hereof . Registered ownership of
such Certificates , or any portions thereof, may not
thereafter be transferred except :
(A) to any successor of DTC or its nominee, or
of any substitute depository designated pursuant to
clause (B) of subsection (i) of this Section 2 . 13 (e)
("Substitute Depository") ; provided that any successor
of DTC or Substitute Depository shall be qualified
under any applicable laws to provide the service
proposed to be provided by it;
(B) to any Substitute Depository, upon (1) the
resignation of DTC or its successor (or any Substitute
Depository or its successor) from its functions as
depository, or (2) a determination by the Lessee that
DTC (or its successor) is no longer able to carry out
its functions as depository; provided that any such
Substitute Depository shall be qualified under any
applicable laws to provide the services proposed to be
provided by it; or
(C) to any person as provided below, upon
(1) the resignation of DTC or its successor (or any
Substitute Depository or its successor) from its
functions as depository, or (2) a determination by the
Lessee that DTC or its successor (or Substitute
Depository or its successor) is no longer able to
carry out its functions as depository.
(ii) In the case of any transfer pursuant to
clause (A) or clause (B) of subsection (i) of this
Section 2 . 13(e) , upon receipt of all Outstanding
Certificates by the Trustee, together with a written
request of the Lessee to the Trustee designating the
Substitute Depository, a single new Certificate, which the
Lessee shall prepare or cause to be prepared, shall be
executed and delivered for each maturity of Certificates
then Outstanding, registered in the name of such successor
or such Substitute Depository or their Nominees, as the
case may be, all as specified in such written request of
the Lessee. In the case of any transfer pursuant to clause
(C) of subsection (i) of this Section 2 . 13(e) , upon receipt
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of all Outstanding Certificates by the Trustee, together
with a written request of the Lessee to the Trustee, new
Certificates, which the Lessee shall prepare or cause to be
prepared, shall be executed and delivered in such
denominations and registered in the names of such persons
as are requested in such written request of the Lessee,
subject to the limitations of Section 2 . 01 hereof, provided
that the Trustee shall not be required to deliver such new
Certificates within a period of less than sixty (60) days
from the date of receipt of such written request from the
Lessee.
(iii) In the case of a partial prepayment or an advance
refunding of any Certificates evidencing a portion of the
principal maturing in a particular year, DTC or its
successor (or any Substitute Depository or its successor)
shall make an appropriate notation on such Certificates
indicating the date and amounts of such reduction in
principal, all in accordance with the Letter of
Representations . The Trustee shall not be liable for such
Depository' s failure to make such notations or errors in
making such notations .
(iv) The Lessee and the Trustee shall be entitled to
treat the person in whose name any Certificate is
registered as the Owner thereof for all purposes of this
Trust Agreement and any applicable laws, notwithstanding
any notice to the contrary received by the Trustee or the
Lessee; and the Lessee and the Trustee shall not have
responsibility for transmitting payments to, communicating
with, notifying, or otherwise dealing with any beneficial
owners of the Certificates . Neither the Lessee nor the
Trustee shall have any responsibility or obligation, legal
or otherwise, to any such beneficial owners or to any other
party, including DTC or its successor (or Substitute
Depository or its successor) , except to the Owner of any
Certificates, and the Trustee may rely conclusively on its
records as to the identity of the Owners of the
Certificates .
SECTION 2 . 14 Destruction of Cancelled Certificates .
Whenever in this Trust Agreement provision is made for the
surrender or cancellation by the Trustee and the delivery to
the Lessee of any Certificates, the Trustee shall, in lieu of
such cancellation and delivery, destroy such Certificates and
deliver a certificate of such destruction to the Lessee.
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•
ARTICLE III
DELIVERY COSTS FUND
SECTION 3 . 01 Establishment of Delivery Costs Fund. The
Trustee shall establish a special fund designated as the "City
of Dublin 1993 Refunding Project Delivery Costs Fund"
(hereinafter, the "Delivery Costs Fund" ) ; shall keep such fund
and accounts separate and apart from all other funds and moneys
held by it; and shall administer such fund as herein provided.
There shall be credited to the Delivery Costs Fund the
proceeds of sale of the Certificates required to be deposited
therein pursuant to Section 2 . 07(c) hereof . The Trustee shall
disburse moneys in the Delivery Costs Fund from time to time to
pay Delivery Costs, upon receipt by the Trustee of a
Requisition signed by the Lessee Representative. Upon receipt
of a properly signed Requisition, the Trustee is authorized to
act thereon without further inquiry and, except for the
negligence or willful misconduct of the Trustee, the Lessee
shall hold the Trustee harmless against any and all losses,
claims or liabilities incurred directly in connection with the
Trustee making such disbursement .
The Trustee shall withdraw all remaining moneys in the
Delivery Costs Fund on November 1, 19.93 (other than any moneys
retained therein to pay Delivery Costs not then due and payable.
and certified by the Lessee Representative) and deposit such
moneys in the Lease Payment Fund to be applied to the payment
of principal and interest with respect to the Certificates as
prescribed in Section 5 . 04 hereof .
ARTICLE IV
PREPAYMENT OF CERTIFICATES
SECTION 4 . 01 Establishment of Prepayment Fund. The
Trustee shall establish a special fund designated as the "City
of Dublin 1993 Refunding Project Prepayment Fund" (hereinafter,
the "Prepayment Fund") ; shall keep such fund separate and apart
from all other funds and moneys held by it; and shall
administer such fund as herein provided. Moneys to be used for
prepayment of the Certificates shall be deposited into the
Prepayment Fund and used solely for the purpose of prepaying
the Certificates in advance of their maturity on the date
designated for prepayment and upon presentation and surrender
of such Certificates .
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84420001/4 .
SECTION 4 . 02 Prepayment From Net Proceeds . The
Certificates are subject to prepayment prior to their
respective maturity dates, in whole or in part on any date,
from Net Proceeds which the Trustee shall deposit in the
Prepayment Fund as provided in Section 6 . 1(c) of the. Lease at
least 45 days prior to such prepayment date and credited
towards the prepayment made by the Lessee pursuant to Section
10 . 2 of the Lease, at a prepayment price equal to the principal
amount thereof together with accrued interest to the date fixed
for prepayment, without premium.
SECTION 4 . 03 Optional Prepayment . The Certificates
maturing on or after February 1, 1999 are also subject to
prepayment prior- to their respective maturity dates, in whole
or. in part on any date on or after February 1, 1998 , at the
option of the Lessee, in the event the Lessee exercises its
option under Section 10 . 3 of the Lease to prepay in whole or in
part, from moneys legally available therefor in the Lease
Payment Fund, the principal component of the Lease Payments in
order to cause prepayment in whole or in part (in integral
multiples of $5, 000 plus any premium applicable but not in - a
principal amount of less than $20, 000 plus any premium
applicable) of such Certificates, at the prepayment prices,
expressed as percentages of the principal amount of such
Certificates to be prepaid, set forth in the following table,
together with accrued interest. to the date fixed for prepayment :
Redemption Period Redemption Price
February 1, 1998 through January 31, 1999 .101%
February 1, 1999 and thereafter 100
In the event the Lessee gives notice to the Trustee of its
intention to exercise such option, but fails to deposit with
the Trustee on or prior to the prepayment date an amount equal
to the prepayment price, the Lessee will continue to pay the
Lease Payments as if no such notice were given.
SECTION 4 . 04 Selection of Certificates for Prepayment .
Whenever provision is made in this Trust Agreement for the
prepayment of Certificates and less than all Outstanding
Certificates are called for prepayment, the Trustee shall
select Certificates for prepayment, from the Outstanding
Certificates not previously called for prepayment, in
authorized denominations of the Certificates maturing on the
Certificates Payment Dates designated by the Lessee,- and by lot
within any maturity, in any manner which the Trustee shall in
its sole discretion deem appropriate and fair. The Trustee
shall promptly notify the Lessee in writing of the Certificates
so selected for prepayment .
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•
SECTION 4 . 05 Notice of Prepayment .
(a) Content . When prepayment is authorized or required
pursuant to this Article IV, the Trustee shall give notice of
the prepayment of the Certificates . Such notice shall
specify: (a) the prepayment date, (b) the prepayment price,
(c) if less than all of the Outstanding Certificates are to be
prepaid, the Certificate numbers (and in the case of partial
prepayment, the respective principal amounts) , (d) the CUSIP
numbers of the Certificates to be prepaid, (e) the place or
places where the prepayment will be made, (f) the original date
of execution and delivery of the Certificates, (g) the rate of
interest payable with respect to each Certificate being
prepaid, and (h) any other descriptive information regarding
the Certificates needed to identify accurate the Certificates
being prepaid. Such notice shall further state that on the
specified date there shall become due and payable upon each
Certificate to be prepaid, the portion of the principal amount
of such Certificate to be prepaid, together with interest
accrued to said date, and that from and after such date,
provided that moneys therefor have been deposited with the
Trustee, interest with respect thereto shall cease to accrue
and be payable.
(b) Recipients ; Timing. Notice of such prepayment shall
be sent by overnight delivery service or confirmed facsimile
transmission postage prepaid, to all municipal Securities
Depositories (as defined below) on the date of mailing of
notice to the Owners and to at least one national Information
Service (as defined below) which the Lessee shall designate to
the Trustee that disseminate securities redemption notices, on
the date notice is mailed to the Owners and by first class
mail,, postage prepaid, to the Lessor and the respective Owners
of any Certificates designated for prepayment at their
addresses appearing on the Certificate registration books, at
least 30 days, but not more than 60 days, prior to the
prepayment date; provided that neither failure to receive such
notice nor any defect in any notice so mailed shall affect the
sufficiency of the proceedings for the prepayment of such
Certificates .
Securities Depositories include The Depository Trust
Company, 711 Stewart Avenue, Garden City, New York 11530,
Fax-(516) 227-4039 or 4190 ; Midwest Securities Trust Company,
Capital Structures-Call Notification, 440 South LaSalle Street ,
Chicago, Illinois 60605, Fax-(312) 663-2343 ; Philadelphia
Depository Trust Company, Reorganization Division, 1900 Market
Street, Philadelphia, Pennsylvania 19103 , Attention: Bond
Department, Fax-(215) 496-5058; or, in accordance with, the then '
current guidelines of the Securities and Exchange Commission to
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S
such other addresses and/or such other securities depositories
or to no such depositories as the Lessee may designate in
writing to the Trustee.
Information Services include Financial Information, Inc. ' s
"Daily Called Bond Service, " 30 Montgomery Street, 10th Floor,
Jersey City, New Jersey 07302 , Attention: Editor; Kenny S&P
Information Services ' "Called Bond Record, " 65 Broadway,
20th Floor, New York, New York 10006; Moody' s Investors Service
"Municipal and Government Manual, " 99 Church Street, 1st Floor,
New York, New York 10007, Attention: Municipal News Reports ;
and Standard and Poor ' s Corporation "Called Bond Record, "
25 Broadway, 17th Floor, New York. New York 10004 ; or, in
accordance with then current guidelines of the Securities and
Exchange Commission, to such other addresses and/or such other
services providing information with respect to called bonds, or
to no such services, as the Lessee may designate in writing to
the Trustee.
SECTION 4 . 06 Partial Prepayment of Certificates . Upon
surrender by the- Owner of a Certificate for partial prepayment
at the Principal Office, payment of such partial prepayment of
the principal amount of a Certificate will be paid to such
Owner . Upon surrender of any Certificate prepaid in part only,
the Trustee shall execute and deliver to the registered Owner
thereof, at the expense of the Lessee, a new Certificate or
Certificates which shall be of authorized denominations equal
in aggregate principal amount to the unprepaid portion of the
Certificate surrendered and of the same interest rate and the
same maturity. Such partial prepayment shall be valid upon
payment of the amount thereby required to be paid to such
Owner, and the Lessee, the Lessor and the Trustee shall be -
released and discharged from all liability to the extent of
such payment .
SECTION 4 : 07 Effect of Notice of Prepayment . Notice
having been given to the Owners of the Certificates as afore-
said, and the moneys for the prepayment (including the interest
to the applicable date of prepayment) , having been set aside in
the Prepayment Fund, the Certificates shall become due and
payable on said date of prepayment, and, upon presentation and
surrender thereof at the Principal Office, said Certificates
shall be paid at the unpaid prepayment price with respect
thereto, plus interest accrued and unpaid to said date of
prepayment .
If, on said date of prepayment, moneys for the prepayment
of all the Certificates to be prepaid, together with interest
to said date of prepayment, shall be held by the Trustee so as
to be available therefor on such date of prepayment, and, if
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notice of prepayment thereof shall have been given as afore-
said, then, from and after said date of prepayment, interest
with respect to the Certificates shall cease to accrue and
become payable. All moneys held by or on behalf of the Trustee
for the prepayment of Certificates shall be held in trust for
the account of the Owners of the Certificates so to be prepaid.
All Certificates paid at maturity or prepaid prior to
maturity pursuant to the provisions of this Article shall be
cancelled upon surrender thereof and delivered to or upon
the order of the Lessee.
SECTION 4 . 08 Surplus . Any funds remaining in the
Prepayment Fund after prepayment and payment of all
Certificates Outstanding, including accrued interest and
payment of any applicable fees to the Trustee pursuant to
Sections 9 . 06 and 9 . 07 hereof or provision made therefor
satisfactory to the Trustee and provision for any amounts
required to be transferred to the Rebate Fund pursuant to
Sections 8 . 07 and 8 . 08 hereof and Exhibit C hereto, shall be
withdrawn by the Trustee and remitted to the Lessee.
ARTICLE V
LEASE PAYMENTS; LEASE PAYMENT FUND
SECTION 5 . 01 Security Provisions .
(a) Assignment of Rights in Lease. The Lessor has,
pursuant to the Assignment Agreement, assigned and set over to
the Trustee certain of its rights in the Lease, including but
not limited to all of the Lessor ' s rights to receive and
collect all of the Lease Payments, the Prepayments, Reserve
Replenishment Rent and all other amounts required to be
deposited in the Lease Payment Fund pursuant to the Lease or
pursuant hereto. All Lease Payments, Prepayments, Reserve
Replenishment Rent and such other amounts to which the Lessor
may at any time be entitled shall be paid directly to the
Trustee, and all of the Lease Payments, Prepayments and Reserve
Replenishment Rent collected or received by the Lessor shall be
deemed to be held and to have been collected or received by the
Lessor as the agent of the Trustee and if received by the
Lessor at any time shall be deposited by the Lessor with the
Trustee within one Business Day after the receipt thereof, and
all such Lease Payments , Prepayments and such other amounts
shall be forthwith deposited by the Trustee upon the receipt
thereof in the Lease Payment Fund and all such Reserve
Replenishment Rent shall be forthwith deposited by the Trustee
upon the receipt thereof in the Reserve Fund.
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(b) Security Interest in Moneys and Funds . The Lessor and
the Lessee, as their interest may appear, hereby grant to the.
Trustee for the benefit of the Owners a lien on and a security
interest in all moneys in the funds held by the Trustee under
this Trust Agreement (excepting only the Rebate Fund and any
moneys to be deposited into the Rebate Fund) , including without
limitation, the Lease Payment Fund, the Reserve Fund (including
payments of Reserve Replenishment Rent pursuant to Section 6 . 02
hereof) , the Prepayment Fund, the Project Fund and the Net
Proceeds Fund, and all such moneys shall be held by the Trustee
in trust and applied to the respective purposes specified
herein and in the Lease.
(c) Pledge of Lease Payments . The Lease Payments are
hereby irrevocably pledged to and shall be used for the
punctual payment of the interest and principal represented by
the Certificates and the Lease Payments_ shall not be used for
any other purpose while any of the Certificates remain
Outstanding . This pledge shall constitute a first lien on the
Lease Payments in accordance with the terms hereof, subject to
Section 9 . 06 ,hereof .
SECTION 5 . 02 Establishment of Lease Payment Fund. The
Trustee shall establish a special fund designated as the "City
of Dublin 1993 Refunding Project Lease Payment Fund"
(hereinafter, the "Lease Payment Fund") . All moneys at any
time deposited by the Trustee in the Lease Payment Fund shall
be held by the Trustee in trust for the benefit of the Owners
of the Certificates . So long as any Certificates are
Outstanding, neither the Lessee nor the Lessor shall have any
beneficial right or interest in the Lease Payment Fund or the
moneys deposited therein, except only as provided in this Trust
Agreement, and such moneys shall be used and applied by the
Trustee as hereinafter set forth.
SECTION 5 . 03 Deposits . There shall be deposited in the
Lease Payment Fund all Lease Payments and Prepayments received
by the Trustee, including any moneys received by the Trustee
for deposit therein pursuant to Section 2 . 07 hereof (regarding
application of Certificates proceeds) and Section 4 . 4 of the
Lease (regarding Lease Payments) , and any other moneys
required to be deposited therein pursuant to the Lease,
including without limitation Section 5 . 3 of the Lease
(regarding proceeds of rental interruption insurance) or
pursuant to this Trust Agreement, which moneys shall be applied
as a credit towards any Lease Payment then due. If by the
close of business before any Lease Payment Date there shall not
have been deposited in the Lease Payment Fund an amount at
least equal to the Lease Payment due on such Lease Payment
Date, the Trustee shall immediately so notify the Lessee.
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SECTION 5 . 04 Application of Moneys . Except as provided in
this Section 5 . 04, all amounts in the Lease Payment Fund shall
be used and withdrawn by the Trustee solely for the purpose of
paying the principal of and interest with respect to the
Certificates as the same shall become due and payable, in
accordance with the provisions of Article II and Article IV
hereof, subject to the requirement that certain investment
earnings may be transferred to the Rebate Fund, as provided in
Sections 8 . 07 and 8 . 08 hereof and Exhibit C hereto .
On each Certificate Payment Date, the Trustee shall first
set aside an amount sufficient to pay the interest evidenced by
the Certificates becoming due and payable on such date, and
mail such amount to the Owners; and second, set aside an amount
sufficient to pay the principal evidenced by the Certificates
becoming due and payable on such Certificate Payment Date.
SECTION 5 . 05 Transfers of Investment Earnings to the
Rebate Fund. The Trustee shall, at least semiannually on or
before February 1 and August 1, transfer any income or profit
on the investment of moneys in the Lease Payment Fund to the
Rebate Fund, as provided in Sections 8 . 07 and 8 . 08 hereof and
Exhibit C. Thereafter, the Trustee shall credit such net
income as provided in Section 8 . 03 .
SECTION 5 .06 Surplus . Any funds remaining in the. Lease
Payment Fund after payment of all Certificates Outstanding,
including accrued interest and payment of any applicable fees
to the Trustee pursuant to Sections 9 . 06 and 9 . 07 hereof, or
provision made therefor satisfactory to the Trustee and
provision for any amounts required to be transferred to the
Rebate Fund pursuant to Sections 8 . 07 and 8 . 08 hereof and
Exhibit . 0 hereto, shall be withdrawn by the Trustee and
remitted to the Lessee.
ARTICLE VI
RESERVE FUND
SECTION 6 . 01 Establishment of Reserve Fund. The Trustee
shall establish a special fund designated as the "City of
Dublin 1993 Refunding Project Reserve Fund" (hereinafter, the
"Reserve Fund" ) . All moneys at any time on deposit in the
Reserve Fund shall be held by the Trustee in trust for the
benefit of the Lessee and for the benefit of the Owners of the
Certificates, as a reserve for the payment when due of all the
Lease Payments and Prepayments to be paid pursuant to the Lease
and of all payments on the Certificates and applied solely as
provided herein. The amount on deposit in the Reserve Fund
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shall at all times be maintained at the Reserve Requirement
while any Certificates remain Outstanding.
SECTION 6 . 02 Funding .
(a) Certificate Proceeds . On the Closing Date, there
shall be credited to the Reserve Fund an amount equal to the
initial Reserve Requirement, in accordance with Section 2 . 07(b)
hereof .
(b) Substitution of Surety Bond, Insurance Policy or Letter
of Credit . The Lessee may satisfy the Reserve Requirement at
any time by the deposit in the Reserve Fund of a surety bond,
an insurance policy or letter of credit as described below, or
any combination thereof .
(i) Surety Bond or Insurance Policy. A surety bond
or insurance policy issued to the Trustee, as agent of the
Owners, by a company licensed to issue an insurance policy
guaranteeing the timely payment of principal and interest
with respect to the Certificates (a "municipal bond
insurer") may be deposited in the Reserve Fund to meet the ,
Reserve Requirement if the claims paying ability of such
municipal bond insurer shall be rated "Aaa" by Moody' s
Investors Service and "AAA" by Standard & Poor ' s
Corporation.
If the claims paying ability of a municipal bond
insurer falls below an "Aaa" rating by Moody' s Investors
Service or an "AAA" rating by Standard & Poor ' s
Corporation, the Lessee will use its best efforts to pro-
cure a replacement surety bond or insurance policy within
30 days from the date of the decline in such claims paying
ability, meeting the requirements set forth above to the
extent that, in the judgment of the Lessee, such a substi-
tute or replacement surety bond or insurance policy is
available upon reasonable terms and at a reasonable cost,
or will deposit into the Reserve Fund cash or a letter of
credit meeting the requirements of this Section 6 . 02 in
order to provide that there will be on deposit in the
Reserve Fund an amount equal to the Reserve Requirement .
(ii) Letter of Credit . A letter of credit may be
deposited in the Reserve Fund to meet the Reserve
Requirement, provided that any such letter of credit must
be issued or confirmed by a state or national bank, or a
foreign bank with an agency or branch located in the
continental United States which has outstanding an issue of
unsecured long term debt securities rated at least equal to
the second highest rating category (disregarding rating
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subcategories) by Moody' s Investors Service and Standard &
Poor ' s Corporation, but in no event less than the rating on
the Certificates given by any rating agency which has a
then currently effective rating on the Certificates .
In the event that unsecured long-term debt securities
of the state, national or foreign bank which has issued or
confirmed any letter of credit are downgraded by Moody' s
Investors Service or Standard & Poor ' s Corporation to a
rate below the requirements set forth above, the Lessee
will obtain a substitute or replacement letter of credit
within 30 days from the date of such downgrading from a
state, national or foreign bank meeting the requirements
set forth above to the extent that, in the judgment of the
Lessee, such a substitute or replacement letter of credit
is available upon reasonable terms and at a reasonable
cost, or will deposit into the Reserve Fund cash or a
replacement surety bond or insurance policy meeting the
requirements of this Section 6 . 02 in order to provide that
there will be on deposit in the Reserve Fund an amount.
equal to the Reserve Requirement .
Unless the Certificates have been fully paid and
retired, the Trustee shall draw the full amount of any
letter of credit credited to the Reserve Fund for such
Certificates on the third Business Day preceding the date
such letter of credit (taking into account any extension,
renewal or replacement thereof) would otherwise expire, and
shall deposit moneys realized pursuant to such draw in the
Reserve Fund.
(iii) Release Moneys in Reserve Fund. If the Lessee
replaces a cash-funded Reserve Fund with a. surety bond,
insurance policy or letter of credit meeting the require-
ments of either (i) or (ii) above, amounts on deposit in
the Reserve Fund shall, upon written request of the Lessee
to the Trustee, be transferred, subject to the receipt by
the Lessee of an opinion of nationally-recognized bond
counsel that such transfer will not cause the interest
components of Lease Payments to be included in gross income
for purposes of federal income taxation, to the Lessee and
applied for the acquisition, construction, installation or
equipment of public capital improvements .
(c) Delinquent Lease Payments . Lessee hereby agrees that
if at any time the balance in the Reserve Fund shall be reduced
below the Reserve Requirement, the first payments of Lease
Payments thereafter payable by the Lessee and not needed to pay
interest and principal components of Lease Payments payable to
the Certificate Owners on the next Certificate Payment Date
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shall be used to first, reimburse the provider of any surety
bond, insurance policy or letter of credit, if any, for any
repayment obligation owing thereto for any draw on such surety
bond, insurance policy or letter of credit credited to the
Reserve Fund and second, to increase the balance in the Reserve
Fund to the required Reserve Requirement .
(d) Reserve Replenishment Rent . Any Reserve Replenishment
Rent payable pursuant to the terms of the Lease shall be
deposited in the Reserve Fund.
SECTION 6 . 03 Transfers of Excess . The Trustee shall, on
or before January 1 and July 1 of each year, provide written
notice to the Lessee of any moneys which will be on hand in the
Reserve Fund in excess of the Reserve Requirement on the next
succeeding February 1 or August 1, as the case may be, and on
January 15 or July 15, the Trustee shall transfer such excess
moneys to the Lease Payment Fund to be applied to the next
Lease Payment due from the Lessee, subject to the requirement
that certain investment earnings may be transferred to the
Rebate Fund as provided in Sections 8 . 07 and 8 . 08 hereof and
Exhibit C hereto.
SECTION 6 . 04 Application of Reserve Fund in Event of
Deficiency in Lease Payment Fund. Whether or not Lease
Payments are then in abatement, if three days immediately
preceding any Certificate Payment Date, the moneys available in
the Lease Payment Fund do not equal the amount of the principal
and interest with respect to the Certificates then coming due
and payable, the Trustee first shall apply the moneys available
in the Reserve Fund to make delinquent Lease Payments on behalf
of the Lessee by transferring the amount necessary for this
purpose to the Lease Payment Fund; provided, however, that in
the event that any portion of the Reserve Requirement is
satisfied with cash deposited to the Reserve Fund, all such
cash shall be applied to make delinquent Lease Payments on
behalf of the Lessee prior to any demand being made on any
surety bond, insurance policy or letter of credit credited to
the Reserve Fund, and provided further, that in the event there
shall be credited to the Reserve Fund more than one surety
bond, insurance policy or letter of credit, demand shall be
made on each such surety bond, insurance policy or letter of
credit pro-rata for any deficiency in the Lease Payment Fund.
SECTION 6 . 05 Transfer To Make All Lease Payments . If on
any Certificate Payment Date the moneys on deposit in the
Reserve Fund and the Lease Payment Fund (excluding amounts
required for payment of past due principal or interest with
respect to Certificates not presented for payment) are
sufficient to pay all Outstanding Certificates , including all
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• principal, interest and prepayment premiums (if any) , the
Trustee shall, upon the written direction or oral direction
confirmed in writing of the Lessee Representative, transfer all
amounts in the Reserve Fund to the Lease Payment Fund to be
applied to the payment of the Lease Payments or Prepayments on
behalf of the Lessee and such moneys shall be distributed to
the Owners of Certificates in accordance with Article II of
this Trust Agreement . Any amounts remaining in the Reserve
Fund upon payment in full of all Outstanding Certificates and
all amounts owed to the Trustee pursuant to Sections 9 . 06 and
9 . 07 hereof, or upon provision for such payments as provided in
Section 14 . 01 hereof and provisions for any amounts required to
be transferred to the Rebate Fund pursuant to Sections 8 . 07 and
8 . 08 hereof and Exhibit C hereto, shall be withdrawn by the
Trustee and paid to the Lessee.
ARTICLE VII
NET PROCEEDS FUND
SECTION 7 . 01 Establishment of Net Proceeds Fund;
Deposits . The Trustee hereby establishes a special fund
designated as the "City of Dublin 1993 Refunding Project. Net
Proceeds Fund" to be maintained and held in trust for the
benefit of the Owners, subject to disbursement therefrom as
provided herein. The Trustee shall deposit Net Proceeds in the.
Net Proceeds Fund as provided in Section 6 . 1(a) of the Lease.
SECTION 7 . 02 Disbursements . The Trustee shall disburse
Net Proceeds for replacement or repair of the Project as
provided in Section 6 . 1(b) of the Lease, or transfer such
proceeds to the Prepayment Fund upon notification of the Lessee
Representative as provided in Section 6 . 1(c) of the Lease.
After all of the Certificates have been paid and the entire
amount of principal and interest with respect to the
Certificates has been paid in full, or provision made for
payment satisfactory to the Trustee, including provision for
all amounts required to be transferred to the Rebate Fund
pursuant to Sections 8 . 07 and 8 . 08 hereof and Exhibit C hereto,
the Trustee shall pay any remaining moneys in the Net Proceeds '
Fund to the Lessee after payment of any amounts due to the
Trustee pursuant to Sections 9 . 06 and 9 . 07 hereof .
SECTION 7. 03 Cooperation. The Lessor and the Trustee
shall cooperate fully with the Lessee at the expense of. the
Lessee in filing any proof of loss with respect to any
insurance policy maintained pursuant to Article V of the Lease
and in the prosecution or defense of any prospective or pending
condemnation proceeding with respect to the Project or any item
or portion thereof .
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ARTICLE VIII
MONEYS IN FUNDS; INVESTMENT
SECTION 8 . 01 Held in Trust . The moneys and investments
held by the Trustee under this Trust, Agreement ' are irrevocably
held in trust for the benefit of the Owners, and, in the case
of the Rebate Fund, for payment as required to the United
States Treasury, and for the purposes herein specified, and
such moneys, and any income or interest earned thereon, shall
be expended only as provided in this Trust Agreement, and shall
not be subject to levy or attachment or lien by or for the
benefit of any creditor of the Lessor, the Trustee or the
Lessee, or any of them.
SECTION 8 . 02 Investments Authorized.
(a) By Trustee. Subject to the further provisions of this
Article VIII and Exhibit C hereto, moneys held by the Trustee
hereunder shall be invested and reinvested on maturity by the
Trustee, to the maximum extent practicable in Permitted
Investments bearing the highest yield reasonably obtainable,
giving due regard to the safety of such investment and to the
investment policy of the Lessee. The Trustee will report any
such investments to the Lessee on a monthly basis .
(b) Upon Direction of Lessee. The Lessee Representative
shall direct such investment in specific Permitted Investments
confirmed by written order filed with the Trustee which order
shall certify the investment to be a Permitted Investment;
provided, however, that the Trustee shall have received at
least two Business Days prior to the date of any such proposed
investment written directions of the Lessee setting forth the
Lessee ' s request for investments . In the event that the Lessee
Representative does not so direct the Trustee, the Trustee
shall invest in the Permitted Investments described in clause
(4) of the definition thereof contained in Section 1. 01.
(c) Registration. Such investments, if registrable, shall
be registered in the name of the Trustee for the benefit of the
Owners and held by the Trustee.
(d) Trustee as Purchaser or Agent . The Trustee may
purchase or sell to itself or any affiliate, as principal or
agent, investments authorized by this Section. The Trustee may
act as purchaser or agent in the making or disposing of any
investment .
(e) , Trustee Standard of Care. Except as otherwise
provided in Section 9 . 05, the Trustee shall not be responsible
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84420001/4
or liable for any loss suffered in connection with any ,
investment of funds or sale of such investment made by it in
accordance with this Section or Section 8 . 05(b) .
SECTION 8 .,03 Disposition of Investments . Any income,
profit or loss on the investment of moneys held by the Trustee .
hereunder shall be credited to the respective fund for which it
is held, except as otherwise provided herein.
SECTION 8 . 04 Accounting. The Trustee shall furnish to the
Lessee, not less than monthly, an accounting of all investments
made by the Trustee and all funds and amounts held by the
Trustee. The Trustee shall keep accurate records of all funds
administered by it and of all Certificates paid and discharged.
SECTION 8 . 05 Valuation and Disposition of Investments .
(a) Valuation. Subject to the provisions of Sections 8 . 07
and 8 . 08 hereof and Exhibit C .hereto, for the purpose of
determining the amount in any fund, all Permitted Investments
credited to such fund shall be valued at the lower of the cost
or the market price, exclusive of accrued interest . With
respect to all funds and accounts, valuation shall occur
monthly.
(b) Disposition. Subject to the provisions of Sections
8 . 07 and 8 . 08 hereof and Exhibit C hereto, the Trustee shall
sell at the best price obtainable, or present for prepayment,
any Permitted Investment so purchased by the Trustee whenever
it shall be necessary in order to provide moneys to meet any
required payment, transfer, withdrawal or disbursement from the
fund to which such Permitted Investment is credited.
SECTION 8 . 06 Commingling of Moneys in Funds . The Trustee
may, and upon the written request of the Lessee Representative
shall, commingle any of the funds held by it pursuant to this
Agreement into a separate fund or funds for investment purposes
only; provided, however, that all funds or accounts held by the
Trustee hereunder shall be accounted for separately notwith-
standing such commingling by the Trustee.
SECTION 8 . 07 Arbitrage Covenant . The Lessor and the
Lessee hereby covenant with the Owners of the Certificates
that, notwithstanding any other provision of this Trust -
Agreement, they will make no use of the proceeds of the
Certificates which would cause the Certificates to be
"arbitrage bonds" subject to federal income taxation by reason
of Section 148 of the Code . The Trustee hereby covenants with
the Owners of the Certificates that it will comply with the
provisions of this Trust Agreement and will follow the written
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84420001/4
directions of the Lessee so that the Certificates will not
become arbitrage bonds .
SECTION 8 . 08 Rebate Fund.
(a) The Trustee shall establish a special fund designated
the "Rebate Fund" (the "Rebate Fund") . All amounts at any time
on deposit in the Rebate Fund shall be held by the Trustee in
trust, to the extent required to satisfy the requirement to
make rebate payments to the United States (the "Rebate Require-
ment" ) pursuant to Section 148 of the Code and the Treasury
Regulations promulgated thereunder (the "Rebate Regulations" ) .
Such amounts shall be free and clear of any lien under this
Trust Agreement and shall be governed by this Section 3 . 08 and
by the Guidelines for Compliance with Section 148(f) of the
Internal Revenue Code. The Trustee shall be deemed conclu-
sively to have complied with the Rebate Requirement if it
follows the Written Requests of the Lessee, and shall have no
independent responsibility to, or liability resulting from its
failure to, enforce compliance by the Lessee with the Rebate
Requirement or to make, confirm, or verify the calculations of
the Lessee (unless such services are otherwise contracted for
outside of this Trust Agreement)' .
(b) Within 45 days of the end of each Certificate Year,
( 1) the Lessee shall calculate or cause to be calculated with
respect to the Certificates the amount that would be considered
"-rebatable arbitrage" within the meaning of Section 1. 148-2T(a)
of the Rebate Regulations, using as the "computation date" for
this purpose the end of such Certificate Year, and (2) upon the
Written Request of the Lessee, the Trustee shall deposit to the
Rebate Fund from deposits from the Lessee or from amounts on
deposit in the other funds established hereunder, if and to the
extent required, amounts sufficient to cause the balance in the
Rebate Fund to be equal to the amount of "rebatable arbitrage"
so calculated. The Trustee shall not be required to deposit
any amount to the Rebate Fund in accordance with preceding
sentence if the amount on deposit in the Rebate Fund prior to
the deposit required to be made under this subsection (b)
exceeds the amount of "rebatable arbitrage" calculated in
accordance with the preceding sentence. Such excess may be
withdrawn from the Rebate Fund to the extent permitted under
subsection (g) of this section. The Lessee shall not be
required to calculate the amount of "rebatable arbitrage"
within the meaning of Section 1 . 148-2(a) of the Rebate Regula-
tions, and shall not be required to submit a Written Request to
the Trustee to make deposits to the Rebate Fund in accordance
with this subsection (b) , with respect to all or a portion of
the proceeds of the Certificates (1) to the extent such pro-
ceeds satisfy the expenditure requirements of Section.
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84420001/4
148(f) (4) (B) or Section 148(f) (4) (C) of the Code, whichever is
applicable, and otherwise qualify for the exception to the
Rebate Requirement pursuant to whichever of said sections is
applicable, or (2) to the extent such proceeds are subject to
an election by the Lessee under Section 148(f) (4) (C) (vii) of
the Code to pay a 1-1/2% penalty in lieu of arbitrage rebate in
the event any of the percentage expenditure requirements of
Section 148(f) (4) (C) are not satisfied.
(c) Any funds remaining in the Rebate Fund after prepay-
ment of all the Certificates and any amounts described in
paragraph (2) of subsection (d) of this section, or provision
made therefor satisfactory to the Trustee, including accrued
interest and payment of any applicable fees to the Trustee,
shall be withdrawn by the Trustee and remitted to the Lessee.
(d) Upon the Written Request of the Lessee, which shall
comply with the exceptions contained in subsection. (b) of this
section to the requirement to calculate "rebatable arbitrage"
and make deposits to the Rebate Fund, the Trustee shall pay to
the United States, from amounts on deposit in the Rebate Fund,
(1) not later than 60 days after the end of (i) the
fifth Certificate Year, and (ii) each fifth Certificate
Year thereafter, an amount that, together with all previous
payments of "rebatable arbitrage" calculated in accordance
with Section 1 . 148-2 of. the Rebate Regulations, is equal to
at least 90% of the sum of (A) the "•rebatable arbitrage"
calculated as of the end of such Certificate Year in
accordance with Section 1. 148-2 of the Rebate Regulations,
and (B) all previous payments of "rebatable arbitrage"
calculated in accordance with Section 1. 148-2T of the
Rebate Regulations; and
(2) not later than 60 days after the payment of all
Certificates, an amount equal to 100% of the "rebatable
arbitrage" calculated as of the end of such Certificate
Year (and any income attributable to the rebatable
arbitrage determined to be due and payable) in accordance
with Section 1 . 148-2 of the Rebate Regulations .
(e) In the event that, prior to the time of any payment
required to be made from the Rebate Fund, the amount in the
Rebate Fund is not sufficient to make such payment when such
payment is due, the Lessee shall calculate the amount of such
deficiency and direct the Trustee in a Written Request of the
Lessee to deposit an amount received from the Lessee equal to
such deficiency into the Rebate Fund prior to the time such
payment is due.
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•
(f) Each payment, required to be made pursuant to subsec-
tion (d) of this section shall be made to the Internal Revenue
Service Center, Philadelphia, Pennsylvania 19255 on or before
the date on which such payment is due, and shall be accompanied
by Internal Revenue Service Form 8038-G prepared by or on
behalf of the Lessee.
(g) In the event that immediately following the calcula-
tion required by subsection (b) of this section, but prior to
any deposit made under said subsection, the amount on deposit
in the Rebate Fund exceeds the amount of "rebatable arbitrage"
calculated in accordance with said subsection, upon the Written
Request of the Lessee, the Trustee shall withdraw the excess
from the Rebate Fund and credit such excess to the Lease Rental
Payment Fund.
(h) The Lessee shall retain records of all determinations
made hereunder until six years after the retirement of the last
obligation of the Certificates .
(i) Notwithstanding anything in this Trust Agreement to
the contrary, the Rebate Requirement shall survive the
defeasance of the Certificates .
ARTICLE IX
THE TRUSTEE
SECTION 9 . 01 Appointment of Trustee.
(a) Appointment . First Interstate Bank of California, a
banking corporation organized under the laws of the State of
California, is hereby appointed Trustee by the Lessor and the
Lessee.
(b) Qualifications . The Lessor and the Lessee agree that
they will maintain a Trustee capable of exercising trust powers
in the State of California, with a combined capital (exclusive
of borrowed capital) and surplus of at least fifty million
dollars ($50, 000, 000) , and subject to supervision or examina-
tion by federal or state authority, so long as any Certificates
are Outstanding . 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 purpose of this Section 9 . 01 the
combined capital and surplus of such bank or trust company
shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
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(c) Removal . So long as there is no Event of Default, the
Lessee may remove the Trustee initially appointed, and any
successor thereto, and may appoint a successor or successors
thereto .
(d) Resignation. The Trustee may, upon 60 days written
notice to the Lessee and the Lessor, resign; provided that such
resignation shall not take effect until the successor Trustee
is appointed as provided in this Section. Upon receiving such
notice of resignation, the Lessee shall promptly appoint a
successor Trustee. In the event the Lessee does not name a
successor Trustee within 30 days of receipt of notice of the
Trustee ' s resignation, then the Trustee may petition a court of
suitable jurisdiction to seek the immediate appointment of a
successor Trustee.
(e) Successor . Any successor Trustee shall be a bank or
trust company meeting the qualifications as set forth in
Subsection (b) above. Any resignation or removal of the
Trustee and appointment of a successor Trustee shall become
effective upon acceptance of appointment by the successor
Trustee. Upon such acceptance, the successor Trustee shall
mail notice thereof to the Owners at their respective addresses
set forth on the Certificate registration books maintained
pursuant to Section 2 . 12 .
Any successor Trustee appointed under this Trust Agreement,
shall signify its acceptance of such appointment by executing
and delivering to the Lessee and to its predecessor Trustee a
written acceptance thereof, and thereupon such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the moneys, estates, properties, rights,
powers, trusts, duties and obligations of such predecessor
Trustee, with like effect as if originally named Trustee
herein; but, nevertheless at the request of the Lessee or the
request of the successor Trustee, such predecessor Trustee
shall execute and deliver any and all instruments of conveyance
or further assurance and do such other things as may reasonably
be required for more fully and certainly vesting in and
confirming to such successor Trustee all the right, title and
interest of such predecessor Trustee in and to any property
held by it under this Trust Agreement and shall pay over,
transfer, assign and deliver to the successor Trustee any money
or other property subject to the trusts and conditions herein
set forth. Upon request of the successor Trustee, the Lessee
shall execute and deliver any and all instruments as may be
reasonably required for more fully and certainly vesting in and
confirming to such successor Trustee all such moneys, estates ,
properties, rights , powers, trusts, duties and obligations .
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SECTION 9 . 02 Merger or Consolidation. Any company into
which the Trustee may be merged or converted or with which it
may be consolidated or any company resulting from any merger,
conversion or consolidation to which it shall be a party or any
company to which the Trustee may sell or transfer all or
substantially all of. its corporate trust business, provided
that such company shall be eligible under Section 9 . 01, shall
be the successor to the Trustee without the execution or filing
of any paper or further act, anything herein to the contrary
notwithstanding .
SECTION 9 . 03 Protection of the Trustee.
(a) Reliance Upon Papers or Documents . The Trustee shall
be protected and shall incur no liability in acting or pro-
ceeding in good faith upon any resolution, notice, telegram,
facsimile, request, consent, report, order, waiver,
certificate, statement, affidavit, voucher, bond, requisition
or other paper or document which it shall in good faith believe
to be genuine and to have been passed or signed by the proper
board or person or to have been prepared and furnished pursuant
to any of the provisions of this Trust Agreement, and the
Trustee shall be under no duty to make any investigation or
inquiry as to any statements contained or matters referred to
in any such instrument, but may, in the absence of bad faith on
its part, accept and rely upon the same as conclusive evidence
of the truth and accuracy of such statements .
(b) Reliance Upon Opinions of Counsel . The Trustee may
consult with counsel, who may be counsel to the Lessee, with
regard to legal questions and the opinion of such counsel shall
be full and complete authorization and protection in respect of
any action taken or suffered by it hereunder in good faith in
accordance therewith. Before being required 'to take any
action, the Trustee may require an opinion of Independent
Counsel acceptable to the Trustee which opinion shall be made
available to the other parties hereto upon request, which
counsel may be counsel to any of the parties. hereto, or a
verified certificate of any party hereto, or both, concerning
the proposed action. . If it does so in good faith, Trustee
shall be absolutely protected in relying thereon.
(c) Reliance Upon 'Requested Certificates . Whenever in the
administration of its duties under this Trust Agreement, the
Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action
hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) , in the absence of
bad faith on its part, shall be deemed to be conclusively
proved and established by the certificate of the Lessee
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Representative or the Lessor Representative and such
certificate shall be full warranty to the Trustee, in the
absence of bad faith on its part, for any action taken or
suffered under the provisions of this Trust Agreement 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.
(d) No Liability for Errors of Judgment . The Trustee
shall not be liable for any error of judgment made in good
faith by a responsible officer, unless it shall be proved that ,
the Trustee was negligent or engaged in willful misconduct in
ascertaining the pertinent facts .
(e) No Liability for Action Taken in Good Faith at
Direction of Owners . The Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Owners of
not less than a majority in aggregate principal amount of the
Certificates at the time Outstanding relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee.
(f) No Liability for Action Taken in Good Faith Under
Trust Agreement. The Trustee shall not be liable for any
action taken by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or ..powers
conferred upon it by this Trust Agreement .
(g) No Obligation to Ascertain Compliance. Except as
otherwise expressly provided herein, the Trustee shall not be
bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or
agreements herein or of any of the documents executed in
connection with the Certificates, or as to the existence of a
default or Event of Default thereunder.
(h) No Implied Covenants or Obligations . The Trustee
undertakes to perform such duties and only such duties as are
specifically set forth in this Trust Agreement, and no implied
covenants or obligations shall be read into this Trust
Agreement against the Trustee.
(i) No Financial Liability. No provision of this Trust
Agreement shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the
performance of its duties hereunder or in the exercise of any
of its rights or powers 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 .
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(j ) No Responsibility with Respect to Disclosure
Material . The Trustee shall have no responsibility with
respect to any information, statement or recital in any
offering memorandum or other disclosure material prepared or
distributed with respect to the Certificates .
SECTION 9 . 04 Rights of the Trustee.
(a) Ownership of Certificates . The Trustee may become the
Owner of Certificates with the same rights it would have if it
were not Trustee; may acquire and dispose of other bonds or
evidence of indebtedness of the Lessee with the same rights it
would have if it were not the Trustee; and may act as a
depositary for and permit any of its officers or directors to
act as a member of, or in any other capacity with respect to,
any committee formed to protect the rights of Owners, whether
or not such committee shall represent the Owners of the
majority in principal amount of the Certificates then
Outstanding .
(b) Attorneys . Agents . Receivers . The Trustee may execute
any of the trusts. or powers hereof and perform the duties
required of it hereunder by or through attorneys , agents, or
receivers, and the Trustee shall not be answerable for the acts
or misconduct of any such attorney, agent or receiver selected
by it with reasonable care.
SECTION 9 . 05 Standard of Care. The Trustee shall, prior
to an Event of Default, and after the curing of all Events of
Default which may have occurred, perform such duties and only
such duties as are specifically set forth in this Trust
Agreement . The Trustee shall, during the existence of any
Event of Default (which has not been cured) , exercise such of
the rights and powers vested in it by this Trust Agreement, and
use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in
the conduct of his own affairs . So long as there is no Event
of Default, the Trustee shall not be liable in connection with
the performance of its duties hereunder, except for its own
negligence or willful misconduct . In the Event of Default, the
Trustee shall exercise such care in performing its duties
hereunder as a prudent person would exercise in the conduct of
his affairs . The Trustee shall not be held liable for
selection or liquidation of investments or any losses which may
be incurred as a result of the investment of funds in Permitted
Investments by the Trustee. .
SECTION 9 . 06 Compensation of the Trustee. As additional
rent under Section 4 . 11 of the Lease, the Lessee shall from
time to time on demand, pay to the Trustee reasonable
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compensation for its services and all reasonable expenses,
charges, legal and consulting fees and other disbursements and
those of its agents and employees and any accountants,
consultants, attorneys and other experts as may be engaged by
the Trustee to provide services under this Trust Agreement
pursuant to a written agreement between the Lessee and the
Trustee, and the Trustee shall have a lien therefor on any and
all funds at any time held by it under this Trust Agreement,
which lien shall be prior and superior to the lien of the
Certificate Owners . The Lessee ' s obligation hereunder shall
remain valid and binding notwithstanding maturity and payment
of the Certificates and discharge of this Trust Agreement .
SECTION 9 . 07 Indemnification of Trustee. The Lessee shall
indemnify to the extent permitted by law, and save the Trustee
harmless from and against all claims,'- losses, costs, expenses,
liability and damages, including legal fees and expenses,
arising out of : (i) the use, maintenance., condition or
management of, or from any work or thing done on or to, the
Project by the Lessee; (ii) any breach or default on the part
of the Lessee in the performance of any of its obligations
under this Trust Agreement and any other agreement made and
entered into for purposes of the Project; (iii) any act of
negligence of the Lessee or of any of its agents contractors,
servants, employees or licensees with respect to the Project;
(iv) any act of negligence of any assignee of, or purchaser
from, the Lessee or of any of its or their agents, contractors,.
servants , employees or licensees with respect to the Project;
(v) acquisition of the Project; (vi) the actions of any other
party, including but not limited to the ownership, ,operation or
use of the Project by the Lessee; (vii) the Trustee ' s exercise
and performance of its powers and duties hereunder or under any
related document; or (viii) any untrue statement of any
material fact or omission or alleged omission to state a
material fact necessary to make the statements made, in light
of the circumstances under which they were made, not misleading
in any official statement or other offering circular utilized
in connection with the sale of the Certificates . Such
indemnification shall include the costs and expenses of
defending against any claim or liability arising under this
Trust Agreement . Notwithstanding any provisions to the
contrary, no indemnification will be made under this Section or
elsewhere in this Trust Agreement for willful misconduct,
negligence, or breach of duty under this Trust Agreement by the
Trustee, its officers , agents, employees, successors or assigns .
Before taking any action hereunder, the Trustee may require
that satisfactory indemnity be furnished for the reimbursement
of all expenses to which it may be put and to protect it
against all liability, except liability which is adjudicated to.
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have resulted from its negligence, breach of duty or willful
misconduct by reason of any action so taken.
ARTICLE X
MODIFICATION OR AMENDMENT OF AGREEMENTS
SECTION 10 . 01 Amendments Permitted.
(a) With Consent . This Trust Agreement and the rights and
obligations of the Owners, and the Lease and the rights and
obligations of the parties thereto, may be modified or amended
at any time by a supplemental agreement which shall become
effective when the written consent of the Owners of a majority
in aggregate principal amount of the Certificates then
Outstanding, exclusive of Certificates disqualified as provided
in Section 10 . 03 hereof, shall have been filed with the
Trustee. No such modification or amendment shall :
(1) extend or have the effect of extending the fixed
maturity of any Certificate or reducing the interest rate
with respect thereto or extending the time of payment of
interest, or reducing the amount of principal thereof or
reducing any premium payable upon the prepayment thereof,
without the express consents of the Owner of such
Certificate, or
(2) reduce or have the effect of reducing the
percentage of Certificates required for the affirmative
vote or written consent to an amendment or modification of
the Lease, or
(3) modify any of the rights or obligations of the
Trustee without its written assent thereto .
Any such supplemental agreement shall become effective as
provided in Section 10 . 02 hereof .
(b) Without Consent . This Trust Agreement and the rights
and obligations of the Owners and the Lease and the rights and
obligations of .the parties thereto, maybe modified or amended
at any time by a supplemental agreement, without the consent of
any such Owners, but only to the extent permitted by law and
only:
(1) to add to the covenants and agreements of the
Lessee hereunder,. or
(2) to cure, correct or supplement any ambiguous or
defective provision contained herein or therein, or
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(3) in regard to matters arising hereunder or there-
under, as the parties hereto or thereto may deem necessary
or desirable and which shall not adversely affect the
interest of the Owners , or
(4) to substitute the Project, or a portion thereof,
or to release a portion of the Site, in accordance with
Section 3 . 3 and Section 7 . 8, respectively, of the Lease
Agreement, or
(5) to make such additions, deletions or modifica-
tions as may be necessary or appropriate to assure the
exclusion from gross income for federal income tax purposes
of the interest component of Lease Payments and the
interest payable with respect to the Certificates , or
(6) to provide for delivery of a Reserve Fund credit
instrument as provided in Section 6 . 02 hereof, or
(7) to add to the rights of the Trustee, or
(8) to maintain the rating or ratings assigned to the.
Certificates .
No such modification or amendment, however, shall modify any of
the rights or obligations of the Trustee without its written
assent thereto . Any such supplemental agreement shall become
effective upon execution and delivery by the parties hereto or
thereto as the case may be.
SECTION 10 . 02 Procedure for Amendment with Written Consent
of the Owners . This Trust Agreement or the Lease may be
amended by supplemental agreement as provided in this Section
10 . 02 in the event the consent of the Owners is required
pursuant to Section 10 . 01(a) hereof . A copy of such supple-
mental agreement, together with a request to the Owners for
their consent thereto, shall be mailed by the Trustee to each
Owner of a Certificate at his address as set forth in the
Certificate registration books maintained pursuant to Section
2 . 12 hereof, but failure to receive copies of such supplemental
agreement and request so mailed shall not affect the validity
of the supplemental agreement when assented to as in this
Section provided.
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 Certificates then Outstanding (exclu-
sive of Certificates disqualified as provided in Section 10 . 03
hereof) and notices shall have been mailed as hereinafter in
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this Section provided. Any such consent shall be binding upon
the Owner of the Certificate 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
notice hereinafter in this Section provided for has been mailed.
After the Owners of the required percentage of Certificates
shall have filed their consent to such supplemental agreement,
the Trustee shall mail a notice to the Owners of the
Certificates in the manner hereinbefore provided in this
Section for the mailing of such supplemental agreement, stating
in substance that such supplemental agreement has been
consented to by the Owners of the required percentage of
Certificates and will be effective as provided in this Section
(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 to
be filed with the Trustee, shall be proof of the matters •
therein stated until the contrary is proved. The Trustee may
obtain and conclusively rely on an opinion of counsel that any
supplement or amendment to this Agreement complies with this
Article X.
SECTION 10 . 03 Disqualified Certificates . Certificates
owned or held by or for the account of the Lessee or the Lessor
or by any person directly or indirectly controlled or
controlled by, or under direct or indirect common control with
the Lessee or the Lessor (except any Certificates held in any
pension or retirement fund) shall not be deemed Outstanding for
the purpose of any vote, consent, waiver or other action or any
calculation of Outstanding Certificates provided for in this
Trust Agreement, and shall not. be entitled to vote upon,
consent to, or take any other action provided for in this Trust
Agreement.
The Lessee or the Trustee may adopt appropriate regulations
to require each Owner, before his consent provided for in this.
Article X shall be deemed effective, to reveal if the
Certificates as to which such consent is given are disqualified
as provided in this Section 10 . 03 hereof .
SECTION 10 . 04 Effect of Supplemental Agreement . From and
after the time any supplemental agreement becomes effective
pursuant to this Article X, this Trust Agreement or the Lease,
as the case may be, shall be deemed to be modified and amended
in accordance therewith, the respective rights, duties and
obligations of the parties hereto or thereto and all Owners of
Certificates Outstanding, as the case may be, shall thereafter
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I
be determined, exercised and enforced hereunder subject in all
respects to such modification and amendment, and all the terms
and conditions of any supplemental agreement shall be deemed to
be part of the terms and conditions of this Trust Agreement or
the Lease, as the case may be, for any and all . purposes .
SECTION 10 . 05 Endorsement or Replacement of Certificates
Delivered After Amendments . The Trustee may determine that
Certificates delivered after the effective date of any action
taken as provided in this Article X. shall bear a notation, by
endorsement, in form approved by the Trustee, as to such
action. In that case, upon demand of the Owner of any
Outstanding Certificate at such effective date and presentation
of his Certificate for such purpose at the Principal Office, a
suitable notation shall be made on such Certificate. The
Trustee may determine that new Certificates, so modified as in
the opinion of the Trustee is necessary to conform to such
Owner ' s action, shall be prepared, executed and delivered. In
that case, upon demand of the Owner of any Certificate then
Outstanding, such new Certificate shall be exchanged in the
Principal Office without cost to such Owner, for a Certificate
of the same character then Outstanding, upon surrender of such
Certificate.
SECTION 10 . 06 Amendatory Endorsement of Certificates .
Subject to Section 10 . 01 hereof, the provisions of this
Article X shall not prevent an Owner from accepting any
amendment as to the particular Certificates held by him,
provided that due notification thereof is made on such
Certificates .
ARTICLE XI
COVENANTS; NOTICES
SECTION 11 . 0.1 Compliance With and Enforcement of the
Lease. The Lessee covenants and agrees with the Owners to
perform all obligations and duties imposed on it under the
Lease. The Lessor covenants and agrees with the Owners to
perform all obligations and duties imposed on it under the
Lease.
The Lessee will not do or permit anything to be done, or
omit or refrain from doing anything, in any case where any such
act done or permitted to be done, or any such omission of or
refraining from action, would or might be a ground for
cancellation or termination of the Lease by the Lessor
thereunder. The Lessor and the Lessee, immediately upon
receiving or giving any notice, communication or other document
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in any way relating to or affecting their respective estates,
or either of them, in the Project, which may or can in any
manner affect such estate of the Lessee, will deliver the same,
or a copy thereof, to the Trustee.
SECTION 11. 02 Payment of Taxes . The Lessee shall pay all
taxes as provided in Section 7 . 7(b) of the Lease.
SECTION 11 . 03 Observance of Laws and Regulations . The
Lessee will well and truly keep, observe and perform all valid
and lawful obligations. or regulations now or hereafter imposed
on it by contract, or prescribed by any law of the United
States , or of the State, or by any officer, board or commission
having jurisdiction or control, as a condition of the continued
enjoyment of any and every right, privilege or franchise now
owned or hereafter acquired by the Lessee, to the end that such
rights, privileges and franchises shall be maintained and
preserved, and shall not become abandoned, forfeited or in any
manner impaired.
SECTION 11. 04 Prosecution and Defense of Suits . The
Lessee shall promptly, and also upon request of the Trustee or
any Owner, from time to time take such action as may be
necessary or proper to remedy or cure any defect in or cloud
upon the title to the Project, whether now existing or
hereafter developing and shall prosecute all such suits,
actions and other proceedings as may be appropriate for such
purpose and shall to the extent permitted by law indemnify and
save the Trustee and every Owner harmless from all loss, cost,
damage and expense including attorneys ' fees, which they or any
of them may incur by reason of any such defect, cloud, suit,
action or proceeding .
SECTION 11. 05 Lessee Budgets . In accordance with
Section 4 . 7 of the Lease, the Lessee Representative shall
certify to the Trustee that the Lessee has included all Lease
Payments (other than Lease Payments of advance rental) ,
Additional Payments and Reserve Replenishment Rent due under
the Lease in the Fiscal Year covered by its annual budget. and
the amount so included. If the Lessee fails to provide the
Trustee with such certification, the Trustee shall promptly
provide the Lessee written notice specifying that the Lessee
has failed to observe and perform its covenant and agreement in
such Section 4 . 7. and requesting that such failure be remedied
within 30 days, or such failure shall constitute an Event. of
Default under Section 9 . 1(b) of the Lease . The Trustee shall
forward a copy of such notice to the Lessor . Upon receipt of
such notice, the Lessee shall notify the Trustee ,of the
proceedings proposed to be taken by the Lessee, and shall keep
the Trustee advised of all proceedings thereafter taken by the .,
Lessee.
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SECTION 11 . 06 Further Assurances . The Lessor and the
Lessee will make, execute and deliver any and all such further
resolutions , instruments and assurances as may be reasonably
necessary or proper to carry out the intention or to facilitate
the performance of this Agreement, and for the better assuring
and confirming unto the Trustee and the Owners the rights and
benefits provided herein.
SECTION 11 . 07 Tax Covenants . The Lessee will not make any
use of the proceeds of the obligations provided herein or any
other funds of the Lessee or take or omit to take any other
action which will cause such obligations to be a "private
activity bond" within the meaning of Section 141 of the Code or
"federally guaranteed" within the meaning of Section 149 (b) of
the Code. To that end, so long as any Lease Payments are
unpaid, the Lessee, with respect to such proceeds and such
other funds, will comply with all requirements of such Sections
and all regulations of the United States Department of the
Treasury issued thereunder and under Section 103 of the
Internal Revenue Code of 1954 , as amended, to the extent that
such requirements are, at the time, applicable and in effect .
The Lessee will not use or permit the use of the Project or
any portion thereof by any person not an "exempt person" within
the meaning of Section 103 (b) (3) of the Code, or by an "exempt
person" in an "unrelated trade or business" within the meaning
of Section 513 (a) of the Code, in such manner or to such extent
as would result in the inclusion of the interest portion of any
Lease Payments in the gross income of the owners of the
Certificates for purposes of federal income taxation.
ARTICLE XII
LIMITATION OF LIABILITY
SECTION 12 . 01 Limited Liability of the Lessee. Except for
the payment of Lease Payments , Additional Payments, Reserve
Replenishment Rent and Prepayments when due in accordance with
the Lease and the performance of the other covenants and
agreements of the Lessee contained herein and in the Lease, the
Lessee shall have no obligation or liability to any of the
other parties or to the Owners with respect to this Trust
Agreement or the terms , execution, delivery or transfer of the
Certificates , or the distribution of Lease Payments to the
Owners by the Trustee.
SECTION 12 . 02 No Liability of the Lessee or Lessor for
Trustee Performance. Except as expressly provided herein,
neither the Lessee nor the Lessor shall have any obligation or
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liability to any other parties or to the Owners with respect to
the performance by the Trustee of any duty imposed upon it
under this Trust Agreement .
SECTION 12 . 03 Limited Liability of Trustee.
(a) No Investment Advice. The Trustee shall have no obli-
gation or responsibility for providing information to the
Owners concerning the investment character of the Certificates .
(b) Sufficiency of this Trust Agreement or Lease Payments .
The Trustee makes no representations as to the validity or
sufficiency of the Certificates , shall incur no responsibility
in respect thereof, other than in connection with the duties or
obligations herein or in the Certificates assigned to or
imposed upon it . The Trustee shall not be responsible for the
sufficiency of the Lease . The Trustee shall not be liable for
the sufficiency or collection of any Lease Payments or other
moneys required to be paid to it under the Lease (except as
provided in this Trust Agreement) , its right to receive moneys
pursuant to said Lease, or the value of or title to the
premises upon which the Project is located or the Project .
(c) Actions of Lessor and Lessee. The Trustee shall have
no obligation or liability to any of the other parties or the
Owners with respect to this Trust Agreement or failure or
refusal of any other party to perform any covenant or agreement
made by any of them under this Trust Agreement or the Lease,
but shall be responsible solely for the performance of the
duties and obligations expressly imposed upon it hereunder as
provided in Section 9 . 05 .
(d) Recitals and Agreements of Lessor and Lessee. The
recitals of facts, covenants and agreements herein and in the
Certificates contained shall be taken as statements, covenants
and agreements of the Lessee or the Lessor (as the case may
be) , and the Trustee assumes no responsibility for the
correctness of the same.
SECTION 12 . 04 Limitation of Rights to Parties and
Certificate Owners . Nothing in this Trust Agreement or in the
Certificates expressed or implied is intended or shall be
construed to give any person other than the Lessee, the Lessor,
the Trustee and the Owners, any legal or equitable right,
remedy or claim under or in respect of this Trust Agreement or
any covenant, condition or provision hereof ; and all such
covenants , conditions and provisions are and shall be for the
sole and exclusive benefit of the Lessee, the Lessor, the
Trustee and the Owners .
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ARTICLE XIII
EVENTS OF DEFAULT AND REMEDIES OF CERTIFICATE OWNERS
SECTION 13 . 01 Assignment of Rights . The parties hereto
acknowledge that pursuant to the Assignment Agreement the
Lessor has transferred, .assigned and set over to the Trustee
for the benefit of the Owners , certain of the Lessor ' s rights
under the Lease.
SECTION 13 . 02 Events of Default .
(a) Remedies . If an Event of Default shall happen, then,
and in each and every such case during the continuance of such
Event of Default, the Trustee may exercise any and all remedies
available. pursuant to law or granted pursuant to the Lease;
provided, however, that notwithstanding anything herein or in
the Lease to the contrary, THERE SHALL BE NO RIGHT UNDER ANY
CIRCUMSTANCES TO ACCELERATE THE MATURITIES OF THE CERTIFICATES
OR OTHERWISE TO DECLARE ANY LEASE PAYMENTS NOT THEN IN DEFAULT
TO BE IMMEDIATELY DUE AND PAYABLE.
(b) Actual Knowledge . The Trustee shall not be deemed to
have knowledge of any Event of Default hereunder unless and
until it shall have actual knowledge thereof, or shall have
received written notice thereof, at its Principal Office .
SECTION 13 . 03 Application of Funds . All moneys received
by the Trustee pursuant._ to any right given or action taken
under the provisions of this Article XIII- or of Article IX of
the Lease, shall be deposited into the Lease Payment Fund and
be applied by the Trustee after payment of all amounts due and
payable under Section 9 . 06 hereof in the following order upon
presentation of the several Certificates, and the stamping
thereon of the payment if only partially paid, or upon the
surrender thereof if fully paid -
First, Costs and Expenses : to the payment in full of
the fees, costs and expenses of the Trustee and,
thereafter, to the payment of the .fees and expenses 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 installments of interest then due
in the order of the maturity of such installment, and, if
the amount available shall not be sufficient to pay in full
any installment or installments maturing on the same date,
then to the payment thereof ratably according to the
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amounts due thereon, to the persons entitled thereto,
without any discrimination or preference; and
Third, Principal : to the payment to the persons -
entitled thereto of the unpaid principal of any
Certificates which shall have become due, whether at
maturity or by call for prepayment, in the order of their
due dates, with interest on the overdue principal and
interest at a rate equal to the rate paid with respect to
the Certificates and, if the amount available shall not be
sufficient to pay in full all the amounts due with respect
to the Certificates 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.
SECTION 13 . 04 Institution of Legal Proceedings . If one or
more Events of. Default shall happen and be continuing, the
Trustee in its discretion may, and upon the written request of
the Owners of a majority in aggregate principal amount of the
Certificates then Outstanding, and upon being indemnified to
its satisfaction therefor, shall, proceed to protector enforce
its rights or the rights of the Owners by a suit in equity or
action at law, either for the specific performance of any
covenant or agreement contained herein or in the Lease, or in
aid of the execution of any power herein granted, or by
mandamus or other appropriate proceeding for the enforcement of
any other legal or equitable remedy as the Trustee shall deem
most effectual in support of any of its rights or duties
hereunder; provided that such written request shall not be
otherwise than in accordance with provisions of law and this
Trust Agreement and that the Trustee shall have the right to
decline to follow any such written request if the Trustee shall
be advised by counsel that the action or proceeding so
requested may not be taken lawfully or if the Trustee in good
faith shall determine that the action or proceeding so
requested would be unjustly prejudicial to the Certificate
Owners not a party to such written request .
SECTION 13 . 05 Non-Waiver . Nothing in this Article XIII or
in any other provision of this Trust Agreement or in the
Certificates shall affect or impair the obligation of the
Lessee which is absolute and unconditional, to pay or prepay
the Lease Payments as provided. in the Lease. No delay or
omission of the Trustee or of any Owner of any of the
Certificates to exercise any right or power arising upon the
happening of any Event of Default shall impair any such right
or power or shall be construed to be a waiver of any such Event
of Default or an acquiescence therein, and every power and
remedy given by this Article XIII to the Trustee or to the
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y
Owners may be exercised from time to time and as often as shall
be deemed expedient by the Trustee or the Owners .
SECTION 13 . 06 Remedies Not Exclusive. No remedy herein
conferred upon or reserved to the Trustee or to the Owners is
intended to be exclusive of any other remedy, and every such
remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing, at
law or in equity or by statute or otherwise.
SECTION 13 . 07 Power of Trustee to Control Proceedings . In
the event that the Trustee, upon the happening of an Event of
Default, shall have taken any action, by judicial proceedings
or otherwise, pursuant to its duties hereunder, whether upon
its own discretion or upon the request of the Owners of a
majority in aggregate principal amount of the Certificates then
Outstanding, it shall have full power, in the exercise of its
discretion for the best interest of the Owners of the
Certificates , with respect to the continuance, discontinuance,
withdrawal, compromise, settlement or other disposal of such
action; provided, however, that the Trustee shall not, unless
there no longer continues an Event of Default, discontinue,
withdraw, compromise or settle, or otherwise dispose of any
litigation pending at law or in equity, if at the time there
has been filed with it a written request signed by the Owners
of at least a majority in principal amount of the Outstanding
Certificates hereunder opposing such discontinuance,
withdrawal , compromise, settlement or other disposal of such
litigation.
SECTION 13 . 08 Limitation on Certificate Owners ' Right to
Sue. No Owner of any Certificate executed hereunder shall have
the right to institute any suit, action or proceeding at law or
in equity, for any remedy under or upon this Trust Agreement,
unless (a) such Owner shall have previously given to the
Trustee written notice of the occurrence .of an Event of Default
under the Lease; (b) the Owners of a majority in aggregate
principal amount of all the Certificates then Outstanding shall
have made written request upon the Trustee to exercise the
powers hereinbefore granted or to institute such action, suit
or proceeding in its own name; (c) said Owners shall have
tendered to the Trustee indemnity satisfactory to the Trustee
against the costs, expenses and liabilities to be incurred in
compliance with such request; and (d) the Trustee shall have .
refused or omitted to comply with such request for a period of
60 days after such written request shall have been received by,
and said tender of indemnity shall have been made to, the
Trustee.
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84420001/4
Such notification, request, tender of indemnity and refusal
or omission are hereby declared, in every case, to be
conditions precedent to the exercise by any Owner of any remedy
hereunder; it being understood and intended that no one or more
Owners shall have any right in any manner whatever by his or
their action to enforce any right under this Agreement, except
in the manner herein provided and for the equal benefit of all
Owners of the Outstanding Certificates .
The right of any Owner of any Certificate to receive
payment of said Owner ' s proportionate interest in the Lease
Payments as the same become due, or to institute suit for the
enforcement of such payment, shall not be impaired or affected
without the consent of such Owner, notwithstanding the
foregoing provisions of this Section or any other provision of
this Trust Agreement .
SECTION 13 . 09 Agreement to Pay Attorneys ' Fees and
Expenses . In the event any party to this Trust Agreement
should default under any of the provisions hereof and the
nondefaulting party should employ attorneys or incur other
expenses for the collection of moneys or the enforcement or
observance of any obligation or agreement on the part of the
defaulting party contained herein, the defaulting party agrees
that it will on demand therefor pay to the nondefaulting party
the reasonable fees of such attorneys and such other expenses
so incurred by the nondefaulting party.
ARTICLE XIV
MISCELLANEOUS
SECTION 14 . 01 Defeasance.
(a) Methods . If and when any Outstanding Certificates
shall be paid and discharged in any one or more of the
following ways -
(1) Payment or prepayment : by well and truly paying
or causing to be paid the principal of and interest and
prepayment premiums (if any) with respect to all
Certificates Outstanding, as and when the same become due
and payable;
(2) Cash: if prior to maturity and having given
notice of prepayment by depositing with the Trustee, in
trust, at or before maturity, an amount of cash which
(together with cash then on deposit in the Lease Payment
Fund and the Reserve Fund together with the interest to
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84420001/4
accrue thereon, in the event of payment or provision for
payment of all Outstanding Certificates) is sufficient to
pay all Certificates Outstanding, including all principal
and interest and premium, if any; or
(3) Federal Securities : by irrevocably depositing
with the Trustee, in trust, Federal Securities together
with cash, if required, in such amount as will, in the
opinion of an independent certified public accountant,
together with interest to accrue thereon (and, in the event
of payment or provision for payment of all Outstanding
Certificates, moneys then on deposit in the Lease Payment
Fund and the Reserve Fund together with the interest to
accrue thereon) , be fully sufficient to pay and discharge
all Certificates (including all principal and interest
represented thereby and prepayment premiums if any) at or
before their maturity date;
and if the Lessee shall also pay or cause to be paid all other
sums payable hereunder, then, notwithstanding that any
Certificates shall not have been surrendered for payment, all
obligations of the Lessor, the Trustee and the Lessee with
respect to such Certificates shall cease and terminate, except
only the obligation of the Trustee to pay or cause to be paid,
from Lease Payments paid by or on behalf of the Lessee from
funds deposited pursuant to paragraphs (2) and (3) above, to
the Owners of the. Certificates not so surrendered and paid all
sums due with respect thereto, and in the event of deposits
pursuant to paragraphs (2) and (3) of this Section, the
Certificates shall continue to represent direct and propor-
tionate interests of the Owners thereof in Lease Payments under
the Lease.
(b) Surplus Moneys . Any funds held by the Trustee, at the
time of payment or provision for payment of all Outstanding
Certificates pursuant to the one of the procedures described in
paragraphs (a) (1) through (a) (3) of this Section, which are not
required for the payment to be made to Owners, shall be paid
over to the Lessee, after the payment of any amounts due to the
Trustee pursuant to Sections 9 . 06 and 9 . 07 hereof .
(c) Surviving Provisions . Notwithstanding the satisfaction
and discharge hereof, the Trustee shall retain such rights ,
powers and privileges hereunder as may be necessary or
convenient for the payment of the principal, interest and
redemption premium, if any, on the Certificates and for the
registration, transfer and exchange of the Certificates .
SECTION 14 . 02 Non-Presentment of Certificates . In the
event any Certificate shall not be presented for payment when
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84420001/4
the principal with respect thereof becomes due, either at
maturity, or at the date fixed for prepayment thereof , if
moneys sufficient to pay such Certificate shall have been
deposited in the Lease Payment Fund, all liability of the
Lessee to the Owner thereof for payment of such Certificate
shall forthwith cease, terminate and be completely discharged,
and thereupon it shall be the duty of the Trustee to hold such
moneys , without liability for interest thereon, for the benefit
of the Owner of such Certificate who shall thereafter be
restricted exclusively to such moneys, for any claim of
whatever nature on his or her part under this Trust Agreement
or on, or with respect to, said Certificate.
Any moneys so deposited with and held by the Trustee not so
applied to the payment of Certificates within two (2) years
after the date on which the same shall have become due shall be
paid by the Trustee to the Lessee, free from the trusts created
by this Trust Agreement . Thereafter, Owners shall be entitled
to look only to the Lessee for payment, and then only to the
extent of the amount so repaid by the Trustee. The Lessee
shall not be liable for any interest on the sums paid to it
pursuant to this section and shall not be regarded as a trustee
or trustees of such money.
SECTION 14 . 03 Records . The Trustee shall keep complete
and accurate records of all moneys received and disbursed under
this Trust Agreement, which shall be available for inspection
by the Lessee, the Lessor and any Owner, or the agent of any of
them, at any time during regular business hours .
SECTION 14 . 04 Notices . All written notices to be given
under this Trust Agreement shall be given by mail or personal
delivery to the party entitled thereto at its address set forth
below, or at such address as the party may provide to the other
party in writing from time to time. Notice shall be deemed to
have been received upon the earlier of actual receipt or five
business days after deposit in the United States mail, in
certified form, postage prepaid or, in the case of personal
delivery, upon delivery to the address set forth below:
If to the Lessee:
City of Dublin
100 Civic Plaza
Dublin, California 94568
Attention: City Manager
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84420001/4 .
If to the Lessor :
Dublin Information, Inc.
c/o City of Dublin
100 Civic Plaza
Dublin, California 94568
Attention: City Manager
If to the Trustee:
First Interstate Bank of California
345 California Street, 8th Floor
San Francisco, California 94104
Attention: Corporate Trust Department
SECTION 14 . 05 Governing Law. This Trust Agreement shall
be construed and governed in accordance with the laws of the
State.
SECTION 14 . 06 Binding Effect; Successors . This Trust
Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns . Whenever
in this Trust Agreement either the Lessor, the Lessee or the
Trustee is named or referred to, such reference shall be deemed
to include the successors or assigns thereof and all the
covenants and agreements in this Trust Agreement contained by
or on behalf of the Lessor, the Lessee or the Trustee shall
bind and inure to the benefit of the respective successors and
assigns thereof whether so expressed or not .
SECTION 14 . 07 Execution in Counterparts . This Trust
Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute
but one and the same agreement .
SECTION 14 . 08 Headings . The headings or titles of the
several Articles and Sections hereof, and any table of contents
appended to copies hereof, shall be solely for convenience of
reference and shall not affect the meaning, construction or
effect of this Trust Agreement . All references herein to
"Articles" , "Sections" and other subdivisions are to the
corresponding Articles, Sections or subdivisions of this Trust
Agreement; and the words "herein, " "hereof, " "hereunder" and
other words of similar import refer to this Trust Agreement as
a whole and not to any particular Article, Section or
subdivision hereof .
SECTION 14 . 09 Waiver of Notice. Whenever in this Trust
Agreement the giving of notice by mail or otherwise is
required, the giving of such notice may be waived in writing by
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84420001/4
the person entitled to receive such notice and in any case the
giving or receipt of such notice shall not be a condition
precedent to the validity of any action taken in reliance upon
such waiver .
SECTION 14 . 10 Separability of Invalid Provisions . In case
any one or more of the provisions contained in this Trust
Agreement or in the Certificates shall for any reason be held
to be invalid, illegal or unenforceable in any respect, then
such invalidity, illegality or unenforceability shall not
affect any other provision of this Trust Agreement, and this
Trust Agreement shall be construed as if such invalid or
illegal or unenforceable provision had never been contained
herein. The parties hereto hereby declare that they would have
entered into this Trust Agreement and each and every other
•
section, paragraph, sentence, clause or phrase hereof and
authorized the delivery of the Certificates pursuant thereto
irrespective of the fact that any one or more sections,
paragraphs, sentences, clauses or phrases of this Trust
Agreement may be held illegal, invalid or unenforceable.
SECTION 14 . 11 CUSIP Numbers . Neither the Trustee nor the
Lessee shall be liable for any defect or inaccuracy in the
CUSIP number that appears on any Certificate or in any
' redemption notice. The Trustee may, in its discretion, include
in any redemption notice a statement to the effect that the
CUSIP numbers on the Certificates have been assigned by an
independent service, and are included in such notice solely for
the convenience of the Owners and that neither Lessee nor the
Trustee shall be liable for any inaccuracies in such numbers .
SECTION 14 . 12 Payments due on a day other than a
day. If the date for making any payment or the last date for
performance of any act or. the exercising of any right, as
provided in this Agreement, is not a Business Day, such
payment, with no interest accruing for the period after such
nominal date, may be made or act performed or right exercised
on the next succeeding. Business day with the same force and
effect as if done on the nominal date provided therefore in
this Agreement .
•
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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date and year first above written.
FIRST INTERSTATE BANK
OF CALIFORNIA,
as Trustee
By
Authorized Signatory
DUBLIN INFORMATION, INC. ,
as Lessor
By
CITY OF DUBLIN,
as Lessee
By
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84420001/4
EXHIBIT A
[FORM OF CERTIFICATE OF PARTICIPATION]
CERTIFICATE OF PARTICIPATION
Evidencing the Proportionate Interest of the Owner Hereof
In Lease Payments to be Made by
CITY OF DUBLIN
As Rental for a Certain Project
Pursuant to a Lease Agreement With
DUBLIN INFORMATION, INC.
Interest Rate Maturity Date Dated Date CUSIP
June 1, 1993
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT:
THIS IS TO CERTIFY THAT the registered owner named above,
or registered assigns, as the Registered Owner of this
Certificate of Participation (the "Certificate") is the owner
of a proportionate and undivided interest in the right to
receive certain Lease Payments and Prepayments thereof under
and defined in that certain Lease Agreement, dated as of
June 1, 1993 (the "Lease" ) , by and between DUBLIN INFORMATION,
INC. a nonprofit corporation duly organized and existing under
the laws of the State of California (the "Lessor" ) and the CITY
OF DUBLIN, a municipal corporation organized and existing under
and by virtue of the laws of the State of California (the
"Lessee" ) , which Lease Payments and Prepayments and certain
other rights and interests under the Lease have been assigned
to FIRST INTERSTATE BANK OF CALIFORNIA, as trustee (the
"Trustee" ) , having a corporate trust office at which it
conducts corporate trust business in San Francisco, California
(said office being herein referred to as the "Principal
Office" ) .
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84420001/4
The Registered Owner of this Certificate is entitled to be
paid, subject to the terms of the Lease, on the maturity date
specified above, the principal amount specified above,
representing a portion of the Lease Payments designated as
principal coming due during the preceding twelve months, and to
be paid on February 1, 1994 , and semiannually thereafter on
August 1 and February 1 of each year, (the "Payment Dates" )
until payment in full of said portion of principal, the
Registered Owner ' s portion of the Lease Payments designated as
interest coming due during the six months immediately preceding
each of the Payment Dates; provided that interest with respect
hereto shall be payable from the Payment Date next preceding
the date of execution of this Certificate (unless (i) this
Certificate is executed on a Payment Date in which event it
should be payable from the date thereof, or (ii) this
Certificate is executed after the close of business on the
fifteenth day of the month prior to the following Payment Date
(the "Record Date" ) , in which event interest shall be payable
from such Payment Date, or (iii) unless this Certificate is
executed prior to January 15, 1994, in which event interest
shall be payable from June 1, 1993) . The portion of the Lease
Payments designated as interest is computed on the basis of a
360-day year of twelve 30-day months and is the result of the
multiplication of the aforesaid portion of the Lease Payments
designated as principal by the rate per annum identified
above. Said amounts are payable in lawful money of the United
States of America . The amount representing principal payable
at maturity or upon prepayment in whole or in part is payable
to the Registered Owner upon presentation and surrender of this
Certificate at the Principal Office. The amounts representing
interest are payable by check mailed on the Certificate Payment
Date by the Trustee to the Registered Owner hereof as of the
Record Date preceding the Payment Date at his address as it
appears on the registration books of the Trustee or at such
other address as the Registered Owner may have filed with the
Trustee for that purpose. Interest with respect to any
Certificates may, at the option of any Owner of Certificates in
an aggregate principal amount of $1, 000, 000 or more evidenced
by the written request of such Owner to the Trustee, be paid to
such Owner by wire transfer to the bank and account number in
the United States on file with the Trustee as of the Record
Date.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
CERTIFICATE ON THE REVERSE HEREOF WHICH SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH HEREIN.
A-2
84420001/4
IN WITNESS WHEREOF, this Certificate has been executed and
delivered by First Interstate Bank of California, as Trustee,
acting 'pursuant to the Trust Agreement .
FIRST INTERSTATE BANK
OF CALIFORNIA,
as Trustee
Date of Execution:
Authorized Signatory
[REVERSE SIDE OF CERTIFICATE]
CERTIFICATE OF PARTICIPATION
IN LEASE PAYMENTS MADE BY
CITY OF DUBLIN
This Certificate has been executed and delivered by the
Trustee pursuant to the terms of a Trust Agreement, dated as of
June 1, 1993 (the "Trust Agreement" ) , by and among the Trustee,
the Lessor and the Lessee. The Lessee is authorized to enter
into the Lease and the Trust Agreement under the laws of the
State of California. Reference is hereby made to the Lease and
the Trust Agreement (copies of which are on file at the
Principal Office) for a description of the terms on which the
Certificates are delivered, the rights thereunder of the
Registered Owners of the Certificates, the rights, duties and
immunities of the Trustee and the rights and obligations of the
Lessee under the Lease, to all of the provisions of which Lease
and Trust Agreement the Registered Owner of this Certificate,
by acceptance hereof, assents and agrees and which are hereby
incorporated by reference in this Certificate as if fully
stated herein. To the extent there are any conflicts between
the terms of this Certificate on the one hand and the Lease and
the Trust Agreement on the other hand, the terms of the Lease
and the Trust Agreement shall govern.
The Lessee is obligated to pay Lease Payments from any
source of legally available funds, and the Lessee has
covenanted in the Lease to make the necessary annual
appropriations therefor . The obligation of the Lessee to pay
the Lease Payments does not constitute an obligation of the
Lessee for which the Lessee is obligated to levy or pledge any
form of taxation or for which the Lessee has levied or pledged
any form of taxation. The obligation of the Lessee to pay
Lease Payments does not constitute a debt of the Lessee, the
State of California or any of its political subdivisions within
the meaning of any Constitutional or statutory debt limitation
A-3
84420001/4
or restriction. The Lessee ' s obligation to pay Lease Payments
may be abated during any period in which, by reason of material
damage, destruction or condemnation there is substantial
interference with the use and right of possession by the Lessee
of the Project . Failure of the Lessee to pay Lease Payments
during any such period shall not constitute a default under the
Lease, the Trust Agreement or this Certificate.
To the extent and in the manner permitted by the terms of
the Trust Agreement, the provisions of the Trust Agreement may
be amended by the parties thereto with the written consent of
the Registered Owners of at least a majority in aggregate
principal amount of the Certificates then Outstanding, and may
be amended without such consent under certain circumstances but
in no event such that the interests of the Registered Owners of
the Certificates are adversely affected. No such modification
or amendment shall (1) extend or have the effect of extending
the fixed maturity of any Certificate or reducing the interest
rate with respect thereto or extending the time of payment of
interest, or reducing the amount of principal thereof or
reducing any premium payable upon the prepayment thereof,
without the express consent of the Registered Owner of such
Certificate, or (2) reduce or have the effect of reducing the
percentage of Certificates required for ,the affirmative vote or
written consent to an amendment or modification of the Lease,
or (3) modify any of the rights or obligations of the Trustee
without its written assent thereto .
This Certificate is transferable by the Registered Owner
hereof, in person or by his duly authorized attorney, at the
Principal Office, but only in the manner, subject to the
limitations and upon payment of the charges provided in the
Trust Agreement and upon surrender and cancellation of this
Certificate. Upon such transfer a new Certificate or
Certificates, of authorized denomination or denominations, for
the same aggregate principal amount, maturity and interest
rate, will be delivered to the transferee. This Certificate
also may be exchanged for a like aggregate principal amount of
Certificates of other authorized denominations as prescribed in
the Trust Agreement . The Lessee, the Lessor and the Trustee
may treat the Registered Owner hereof as the absolute owner
hereof for all purposes whether or not this Certificate shall
be overdue, and the Lessee, the Lessor and the Trustee shall
not be affected by any notice to the contrary.
The Certificates are subject to prepayment prior to their
respective maturity dates in whole or in part on any date, in
inverse order of maturity and by lot within any maturity, from
the Net Proceeds credited towards the prepayment of the Lease
Payments by the Lessee pursuant to the Lease, at a prepayment
A-4
84420001/4 ,
price equal to the principal amount thereof together with
accrued interest to the date fixed for prepayment, without
premium.
The Certificates maturing on or after February 1, 1999 are
also subject to prepayment prior to their respective maturity
dates , in whole or in part on any date on or after February 1,
1998, at the option of the Lessee, in the event the Lessee
exercises its option under the Lease to prepay in whole or in
part, from moneys legally available therefor in the Lease
Payment Fund, the principal component of the Lease Payments in
order to cause prepayment in whole or in part (in integral
multiples of $5, 000 plus any premium applicable but not in a
principal amount of less than $20, 000 plus any premium
applicable) of such Certificates, at the prepayment prices,
expressed as percentages of the principal amount of such
Certificates to be prepaid, set forth in the following table,
together with accrued interest to the date fixed for prepayment:
Redemption Period ' Redemption Price
February 1, 1998 through January 31, 1999 101%
February. !, 1999 and thereafter 100
In the event the Lessee gives notice to the Trustee of its
intention to exercise such option, but fails to deposit with
the Trustee on or prior to the prepayment date an amount equal
to the prepayment price, the Lessee will continue to pay the
Lease Payments as if no such notice were given..
As provided in the Trust Agreement, notice of prepayment
shall be mailed, not less than 30 nor more than 60 days before
the prepayment date, to the Registered Owner of this
Certificate, but neither failure to receive such notice nor any
defect in the notice so mailed shall affect the sufficiency of
the proceedings for prepayment . If this Certificate is called
for prepayment and payment is duly provided therefor as
specified in the Trust Agreement, interest shall cease to
accrue with respect hereto from and after the date fixed for
prepayment . .
The Lessee has certified that all acts , conditions and
things required by the statutes of the State of California and
the Trust Agreement to exist, to have happened and to have been
performed precedent to and in connection with the execution and.
delivery of this Certificate do exist , have happened and have
been performed in regular and due time, form and manner as
required by law, and that the Trustee is duly authorized to
execute and deliver this Certificate, and that the amount of
this Certificate, together with all other Certificates executed
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84420001/4 _ .
• and delivered under the Trust Agreement, is not in excess of
the amount of Certificates authorized to be executed and
delivered thereunder .
Terms used herein which are not otherwise defined shall
have the respective meanings assigned thereto in the Trust
Agreement .
The Trustee has no obligation or liability to the
Certificate Owners to make any payment of the interest or
principal, or other payment represented by the Certificates ,
other than as stated in the Trust Agreement from the Lease
Payments and amounts credited thereto received or held by the
Trustee . The recitals herein shall be taken as statements of
the Lessee and not of the Trustee.
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84420001/4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells , assigns
and transfers. unto
(please print or typewrite name, address, including postal
zip code, . and social security or other identifying number
of Transferee)
the within Certificate and all rights thereunder, and hereby
irrevocably constitutes and appoints
to transfer the within Certificate on the books kept for
registration thereof, with full power of substitution in the
premises .
Dated:
Signature Guaranteed
NOTICE: Signature(s) must .be NOTICE: The signature to this
guaranteed by a member of the assignment must correspond
New York Stock Exchange or a with the name as it appears
commercial bank or trust upon the face of the within
company. Certificate in every
particular, without
alteration or enlargement or
any change whatever .
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84420001/4
EXHIBIT B
FORM OF WRITTEN REQUISITION
[INSERT NAME AND ADDRESS OF TRUSTEE]
RE: Disbursement from the Delivery Costs Fund pursuant to
Section 3 . 01 of the Trust Agreement, dated as of June 1,
1993 (the "Trust Agreement" ) , by and among FIRST INTERSTATE
BANK OF CALIFORNIA, as trustee (the "Trustee" ) , DUBLIN
INFORMATION, INC. (the "Lessor" ) and the CITY OF DUBLIN
(the "Lessee" )
REQUISITION NO. _
1 . Amount ; Payee. You are hereby instructed to pay to
the Lessee, or to at
$ as a Delivery Cost from the Delivery Costs
Fund as provided in Section 3 . 01 of the Trust Agreement . This
Delivery Cost has been properly incurred, is a proper charge
against the Delivery Costs Fund and has not been the basis of
any previous disbursements .
2 . Sufficiency of Remaining Moneys . The amount remaining
in the Delivery Costs Fund, together with interest earnings on
the Delivery Costs Fund, will, after payment of the amount set
forth in this requisition, be sufficient to pay all remaining
Delivery Costs as presently estimated.
Very truly yours,
Lessee Representative
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84420001/4
Exhibit C
Certificates of Participation
(1993 Civic Center Refunding Project)
Evidencing the Proportionate Interests
of the Owners Thereof
in Lease Payments to be Made by the
CITY OF DUBLIN
as Rental for a Certain Project Pursuant
to a Lease Agreement
GUIDELINES FOR COMPLIANCE WITH SECTION 148(f)
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
The City of Dublin, California (the "City") hereby
covenants that it will not use any of the proceeds of its
$ aggregate principal amount of Certificates of
Participation (1993 Financing Project) (the "Certificates") in
any way (i) that would cause the Certificates to become
"private activity bonds" within the meaning of Section 141(a)
of the Internal Revenue Code of 1986, as amended (the "Code") ,
(ii) that would cause the Certificates to become "arbitrage
bonds" within the meaning of Section 148 of the Code, or (iii)
that would cause the Certificates to be "federally guaranteed"
within the meaning of Section 149(b) of the Code. In
connection with such covenants of the City, the City agrees to
comply with the requirements of Section 148(f) of the Code,,
relating to limitations on the yield that may be obtained from
certain investments made with proceeds of the Certificates and
certain other money in funds and accounts.
To enable the City to perform its obligations under the
covenants described above and otherwise and to rebate all
necessary amounts to the United States Treasury, the
undersigned, Richard Ambrose, City Manager, hereby certifies
that the City shall adhere to the following instructions .
All capitalized terms not otherwise defined herein shall
have the respective meanings ascribed to them in the Trust
Agreement, dated as of June 1, 1993, by and among the City,
First Interstate Bank of California, as Trustee, and Dublin
Information, Inc. , as the Corporation, and the Certificate as
to Arbitrage executed by the City on the date hereof in
connection with the execution and delivery of the Certificates .
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PART A. General .
1 . Nonpurpose Investments . These rules shall apply to
the investment of Gross Proceeds, as defined below, in any
security, obligation, annuity contract or any other.
investment-type property that is not acquired to carryout the
governmental purpose of the Certificates ("Nonpurpose
Investments") . Nonpurpose Investments shall not include:
(a) United States Treasury Securities - State and
Local Government Series (Demand Deposit) ; and
(b) tax-exempt obligations .
For purposes of these Guidelines, the term "tax-exempt
obligations" shall include only obligations the interest on
which is (i) excludable from gross income for federal income
tax purposes, and (ii) not treated as an item of tax preference
under Section 57(a) (5) of the Code. The term "tax-exempt
obligation" shall, however, include stock in a "qualified
regulated investment company, " which is a corporation that (i)
is .a regulated investment company within the meaning of Section
851(a) of the Code and meets the requirements of Section 852(a)
of the Code for the taxable year; (ii) has only one class of
stock authorized and outstanding; (iii) invests all of its.
assets in tax-exempt obligations (as defined above) to the
extent practicable; and (iv) has at least 98 percent of (A) its
gross income derived from interest on, or gain from the sale or
other disposition of, tax-exempt obligations, or (B) the
weighted average value of its assets represented by investments
in tax-exempt obligations .
2 . Gross Proceeds . For purposes of these Guidelines, the
term "Gross Proceeds" means :
(a) proceeds derived from the sale of the
Certificates;
(b) amounts that are reasonably expected to be or are
in fact used to pay debt service on the Certificates;
(c) amounts pledged as security for the payment of
debt service on the Certificates ;
(d) amounts treated as "transferred proceeds" of the
Certificates , within the meaning of Section 1 .,148-11(c) of . ,
the Treasury Regulations, if any;
(e) amounts treated as "replacement proceeds" of the
Certificates, within the meaning of Section 1 . 148-8(d) (7)
of the Treasury Regulations, if any; and
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(f) investment earnings on amounts described in
(a)-(e) above.
3 . Yields and Debt Service. Yields are to be calculated
by means of an actuarial method of yield calculation whereby
the term "yield" means that discount rate that when used in
computing the present value of all the unconditionally payable
payments of principal and interest and all the payments for a
"qualified guarantee"" (as defined in Section 1 . 148-3 of the
Rebate Regulations) paid and to be paid with respect to an
obligation produces an amount equal to the present value of the
issue price of such obligation. The yield on obligations
acquired with proceeds of the Certificates and the yield with.
respect to the Certificates must be computed by the use of the
same frequency interval of compounding interest . For purposes
of calculating the yield with respect to the Certificates, the
issue price of the Certificates (as defined in Section 1273 of
the Code) is equal to the initial offering price to the public
(excluding bond houses, brokers and similar persons acting in
the capacity of underwriters or wholesalers) at which a substan-
tial amount (e.q . , at least ten percent) of each maturity of
the Certificates was sold. For purposes of calculating the
yield on Nonpurpose Investments, the purchase price will be the
amount paid for such investments or, if different, the fair
market value of such investment on the date it becomes Gross
Proceeds .
4 . Fair. Market Value. For purposes of these Guidelines,
the purchase price and disposition price of a nonpurpose
investment will be the fair market value of the investment on
an established market . Accordingly, a premium may not be paid
to adjust the yield on an investment, a lower interest rate
than is usually paid may not be accepted to adjust the yield on
an investment and no transaction may result in a smaller profit
or larger loss than would have resulted if the transaction had
been at arm' s-length and had the yield on the Certificates not
been relevant to either party. . In no event shall the purchase
price be increased by, or the disposition price be reduced by,
brokerage or sales commissions, administrative expenses or
similar expenses . However, certain administrative fees will be
deemed to increase the yield on certain investments .
(a) Certificate of Deposit . A certificate of deposit
with a fixed interest rate, fixed principal payment
schedule, fixed maturity and a substantial penalty for
early withdrawal will be deemed purchased for fair market
value if the yield on the certificate of deposit is not
less than the yield on reasonably comparable direct
obligations of the United States and either (i) the yield
is not less than the highest yield published or posted by
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the provider on comparable certificates offered to the
public, or (ii) the City (A) makes a bona fide solicitation
for a specified certificate of deposit and receives at
least three qualifying bids from providers with no material
financial interest in the issue, and (B) purchases the
highest yielding certificate of deposit with a yield not
less than the yield offered by the provider to persons
investing amounts that are not proceeds of tax-exempt bonds .
(b) ' Investment Agreement . Investments pursuant to an
investment agreement with 'a maturity with a remaining term
to maturity in excess of six months will be regarded as
being made at fair market price only if (i) at least three
bids are received on the investment contract from -•
reasonably competitive providers of investment contracts
that are not related to each other and that have no
material financial interest in the Certificates (including
as underwriter or original purchaser) ; (ii) the winning
bidder provides a certificate that (A) lists all adminis-
trative costs reasonably expected to be paid by the
provider to third parties in connection with the contract,
(B) states that the yield is not less than the yield
currently available on comparable investment contracts when
the source of funds is not tax-exempt proceeds , and
(C) states that the draw-down schedule was a significant
factor in the determination of the yield on the contract;
(iii) the yield on the investment contract is at least
equal to the yield offered under the highest bid received
from a noninterested party who was a qualified bidder; and
(iv) based on all the facts and circumstances, the
collateral security requirements were reasonable. 'Certain
short-term investment contracts, publicly-traded investment
contracts and investment contracts yielding less than the
bond yield by more than 25 basis points (excluding such
contracts entered into for the purpose of offsetting
arbitrage earned or to be earned on other investments of
gross proceeds of an issue) are excluded from these
requirements .
(c) Investments Traded on Established Market . For
other investments, traded on an established market, the fair
market value of the investment will be the actual price at
which the investments are sold by a willing seller to a
willing buyer . When an actual transaction does not occur,
the fair market price shall be the mean between the bid and
asked prices for such obligations on the date the
investment is deemed to become, or ceases to be, proceeds
of the issue.
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Where amounts must be restricted to a certain yield and
investments cannot be purchased on an established market or a
bona fide fair market price cannot be established at a yield
that does not exceed the maximum permissible yield, the
District may acquire or hold tax-exempt securities, currency,
or United States Treasury Certificates of Indebtedness, Notes
and Bonds -- State and Local Government . Series ("SLGs" ) that
yield no more than the maximum permissible yield. The District
recognizes that SLGs are available at the Federal Reserve Bank,
and that, under current Treasury Department Regulations
governing SLGs, SLGs may not be purchased until 15 calendar
days (3 business days in the case of demand deposit SLGs) after
a subscription for them is tendered and received by a Federal
Reserve Bank or Branch. Accordingly, the City agrees that it
will act promptly in subscribing for SLGs in the event it is
determined that such restricted investments are necessary.
PART B. Rebate Requirement .
1 . In General . (a) Section 148(f) of the Code requires
that an amount equal. to the sum of (i) the excess of the
aggregate amount earned on all Nonpurpose Investments over the
amount that would have been earned if such Nonpurpose .
Investments had a yield equal to the yield on the Certificates ,
plus (ii) any income attributable to the excess described in
(i) , be paid to the United States Treasury (the "Rebate .
Requirement") . We shall comply with the Rebate Requirement, as
set forth in Sections 1 . 148-0 through 1. 148-11 and Sections
1. 150-0 and 1 . 150-1 of the Treasury Regulations and Sections
1 . 148-12T through 1. 148-13T of the Proposed and Temporary
Treasury Regulations (collectively, the "Rebate Regulations" ) .
(b) Recordkeeping . With respect to all Nonpurpose
Investments acquired in any fund or account we. shall record or
cause to be recorded the following information: (i) purchase
date, (ii) purchase price, (iii) information establishing that
the purchase price is the fair market value as of such date
(e.g . , the published quoted bid by a dealer in such an
investment on the date of purchase) , (iv) any accrued interest
paid, (v) face amount, (vi) coupon rate, (vii) periodicity of
interest payments, (viii) disposition price, (ix) any accrued
interest received, and (x) disposition date. To the extent any
investment becomes a Nonpurpose Investment by becoming Gross
Proceeds after it was originally purchased, it shall be treated
as if it were acquired at its fair market value at the time it
becomes a Nonpurpose Investment .
(c) . Earnings on Debt Service Funds . Because the Certifi-
cates are not private activity bonds within the meaning of
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Section 141 of the Code and because the Certificates have an
average maturity of at least five years and interest rates that
do not vary over the term of the Certificates , investment
earnings on amounts (other than proceeds derived from the sale
of the Certificates) in the Certificate Payment Fund shall not
be taken into account for purposes of complying with the Rebate
Requirement .
(d) Payment ; Retention of Records . Amounts determined to
be required to be paid to the United States in compliance with
the Rebate Requirement shall be paid to the United States in
accordance with the rules set' forth in the Rebate Regulations .
Records of all determinations made hereunder shall be retained
until six years after the retirement of the last obligation of
the Certificates .
2 . Engagement of Experts . The City expects to make
calculations necessary to comply with the Rebate Requirement,
as set forth in Section 148 (f) of the Code and the Rebate
Regulations . In the event that the City does not make such
calculations , the City will, at least one month prior to the
date on which the next calculation of "rebatable arbitrage" (as
defined in Section 1 . 48-2T of the Rebate Regulations) is
required to be made, engage a firm competent to perform the
calculations necessary to comply with the Rebate Requirement,
as set forth in Section 148(f) of the Code and the Rebate
Regulations .
PART C. Amendment .
In order to comply with the covenants regarding compliance
with the requirements of the Code and the exclusion from gross
income of interest paid and to be paid on the Certificates, the
procedures described in these Guidelines may be modified as
necessary, without the consent of Certificate Owners, and based
on the opinion of nationally recognized bond counsel acceptable
to the City, to comply with regulations , rulings , legislation
or judicial decisions as may be applicable to the Certifi-
cates . Neither the City nor any of its members, agents,
officers or employees shall be liable to any person for any
action taken or for its failure to take any action in
connection with these Guidelines . The City may rely
conclusively on the advice of its bond counsel with respect
hereto .
Dated: June 1993
CITY OF DUBLIN
By:
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