HomeMy WebLinkAboutMINUTES - 11102009 - C.67RECOMMENDATION(S):
ADOPT Resolution No. 2009/531 authorizing on behalf of the West Contra Costa Unified
School District, the sale and issuance of General Obligation Bonds, Election of 2005, Series
D, in an aggregate principal amount not to exceed $30,000,000.
FISCAL IMPACT:
There is no fiscal impact to the County.
BACKGROUND:
Under state law, the Contra Costa County Board of Supervisors is required to authorize the
sale and issuance of General Obligation bonds for school districts within the County. No
financial obligation is assumed with these authorizations.
The School District is issuing these bonds on authority granted by voter approval on
November 8, 2005.
CONSEQUENCE OF NEGATIVE ACTION:
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 11/10/2009 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Gayle B. Uilkema, District II
Supervisor
Mary N. Piepho, District III Supervisor
Susan A. Bonilla, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Lisa Driscoll, County Finance
Director 335-1023
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes
of the Board of Supervisors on the date shown.
ATTESTED: November 10, 2009
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: EMY L. SHARP, Deputy
cc: Lisa Driscoll, County Finance Director, Brice Bins, Assistant County Treasurer, Marie Rulloda, Special Accounting, Kerrigan Bennett, Stradling Yocca
Carlson & Rauth
C.67
To:Board of Supervisors
From:David Twa, County Administrator
Date:November 10, 2009
Contra
Costa
County
Subject:WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT GENERAL OBLIGATION BONDS
Without the Contra Costa County Board of Supervisors authorization, the School District
would not be able to issue the bonds, thereby delaying or preventing the implementation of
projects approved by voters.
ATTACHMENTS
WCCUSD Body of Resolution No. 2009-531
WCCUSD Paying Agent and Transfer Agent
Agreement
WCCUSD Purchase Contract
WCCUSD District Resolution
DOCSSF/74918v4/022000-0001
PAYING AGENT AND TRANSFER AGENT AGREEMENT
among the
WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT,
TREASURER-TAX COLLECTOR OF THE
COUNTY OF CONTRA COSTA, CALIFORNIA,
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Paying Agent
Dated as of December 1, 2009
Relating to the
$__________
WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT
GENERAL OBLIGATION BONDS, ELECTION OF 2005, SERIES D-1,
QUALIFIED SCHOOL CONSTRUCTION BONDS
(TAX CREDIT BONDS)
Table of Contents
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS .......................................................................................................................................2
ARTICLE II
THE BONDS
SECTION 2.01 AUTHORIZATION; DATE; PAYMENT OF PRINCIPAL; DENOMINATIONS ..............................................11
SECTION 2.02 FORM AND REGISTRATION OF BONDS ...............................................................................................12
SECTION 2.03 EXECUTION AND AUTHENTICATION OF BONDS.................................................................................12
SECTION 2.04 BOOK-ENTRY SYSTEM......................................................................................................................12
SECTION 2.05 TRANSFER OF BONDS THAT ARE NOT BOOK-ENTRY BONDS, OR UPON TERMINATION OF BOOK-
ENTRY SYSTEM................................................................................................................................14
SECTION 2.06 EXCHANGE OF BONDS ......................................................................................................................14
SECTION 2.07 BOND REGISTER ...............................................................................................................................14
SECTION 2.08 MUTILATED, DESTROYED, STOLEN OR LOST BONDS ........................................................................15
SECTION 2.09 TEMPORARY BONDS .........................................................................................................................15
ARTICLE III
ISSUANCE OF BONDS
SECTION 3.01 DELIVERY OF BONDS ........................................................................................................................15
SECTION 3.02 APPLICATION OF PROCEEDS OF SALE OF THE BONDS........................................................................15
SECTION 3.03 ISSUANCE OF ADDITIONAL SERIES OF BONDS ...................................................................................16
ARTICLE IV
REDEMPTION
SECTION 4.01 TERMS OF REDEMPTION OF THE SERIES D-1 BONDS AND THE SERIES D-1 BONDS TAX CREDIT
CERTIFICATES ..................................................................................................................................16
ARTICLE V
PAYMENT OF BONDS
SECTION 5.01 ESTABLISHMENT AND MAINTENANCE OF DEBT SERVICE FUND .......................................................20
SECTION 5.02 ESTABLISHMENT AND APPLICATION OF BOND PAYMENT FUND .......................................................20
SECTION 5.03 REBATE FUND ..................................................................................................................................20
ARTICLE VI
STRIPPING OF THE TAX CREDITS
SECTION 6.01 TAX CREDIT STRIPPING PERMITTED; DATE; DENOMINATIONS .........................................................22
SECTION 6.02 FORM AND REGISTRATION OF SERIES D-1 BONDS TAX CREDIT CERTIFICATES ................................22
SECTION 6.03 EXECUTION AND AUTHENTICATION OF TAX CREDIT CERTIFICATES .................................................22
SECTION 6.04 BOOK-ENTRY SYSTEM FOR TAX CREDIT CERTIFICATES...................................................................23
SECTION 6.05 TRANSFER OF TAX CREDIT CERTIFICATES THAT ARE NOT BOOK-ENTRY TAX CREDIT CERTIFICATES,
OR UPON TERMINATION OF BOOK-ENTRY SYSTEM ..........................................................................24
SECTION 6.06 EXCHANGE OF TAX CREDIT CERTIFICATES ......................................................................................25
SECTION 6.07 TAX CREDIT CERTIFICATE REGISTER ...............................................................................................25
SECTION 6.08 MUTILATED, DESTROYED, STOLEN OR LOST TAX CREDIT CERTIFICATES ........................................25
Table of Contents
(continued)
Page
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DOCSSF/74918v4/022000-0001
SECTION 6.09 TEMPORARY TAX CREDIT CERTIFICATES .........................................................................................25
ARTICLE VII
COVENANTS OF THE DISTRICT AND THE COUNTY
SECTION 7.01 OBLIGATION TO LEVY TAXES FOR PAYMENT OF BONDS; SINKING FUND DEPOSITS ........................26
SECTION 7.02 VALIDITY OF BONDS.........................................................................................................................26
SECTION 7.03 FURTHER ASSURANCES ....................................................................................................................26
SECTION 7.04 TAX COVENANTS OF THE DISTRICT ..................................................................................................27
SECTION 7.05 TAX COVENANTS OF THE COUNTY ...................................................................................................27
SECTION 7.06 CONTINUING DISCLOSURE COVENANT .............................................................................................27
ARTICLE VIII
THE PAYING AGENT
SECTION 8.01 APPOINTMENT; ACCEPTANCE ...........................................................................................................28
SECTION 8.02 RESIGNATION, REMOVAL, REPLACEMENT OF PAYING AGENT ..........................................................28
SECTION 8.03 ACCOUNTING RECORDS ....................................................................................................................29
SECTION 8.04 MERGER OR CONSOLIDATION ...........................................................................................................29
SECTION 8.05 PROTECTION OF PAYING AGENT .......................................................................................................29
SECTION 8.06 RELIANCE ON DOCUMENTS, ETC......................................................................................................29
SECTION 8.07 RECITALS OF DISTRICT .....................................................................................................................31
SECTION 8.08 PAYING AGENT MAY OWN BONDS ...................................................................................................31
SECTION 8.09 INVESTMENT OF FUNDS AND ACCOUNTS; MONEY HELD BY PAYING AGENT; UNCLAIMED MONIES 31
SECTION 8.10 OTHER TRANSACTIONS.....................................................................................................................32
SECTION 8.11 INTERPLEADER .................................................................................................................................32
SECTION 8.12 PAYMENT; INDEMNIFICATION ...........................................................................................................32
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 AMENDMENT, MODIFICATION, WAIVER ...........................................................................................32
SECTION 9.02 NOTICES ...........................................................................................................................................33
SECTION 9.03 GOVERNING LAW; PROCEDURE IN CASE OF DEFAULT ......................................................................33
SECTION 9.04 COUNTERPARTS ................................................................................................................................33
EXHIBIT A – FORM OF TAX CREDIT BOND................................................................................................A-1
EXHIBIT B – FORM OF TAX CREDIT STRIP REQUEST..............................................................................B-1
EXHIBIT C – FORM OF TAX CREDIT CERTIFICATE EXPIRATION NOTICE TO DTC ..........................C-1
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PAYING AGENT AND TRANSFER AGENT AGREEMENT
This PAYING AGENT AND TRANSFER AGENT AGREEMENT, dated as of
December 1, 2009 (the “Agreement”), among THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., a national banking association duly organized and existing under the laws of the
United States of America, as paying agent and transfer agent (the “Paying Agent”), the WEST
CONTRA COSTA UNIFIED SCHOOL DISTRICT, a school district duly organized and existing
under and by virtue of the Constitution and laws of the State of California (the “District”), and the
TREASURER-TAX COLLECTOR OF THE COUNTY OF CONTRA COSTA, CALIFORNIA,
acting in its official capacity as ex officio treasurer of the District (the “County”),
W I T N E S S E T H:
WHEREAS, a duly called election was held in the West Contra Costa Unified School District
(the “District”), County of Contra Costa (the “County”), State of California, on November 8, 2005
(the “Election”) and thereafter canvassed pursuant to law;
WHEREAS, at such election there was submitted to and approved by the requisite 55% vote
of the qualified electors of the District a question as to the issuance and sale of general obligation
bonds of the District for various purposes set forth in the ballot submitted to the voters, in the
maximum amount of $400,000,000, payable from the levy of an ad valorem tax against the taxable
property in the District (the “Authorization”);
WHEREAS, on May 17, 2006, the Board of Supervisors of the County issued in the name of
the District $70,000,000 aggregate principal amount of a first series of bonds under the Authorization
styled as the “West Contra Costa Unified School District (Contra Costa County, California) General
Obligation Bonds, Election of 2005, Series A” (the “Series A Bonds”);
WHEREAS, on July 15, 2008, the Board of Supervisors of the County issued in the name of
the District $120,000,000 aggregate principal amount of a second series of bonds under the
Authorization styled as the “West Contra Costa Unified School District (Contra Costa County,
California) General Obligation Bonds, Election of 2005, Series B” (the “Series B Bonds”);
WHEREAS, on September 3, 2009, the Board of Supervisors of the County issued in the
name of the District $52,084,759.30 aggregate principal amount of a third series of bonds under the
Authorization styled as the “West Contra Costa Unified School District (Contra Costa County,
California) 2009 General Obligation Bonds, Election of 2005, Series C-1” (the “Series C-1 Bonds”)
and $52,825,000 aggregate principal amount of a fourth series of bonds under the Authorization
styled as the “West Contra Costa Unified School District (Contra Costa County, California) 2009
General Obligation Bonds, Election of 2005, Series C-2” (the “Series C-2 Bonds”);
WHEREAS, at this time this Board of Education (the “Board”) has determined that it is
necessary and desirable to request the Board of Supervisors of the County to issue one or more
additional series of such bonds in an aggregate principal amount not-to-exceed $30,000,000 to be
styled as the “West Contra Costa Unified School District (Contra Costa County, California) General
Obligation Bonds, Election of 2005, Series D” (the “Series D Bonds”) on behalf of the District;
WHEREAS, the American Recovery and Reinvestment Act of 2009 grants a national
allocation of $11 billion to provide for the issuance of qualified school construction bonds, in
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accordance with the qualified tax credit bond program (the “Tax Credit Program”) found in Section
54A of the Internal Revenue Code of 1986, as amended (the “Code”), and $25,000,000 of said
allocation has been granted to the District (the “District Allocation”) to provide financing for the
construction, reconstruction or repair of public school facilities, or the acquisition of land on which
such facilities are to be constructed or equipment to be used in such portion or portions of the public
school facilities that are to be constructed with part of the proceeds of such issue; and
WHEREAS, the District has determined that it is in its best interests to use all or a portion of
the District Allocation to issue and sell a portion of its Series D Bonds as a separate series pursuant to
the Tax Credit Program designated as the West Contra Costa Unified School District General
Obligation Bonds, Election of 2005, Series D-1, Qualified School Construction Bonds (Tax Credit
Bonds) (the “Series D-1 Bonds,” or together with any other Series D Bonds issued under this
Agreement, the “Tax Credit Bonds”) in order to finance improvements to school facilities permitted
by the Tax Credit Program and the Authorization (the “Project”) and to pay costs of issuance of the
Series D-1 Bonds; and
WHEREAS, the District has further determined that it is in its best interest to provide for the
separation of the ownership of the Series D-1 Bonds from the entitlement to the tax credits (the “Tax
Credits”) with respect to such Series D-1 Bonds pursuant to the Tax Credit Program, and for the sale
of instruments evidencing the Tax Credits (the “Tax Credit Certificates”); and
WHEREAS, the County shall provide for the payment of the principal of and interest on the
Bonds by the levy and collection of taxes upon all property in the District subject to taxation by the
District without limitation of rate or amount as provided by law, and shall deposit or cause to be
deposited such taxes with the Paying Agent to provide for the payment of the Bonds;
WHEREAS, the District has determined that all acts, conditions and things required by law to
exist, to have happened and to have been performed precedent to and in connection with the
execution and entering into of this Agreement do exist, have happened and have been performed in
regular and due time, form and manner as required by law, and the parties hereto are now duly
authorized to execute and enter into this Agreement;
NOW, THEREFORE, in order to provide for the terms and the payment of the Bonds and the
performance and observance by the District and the County of all the covenants, agreements and
conditions herein and in the Bonds and the Tax Credit Certificates contained, and in consideration of
the mutual covenants and agreements contained herein, and for other valuable consideration, the
District, the County and the Paying Agent hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Unless the context otherwise requires, the terms defined in this
Section 1.01 shall, for all purposes hereof and of any amendment hereof or supplement hereto and of
the Bonds and of any certificate, opinion, request or other document mentioned herein or therein,
have the meanings defined herein, the following definitions to be equally applicable to both the
singular and plural forms of any of the terms defined herein:
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“Accountable Event of Loss of Qualified School Construction Bond Status” means (a) any
act or any failure to act on the part of the District or the County, which act or failure to act is a breach
of a covenant or agreement of the District or the County contained in the District Resolution, the
County Resolution, this Agreement, the Tax Certificate or the Bonds and which act or failure to act
causes the Bonds to lose their status, or fail to qualify, as Qualified School Construction Bonds, or
(b) the making by the District or the County of any representation contained in the District
Resolution, the County Resolution, this Agreement, the Tax Certificate or the Bonds, which
representation was untrue when made and the untruth of which representation at such time causes the
Bonds to lose their status, or fail to qualify, as Qualified School Construction Bonds.
“Agreement” means this Paying Agent and Transfer Agent Agreement, dated as of
December 1, 2009, among the Paying Agent, the County and the District, as the same may be
supplemented, modified or amended in accordance with its terms.
“Authorized District Representative” means the Superintendent of the District, the Assistant
Superintendent, Business Services, the Executive Director, Business Services or a designated deputy
thereof.
“Authorized County Representative” means the Treasurer, any designee of the Treasurer, or
any other officer of the County designated by the Board of Supervisors.
“Authorized Denomination” means, with respect to the Series D-1 Bonds, $40,000 or any
integral multiple thereof, and with respect to any other Series of Bonds, such denomination as shall
be set forth in a Supplemental Agreement.
“Board of Supervisors” means the Board of Supervisors of the County of Contra Costa.
“Board of Education” means the Board of Education of the West Contra Costa Unified
School District.
“Bonds” or “Tax Credit Bonds” mean the Series D-1 Bonds, and any general obligation
bonds authorized under the Authorization and issued as Qualified School Construction Bonds
hereunder.
“Bond Payment Date” means the Bond Payment Date or dates for any Bonds set forth in a
Supplemental Agreement.
“Bond Payment Fund” means the fund established by that name pursuant to Section 5.02 of
this Agreement.
“Book-Entry Bonds” means Bonds of any Series registered in the name of the Nominee of a
Depository as the owner thereof pursuant to the terms and provisions of Section 2.04 this Agreement.
“Book-Entry Tax Credit Certificates” means Tax Credit Certificates related to any Series of
Bonds registered in the name of the Nominee of a Depository as the owner thereof pursuant to the
terms and provisions of Section 6.04 this Agreement.
“Business Day” means any day other than a Saturday, Sunday, legal holiday or other day on
which banking institutions in San Francisco or Los Angeles, California, or New York, New York, or
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any state in which the Principal Corporate Trust Office of the Paying Agent is located, are authorized
or required by law to close, or any day on which the New York Stock Exchange is closed.
“Continuing Disclosure Certificate” means the Continuing Disclosure Certificate with respect
to the Series D-1 Bonds and any continuing disclosure agreement entered into in connection with a
Series of Bonds, as originally executed and as it may be amended from time to time in accordance
with the terms thereof.
“Code” means the Internal Revenue Code of 1986, as amended, and as the same shall be
hereafter amended, and any regulations heretofore issued or which shall be hereafter issued by the
United States Department of the Treasury thereunder.
“Comparable Treasury Issue” means the U.S. Treasury security or securities selected by the
Designated Investment Banker which has an actual or interpolated maturity comparable to the
remaining average life, as of the redemption date, of the Bonds to be redeemed, and that would be
utilized in accordance with customary financial practice in pricing new issues of debt securities of
comparable maturity to the remaining average life, as of the redemption date, of the Tax Credit Bond
to be redeemed.
“Comparable Treasury Price” means (a) if the Designated Investment Banker receives at least
four Reference Treasury Dealer Quotations, the average of such quotations for the date on which
such Bonds are to be redeemed, after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (b) if the Designated Investment Banker obtains fewer than four Reference Treasury
Dealer Quotations, the average of all such quotations.
“Costs of Issuance” means all items of expense directly or indirectly payable by or
reimbursable to District and related to the authorization, issuance, sale and delivery of a Series of
Bonds, including but not limited to costs of preparation and reproduction of documents, printing
expenses, filing and recording fees, initial fees and charges of the Paying Agent, underwriting fees,
legal fees and charges, fees and disbursements of consultants and professionals, rating agency fees,
fees and expenses related to any credit enhancement (including without limitation bond insurance)
for the Bonds, fees and expenses with respect to the conduct of the election and other proceedings
authorizing the issuance of the Bonds, fees and charges for preparation, execution and safekeeping of
the Bonds and any other cost, charge or fee in connection with the original issuance of the Bonds.
“County” means the County of Contra Costa, California.
“County Resolution” means a resolution of the Board of Supervisors authorizing the issuance
of a Series of Bonds, including the Series D-1 Bonds County Resolution.
“Date of Loss of Qualified School Construction Bond Status” means the date specified in a
Determination of Loss of Qualified School Construction Bond Status as the date from and after
which the Bonds lost their status, or failed to qualify, as Qualified School Construction Bonds as a
result of an Accountable Event of Loss of Qualified School Construction Bond Status, which date
could be as early as the date of issuance of the Bonds.
“Debt Service Fund” means the Debt Service Fund of the District administered by the
Treasurer, established pursuant to the Education Code and the County Resolution.
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“Depository” means the securities depository acting as Depository pursuant to Section 2.04
of this Agreement.
“Designated Investment Banker” means one of the Reference Treasury Dealers designated by
the District.
“Determination of Loss of Qualified School Construction Bond Status” means (a) a final
determination by the Internal Revenue Service (after the District has exhausted all administrative
appeal remedies) determining that an Accountable Event of Loss of Qualified School Construction
Bond Status has occurred and specifying the Date of Loss of Qualified School Construction Bond
Status, or (b) a non-appealable holding by a court of competent jurisdiction holding that an
Accountable Event of Loss of Qualified School Construction Bond Status has occurred and
specifying the Date of Loss of Qualified School Construction Bond Status.
“District” means the West Contra Costa Unified School District, located in the County.
“District Resolution” means a resolution of the Board of Education authorizing the issuance
of a Series of Bonds, including the Series D-1 Bonds District Resolution.
“Education Code” means the Education Code of the State of California, as the same shall be
hereafter amended.
“Fitch” means Fitch Ratings, and its successors and assigns, except that if such entity shall be
dissolved or liquidated or shall no longer perform the functions of a securities rating agency, then the
term “Fitch” shall be deemed to refer to any other nationally recognized securities rating agency
selected by the District.
“Insurer” means any issuer of a bond insurance policy guaranteeing the payment when due of
the principal of and interest on a Series of Bonds.
“Investment Securities” means:
(i) any bonds or other obligations which as to principal and interest constitute direct
obligations of, or are unconditionally guaranteed as to full and timely payment by, the United States
of America, including obligations of any of the federal agencies and federally sponsored entities set
forth in clause (iii) below to the extent unconditionally guaranteed by the United States of America
and including interest strips of any such obligations or of bonds issued by the Resolution Funding
Corporation and held in book-entry form by the Federal Reserve Bank of New York;
(ii) any certificates, receipts, securities or other obligations evidencing ownership of, or
the right to receive, a specified portion of one or more interest payments or principal payments, or
any combination thereof, to be made on any bond, note, or other obligation described above in
clause (i);
(iii) obligations of the Fannie Mae Corporation, the Government National Mortgage
Association, Farm Credit System Financial Corporation, Federal Home Loan Banks, Federal Home
Loan Mortgage Corporation, Tennessee Valley Authority, Washington Metropolitan Area Transit
Authority, United States Import-Export Bank, United States Department of Housing and Urban
Development, Farmers Home Administration, General Services Administration and United States
Maritime Administration;
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(iv) housing authority bonds issued by public agencies or municipalities and fully secured
as to the payment of both principal and interest by a pledge of annual contributions under an annual
contributions contract or contracts with the United States of America; or project notes issued by
public agencies or municipalities and fully secured as to the payment of both principal and interest by
a requisition or payment agreement with the United States of America;
(v) obligations of any state, territory or commonwealth of the United States of America
or any political subdivision thereof or any agency or department of the foregoing; provided that such
obligations are rated in the highest Rating Category by Moody’s and Standard & Poor’s;
(vi) any bonds or other obligations of any state of the United States of America or any
political subdivision thereof (a) which are not callable prior to maturity or as to which irrevocable
instructions have been given to the Paying Agent of such bonds or other obligations by the obligor to
give due notice of redemption and to call such bonds for redemption on the date or dates specified in
such instructions, (b) which are secured as to principal and interest and redemption premium, if any,
by a fund consisting only of cash or bonds or other obligations of the character described above in
clause (i) or (ii) which fund may be applied only to the payment of such principal of and interest and
redemption premium, if any, on such bonds or other obligations on the bond payment dates and the
maturity date or dates thereof or the specified redemption date or dates pursuant to such irrevocable
instructions, as appropriate, (c) as to which the principal of and interest on the bonds and obligations
of the character described above in clause (i) or (ii) which have been deposited in such fund along
with any cash on deposit in such fund are sufficient to pay the principal of and interest and
redemption premium, if any, on the bonds or other obligations described in this clause (vi) on the
Bond Payment Dates and the maturity date or dates thereof or on the redemption date or dates
specified in the irrevocable instructions referred to in subclause (a) of this clause (vi), as appropriate,
and (d) which are rated in the highest long-term Rating Category by Moody’s and Standard &
Poor’s;
(vii) demand or time deposits or certificates of deposit, whether negotiable or
nonnegotiable, trust funds, trust accounts, interest-bearing deposits, overnight bank deposits, interest-
bearing money market accounts or bankers acceptances issued by any bank or trust company
(including, without limitation, the Paying Agent or any of its affiliates) organized under the laws of
any state of the United States of America or any national banking association (including the Paying
Agent or any of its affiliates) or by a state licensed branch of any foreign bank, provided that such
certificates of deposit shall be purchased directly from such a bank, trust company, national banking
association or branch and shall be either (1) continuously and fully insured by the Federal Deposit
Insurance Corporation, or (2) continuously and fully secured by such securities and obligations as are
described above in clauses (i) through (v), inclusive, which shall have a market value (exclusive of
accrued interest) at all times at least equal to the principal amount of such certificates of deposit and
shall be lodged with the Paying Agent or third-party agent, as custodian, by the bank, trust company,
national banking association or branch issuing such certificates of deposit, and the bank, trust
company, national banking association or branch issuing each such certificate of deposit required to
be so secured shall furnish the Paying Agent with an undertaking satisfactory to it that the aggregate
market value of all such obligations securing each such certificate of deposit will at all times be an
amount equal to the principal amount of each such certificate of deposit and the Paying Agent shall
be entitled to rely on each such undertaking;
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(viii) taxable commercial paper or tax-exempt commercial paper rated in the highest Rating
Category by Moody’s and Standard & Poor’s which matures not more than 270 calendar days after
the date of purchase;
(ix) variable rate obligations required to be redeemed or purchased by the obligor or its
agent or designee upon demand of the holder thereof secured as to such redemption or purchase
requirement by a liquidity agreement with a corporation and as to the payment of interest and
principal either upon maturity or redemption (other than upon demand by the holder thereof) thereof
by an unconditional credit facility of a corporation, provided that the variable rate obligations
themselves are rated in the highest short-term Rating Category, if any, and in the highest long-term
Rating Category, if any, by Moody’s and Standard & Poor’s, and that the corporations providing the
liquidity agreement and credit facility have, at the date of acquisition of the variable rate obligations
by the Paying Agent, an outstanding issue of unsecured, uninsured and unguaranteed debt obligations
rated in the highest long-term Rating Category by Moody’s and Standard & Poor’s;
(x) any repurchase or reverse-repurchase agreement approved by the District and the
County which does not cause the rating on the Bonds to be reduced or withdrawn, or entered into
with a financial institution (including, without limitation, the Paying Agent or any of its affiliates) or
insurance company which has at the date of execution thereof an outstanding issue of unsecured,
uninsured and unguaranteed debt obligations or a claims paying ability rated (or the parent company
of which is rated) in the highest long-term Rating Category by Moody’s and Standard & Poor’s,
which agreement is secured by any one or more of the securities and obligations described in clauses
(i), (ii), (iii) or (iv) above, which shall have a market value (exclusive of accrued interest and valued
at least weekly) at least equal to one hundred three percent (103%) of the principal amount of such
investment and shall be lodged with the Paying Agent or other fiduciary or agent, as custodian, by
the provider executing such repurchase agreement, and the provider executing each such repurchase
agreement required to be so secured shall furnish the Paying Agent with an undertaking satisfactory
to the Paying Agent that the aggregate market value of all such obligations securing each such
repurchase agreement (as valued at least weekly) will be an amount equal to one hundred three
percent (103%) of the principal amount of each such repurchase agreement and the Paying Agent
shall be entitled to rely on each such undertaking;
(xi) any cash sweep or similar account arrangement of or available to the Paying Agent,
the investments of which are limited to investments described in clauses (i), (ii), (iii), (iv), (v) and (x)
of this definition of Investment Securities and any money market fund including money market
mutual funds having a rating in the highest investment category granted thereby from Standard &
Poor’s and Moody's, including, without limitation any mutual fund for which the Paying Agent or an
affiliate of the Paying Agent serves as investment manager, administrator, shareholder servicing
agent, and/or custodian or subcustodian, notwithstanding that (i) the Paying Agent or an affiliate of
the Paying Agent receives fees from funds for services rendered, (ii) the Paying Agent collects fees
for services rendered pursuant to this Indenture, which fees are separate from the fees received from
such funds, and (iii) services performed for such funds and pursuant to this Agreement may at times
duplicate those provided to such funds by the Paying Agent or an affiliate of the Paying Agent;
provided that as used in this clause (xi) and clause (xii) investments will be deemed to satisfy the
requirements of clause (x) if they meet the requirements set forth in clause (x) ending with the words
“clauses (i), (ii), (iii) or (iv) above” and without regard to the remainder of such clause (x);
(xii) any investment agreement with, or the obligations under which are guaranteed by, a
financial institution or insurance company or domestic or foreign bank which has at the date of
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execution thereof an outstanding issue of unsecured, uninsured and unguaranteed debt obligations or
a claims paying ability rated in the highest long-term Rating Category by Moody’s and Standard &
Poor’s, approved by the District and the County and which does not cause the rating on the Bonds to
be reduced or withdrawn;
(xiii) the County of Contra Costa Investment Pool;
(xiv) the Local Agency Investment Fund or similar pooled fund operated by or on behalf of
the State of California and which is authorized to accept investments of moneys held in any of the
funds or accounts established pursuant to this Agreement;
(xv) commercial paper having, at the time of investment or contractual commitment to
invest therein, a rating from Standard & Poor’s and Moody’s in the highest rating category granter
thereby; and
(xvi) any other investment approved by the District and the County which does not cause
the rating on the Bonds to be reduced or withdrawn.
“Moody’s” means Moody’s Investors Service, a corporation duly organized and existing
under and by virtue of the laws of the State of Delaware, and its successors and assigns, except that if
such corporation shall be dissolved or liquidated or shall no longer perform the functions of a
securities rating agency, then the term “Moody’s” shall be deemed to refer to any other nationally
recognized securities rating agency selected by the District.
“Nominee” shall mean the nominee of the Depository, which may be the Depository, as
determined from time to time pursuant to Section 2.04 of this Agreement.
“Opinion of Counsel” means a written opinion of counsel of recognized national standing in
the field of law relating to municipal bonds, appointed and paid by the District.
“Owner” means, with respect to Bonds, the person in whose name any Bond shall be
registered, and, with respect to Tax Credit Certificates, the person in whose name any Tax Credit
Certificate shall be registered.
“Paying Agent” means The Bank of New York Mellon Trust Company, N.A., which has
been appointed to act as paying agent, registrar, and transfer agent with respect to the Bonds, its
successors and assigns and any other corporation or association which may at any time be substituted
in its place as provided in Section 7.02 hereof.
“Principal Component” means any Bond, the Tax Credits related to which have been
separated therefrom pursuant to Article VI of this Agreement.
“Principal Corporate Trust Office” means, unless otherwise specifically noted, any reference
to the “principal corporate trust office” of the Paying Agent for purposes of transfer, registration,
exchange, payment, and surrender of the Bonds shall mean in care of the corporate trust office of The
Bank of New York Mellon Trust Company, N.A., in Los Angeles, California, and for all other
purposes shall mean the corporate trust office of the Paying Agent in Los Angeles, California;
provided, however, that in any case “principal corporate trust office” shall mean any other office of
the Paying Agent designated for a particular purpose, and shall include the principal corporate trust
office or other designated office of any successor paying agent.
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“Principal Payment Date” means, with respect to the Series D-1 Bonds, _________ 15 of
each year specified in Section 2.01 hereof and such other date or dates as may be set forth in a
Supplemental Agreement with respect to a Series of Bonds.
“Project” means the school facilities improvements authorized by voters of the District under
the Authorization and permitted under the Tax Credit Program.
“Building Fund” means the Building Fund of the District administered by the Treasurer,
established pursuant to the Education Code and the County Resolution.
“Authorization” means the Authorization approved by voters at the election held in the
District, on November 8, 2005, pursuant to Section 15100 and following of the Education Code
authorizing the issuance of the Bonds.
“Qualified School Construction Bond” means a “qualified school construction bond,” as
defined in Section 54F of the Code.
“Rating Category” means: (i) with respect to any long-term rating category, all ratings
designated by a particular letter or combination of letters, without regard to any numerical modifier,
plus or minus sign or other modifier, and (ii) with respect to any short-term or commercial paper
rating category, all ratings designated by a particular letter or combination of letters and taking into
account any numerical modifier, but not any plus or minus sign or other modifier.
“Rebate Fund” shall mean the fund by that name established pursuant to Section 5.03.
“Rebate Instructions” shall mean those calculations and directions required to be delivered to
the Paying Agent under the Tax Certificate.
“Rebate Requirement” shall mean the Rebate Requirement for a Series of Bonds defined in
the Tax Certificate related to such Series of Bonds.
“Record Date” means the fifteenth day prior to a Bond Payment Date, whether or not such
day is a Business Day.
“Redemption Date” means the date on which the Bonds or any of them are called for
redemption, as provided in Article IV hereof.
“Redemption Premium” means, with respect to the Series D-1 Bonds, as calculated by the
District (or, at the District’s option, its Designated Investment Banker), the greater of (x) zero and (y)
an amount calculated as (a) the sum of the present values of the remaining scheduled payments of
principal of and Tax Credits related to the Series D-1 Bonds called for redemption (exclusive of
interest accrued to the Redemption Date) discounted to the Redemption Date on a semiannual basis
(assuming a 360-day year consisting of 12 months of 30 days each) at a rate per annum equal to the
Treasury Rate, minus (b) the principal amount of the Series D-1 Bonds called for redemption.
“Reference Treasury Dealer” means the original underwriters of the Bonds, their successors
and other firms, as specified by the District from time to time, that are primary U.S. government
securities dealers in the City of New York, New York; provided, however, that if any such firm
ceases to be such a primary treasury dealer, the District will substitute another primary treasury
dealer for such firm.
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“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer, the average, as determined by the Designated Investment Banker, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Designated Investment Banker by such Reference Treasury Dealer at 3:30
p.m., New York City time, on the third business day preceding the date on which such Bonds are to
be redeemed.
“Registration Books” means the records maintained by the Paying Agent for the registration
of ownership and registration of transfer of the Bonds and the Tax Credit Certificates pursuant to
Sections 2.07 and 6.07, respectively, of this Agreement.
“Series” means, whenever used herein with respect to Bonds, all of the Bonds designated as
being of the same series, regardless of variations in maturity, interest rate and other provisions.
“Series D-1 Bonds” means the West Contra Costa Unified School District General Obligation
Bonds, Election of 2005, Series D-1, Qualified School Construction Bonds (Tax Credit Bonds)
authorized to be issued pursuant to the Authorization approved by voters of the District on
November 8, 2005.
“Series D-1 Bonds County Resolution” means the resolution, adopted by the Board of
Supervisors on ______________, 2009, authorizing the issuance of the Series D-1 Bonds
“Series D-1 Bonds Continuing Disclosure Certificate” means the Continuing Disclosure
Certificate executed by the District.
“Series D-1 Bonds District Resolution” means the resolution of the Board of Education
adopted on November 4, 2009 authorizing the issuance of the Series D-1 Bonds
“Series D-1 Bonds Principal Components” means the Principal Components of the
Series D-1 Bonds.
“Series D-1 Bonds Tax Credit Certificates” means the Tax Credit Certificates designated as
“Certificates Evidencing Tax Credit Entitlement related to the West Contra Costa Unified School
District General Obligation Bonds, Election of 2005, Series D-1, Qualified School Construction
Bonds (Tax Credit Bonds),” executed and delivered in accordance with Article VI of this Agreement.
“Standard & Poor’s” means Standard & Poor’s Ratings Service, a division of The McGraw-
Hill Companies, a corporation duly organized and existing under and by virtue of the laws of the
State of New York, and its successors and assigns, except that if such corporation shall be dissolved
or liquidated or shall no longer perform the functions of a securities rating agency, then the term
“Standard & Poor’s” shall be deemed to refer to any other nationally recognized securities rating
agency selected by the District.
“Supplemental Agreement” means any agreement hereafter duly executed and delivered,
supplementing, modifying or amending this Agreement, but only if and to the extent that such
Supplemental Agreement is specifically authorized hereunder.
“Tax Certificate” means a tax certificate concerning certain matters relating to tax
compliance with respect to a Series of Bonds, executed and delivered by the District on the date of
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issuance of such Series of Bonds, including all exhibits attached thereto, as such certificate may from
time to time be modified or supplemented in accordance with the terms thereof.
“Tax Credit” means the entitlement, pursuant to the Tax Credit Program, of a taxpayer to
recognize a credit against the tax imposed by Chapter 1 of the Code.
“Tax Credit Allowance Date” means, with respect to any Series of Bonds, each March 15,
June 15, September 15, and December 15, beginning on the date of issuance of such Series of Bonds
and ending on the maturity date thereof, or such of those dates as specified in any Tax Credit
Certificate related thereto.
“Tax Credit Certificate” means an instrument evidencing the entitlement of the Owner
thereof or of the Owner of the related Bond to a Tax Credit.
“Tax Credit Program” means the program for allocating Tax Credits and authorizing the
issuance of Qualified School Construction Bonds promulgated under Sections 54A and 54F of the
Code.
“Term Bond” means a Bond subject to mandatory sinking fund redemption prior to its stated
maturity date, without a redemption premium, in part by lot, from mandatory sinking fund payments
in the amounts and years specified herein or in the Supplemental Agreement relating to such Bond,
as applicable.
“Treasurer” means the Treasurer-Tax Collector of the County of Contra Costa, California.
“Treasury Rate” means the rate per annum, expressed as a percentage of the principal
amount, equal to the semiannual equivalent yield to maturity or interpolated maturity of the
Comparable Treasury Issue, assuming that the Comparable Treasury Issue is purchased on the
redemption date for a price equal to the Comparable Treasury Price, as calculated by the Designated
Investment Banker.
“Written Certificate” and “Written Request” mean (a) with respect to the District, a written
certificate or written request, respectively, signed in the name of the District by an Authorized
Representative of the District, and (b) with respect to the County, a written certificate or written
request, respectively, signed in the name of the County by an Authorized Representative of the
County. Any such certificate or request may, but need not, be combined in a single instrument with
any other instrument, opinion or representation, and the two or more so combined shall be read and
construed as a single instrument.
ARTICLE II
THE BONDS
Section 2.01 Authorization; Date; Payment of Principal; Denominations. (a) The
Series D-1 Bonds shall be issued for the purpose of providing funds to pay costs of the Project and to
pay Costs of Issuance. The Series D-1 Bonds shall be issued by the District and sold by the County
under and subject to the terms of District Resolution, the County Resolution, this Agreement and all
applicable laws, and shall be designated as the “West Contra Costa Unified School District General
Obligation Bonds, Election of 2005, Series D-1, Qualified School Construction Bonds (Tax Credit
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Bonds),” and shall be in the aggregate principal amount of
_____________________________________ dollars ($__________). The Series D-1 Bonds are
hereby designated as “qualified school construction bonds” for purposes of Section 54F of the Code.
(b) The Series D-1 Bonds shall be dated date of their delivery. The Series D-1 Bonds
shall not bear interest. The Series D-1 Bonds shall mature on [______________ 15, 20__].
(c) The principal and any premium of the Series D-1 Bonds shall be payable in lawful
money of the United States of America to the Owner thereof, upon the surrender thereof at the
Principal Corporate Trust Office of the Paying Agent, or at such other location as the Paying Agent
shall designate. Each payment of principal on the Series D-1 Bonds shall include the CUSIP
identification number, if any, of the Series D-1 Bond with respect to which such payment is made.
So long as Cede & Co. or its registered assigns shall be the registered owner of any Series D-1
Bonds, payment shall be made thereto by wire transfer as provided in Section 2.04(d) hereof.
(d) The Series D-1 Bonds shall be issued as fully registered Bonds, without coupons, in
Authorized Denominations.
Section 2.02 Form and Registration of Bonds. (a) The Series D-1 Bonds, the Paying
Agent’s certificate of authentication and registration, and the form of assignment to appear thereon
shall be in substantially the form attached hereto as Exhibit A, with necessary or appropriate
variations, omissions and insertions as permitted or required by this Agreement.
(b) The Series D-1 Bonds when issued shall be Book-Entry Bonds, registered in the
name of “Cede & Co.,” as nominee of The Depository Trust Company, New York, New York, and
shall be initially issued as one bond, in the principal amount set forth in Section 2.01, including the
Tax Credit Certificate related thereto. The Depository Trust Company is hereby appointed
depository for the Series D-1 Bonds and registered ownership of the Series D-1 Bonds may not
thereafter be transferred except as provided in Sections 2.04 and 2.05 hereof.
(c) The form and registration provisions applicable to each additional Series of Bonds
shall be as set forth in the Supplemental Agreement establishing the terms and provisions of such
Series of Bonds.
Section 2.03 Execution and Authentication of Bonds. The Bonds shall be signed by the
manual or facsimile signatures of the Chairman of the Board of Supervisors (the “Chair”) and of the
Treasurer, and countersigned by the manual or facsimile signature of the Executive Officer-Clerk of
the Board of Supervisors (the “Clerk”) or by a deputy of either of said Clerk or of the Treasurer. The
Bonds shall be authenticated by a manual signature of a duly authorized signatory of the Paying
Agent.
Only such of the Bonds as shall bear thereon a certificate of authentication and registration in
the form given in Exhibit A hereto, executed by the Paying Agent, shall be valid or obligatory for
any purpose or entitled to the benefits of this Agreement, and such certificate of the Paying Agent
shall be conclusive evidence that the Bonds so authenticated have been duly authenticated and
delivered hereunder and are entitled to the benefits of this Agreement.
Section 2.04 Book-Entry System. (a) Unless otherwise provided in a Supplemental
Agreement establishing the terms and provisions of a Series of Bonds, each Series of Bonds shall be
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initially issued and registered as provided in Section 2.02(b) hereof. Any series of Bonds issued
hereunder may be Book-Entry Bonds and shall be so designated in the Supplemental Agreement for
such series of Bonds. Book-Entry Bonds shall be evidenced by one Bond maturing on each of the
maturity dates as set forth in the Agreement providing for the issuance of such Bonds in a Authorized
Denominations corresponding to the total principal amount of the Bonds maturing on each maturity
date. Each Bond shall be assigned by the underwriter of the bonds a distinctive number or letter or
letter and number, and a record of the same shall be maintained by the Paying Agent. Registered
ownership of the Bonds, or any portion thereof, may not thereafter be transferred except:
(i) To any successor of Cede & Co., as nominee of The Depository Trust
Company, or its nominee, or to any substitute depository designated pursuant to clause (ii) of
this section (a “substitute depository”); provided, that any successor of Cede & Co., as
nominee of The Depository Trust Company or substitute depository, shall be qualified under
any applicable laws to provide the services proposed to be provided by it;
(ii) To any substitute depository not objected to by the District, upon (1) the
resignation of The Depository Trust Company or its successor (or any substitute depository
or its successor) from its functions as depository, or (2) a determination by the District to
substitute another depository for The Depository Trust Company (or its successor) because
The Depository Trust Company or its successor (or any substitute depository 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
(iii) To any person as provided below, upon (1) the resignation of The Depository
Trust Company or its successor (or substitute depository or its successor) from its functions
as depository, or (2) a determination by the District to remove The Depository Trust
Company or its successor (or any substitute depository or its successor) from its functions as
depository.
(b) In the case of any transfer pursuant to clause (i) or clause (ii) of subsection (a) hereof,
upon receipt of the outstanding Bonds by the Paying Agent, together with a Written Request, a new
Bond for each Series and maturity shall be executed and delivered pursuant to the procedures
described in the third paragraph of Section 2.05 hereof in the aggregate principal amount of the
Bonds 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. In the case of any
transfer pursuant to clause (iii) of subsection (a) hereof, upon receipt of the outstanding Bonds by the
Paying Agent together with a Written Request, new Bonds shall be executed and delivered in such
denominations numbered in the manner determined by the Paying Agent and registered in the names
of such persons as are requested in such Written Request, subject to the limitations of Section 2.01
and the receipt of such a Written Request, and thereafter, the Bonds shall be transferred pursuant to
the provisions set forth in Section 2.05 of this Agreement; provided, that the Paying Agent shall not
be required to deliver such new Bonds within a period of fewer than sixty (60) days.
(c) The County and the Paying Agent shall be entitled to treat the person in whose name
any Bond is registered as the Owner thereof, notwithstanding any notice to the contrary received by
the Paying Agent or the County, and the County and the Paying Agent shall have no responsibility
for transmitting payments to, communicating with, notifying, or otherwise dealing with any
beneficial owners of the Bonds. Neither the County nor the Paying Agent shall have any
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responsibility or obligation, legal or otherwise, to the beneficial owners or to any other party
including The Depository Trust Company or its successor (or substitute depository or its successor),
except as the owner of any Bonds.
(d) So long as the outstanding Bonds are registered in the name of Cede & Co. or its
registered assigns, the County and the Paying Agent shall cooperate with Cede & Co., as sole holder,
or its registered assigns, in effecting payment of the principal of and interest, if any, on the Bonds by
arranging for payment in such manner that funds for such payments are properly identified and are
made immediately available (e.g., by wire transfer) on the date they are due.
Section 2.05 Transfer of Bonds that are not Book-Entry Bonds, or upon Termination of
Book-Entry System. In the event that at any time the Bonds shall not be registered in the name of
Cede & Co., either upon their original issuance or as a result of the operation of Section 2.04 hereof,
then the procedures contained in this Section 2.05 shall apply.
Any Bond may, in accordance with its terms, be transferred upon the books required to be
kept pursuant to the provisions of Section 2.07 hereof by the person in whose name it is registered, in
person or by the duly authorized attorney of such person, upon surrender of such Bond to the Paying
Agent for cancellation, accompanied by delivery of a duly executed written instrument of transfer in
a form approved by the Paying Agent.
Whenever any Bond or Bonds shall be surrendered for transfer, the designated County
officials shall execute (as provided in Section 2.03 hereof) and the Paying Agent shall authenticate
and deliver a new Bond or Bonds of the same Series and maturity, for a like aggregate principal
amount and bearing the same rate of interest, if any. The Paying Agent shall require the payment by
the Owner requesting any such transfer of any tax or other governmental charge required to be paid
with respect to such transfer.
No transfer of Bonds shall be required to be made by the Paying Agent during the period
from the date on which notice of redemption is given to and including the specified Redemption Date
or, with respect to any Bonds that bear current interest, from any Record Date to the following Bond
Payment Date.
Section 2.06 Exchange of Bonds. Bonds may be exchanged at the designated office of the
Paying Agent, for a like aggregate principal amount of Bonds of other authorized denominations of
the same Series, maturity and interest rate, if any. The Paying Agent shall require the payment by the
Owner requesting such exchange of any tax or other governmental charge required to be paid with
respect to such exchange. No exchange of Bonds shall be required to be made by the Paying Agent
from the date on which notice of redemption is given to and including the specified Redemption
Date, or for Bonds that bear current interest, during the period from any Record Date to and
including the following Bond Payment Date.
Section 2.07 Bond Register. (a) The Paying Agent will keep or cause to be kept, at its
Principal Corporate Trust Office, sufficient books for the registration and transfer of the Bonds,
which shall at all times be open to inspection by the District, and, upon presentation for such
purpose, the Paying Agent shall, under such reasonable regulations as it may prescribe, register or
transfer or cause to be registered or transferred, on said books, Bonds as hereinbefore provided.
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(b) The Paying Agent shall assign each Bond authenticated and registered by it a
distinctive letter or number, or letter and number.
Section 2.08 Mutilated, Destroyed, Stolen or Lost Bonds. In case any Bond shall become
mutilated, or shall be believed by the County or the Paying Agent to have been destroyed, stolen or
lost, upon proof of ownership satisfactory to the Paying Agent, and upon the surrender of such
mutilated Bond at the Principal Corporate Trust Office or upon the receipt of evidence satisfactory to
the Paying Agent of such destruction, theft or loss, and upon receipt also of indemnity satisfactory to
the County and the Paying Agent, and upon payment by the Owner of all expenses incurred by the
County and the Paying Agent, the County shall execute and the Paying Agent shall authenticate and
deliver at said office a new Bond or Bonds of the same maturity and for the same aggregate principal
amount, of like tenor and date, bearing the same number or numbers, with such notations as the
Paying Agent shall determine, in exchange and substitution for and upon cancellation of the
mutilated Bond, or in lieu of and in substitution for the Bond so destroyed, stolen or lost.
If any such destroyed, stolen or lost Bond shall have matured or shall have been called for
redemption, payment of the amount due thereon may be made by the County or the Paying Agent
upon receipt of like proof, indemnity and payment of expenses.
Any such duplicate Bonds issued pursuant to this section shall be entitled to equal and
proportionate benefits with all other Bonds issued hereunder. The County and the Paying Agent
shall not be required to treat both the original Bond and any duplicate Bond as being Outstanding for
the purpose of determining the principal amount of Bonds which may be issued hereunder or for the
purpose of determining any percentage of Bonds Outstanding hereunder, but both the original and
duplicate Bond shall be treated as one and the same.
Section 2.09 Temporary Bonds. Until definitive Bonds shall be prepared, the County may
cause to be executed and delivered in lieu of such definitive Bonds and subject to the same
provisions, limitations and conditions as are applicable in the case of definitive Bonds, one or more
temporary typed, printed, lithographed or engraved Bonds in fully registered form, as may be
authorized by the County, substantially of the same tenor and, until exchange for definitive Bonds,
entitled and subject to the same benefits and provisions of the County Resolution and this Agreement
as definitive Bonds. If the County issues temporary Bonds it will execute and furnish definitive
Bonds without unnecessary delay and thereupon the temporary Bonds shall be surrendered to the
Paying Agent at the Principal Corporate Trust Office, without expense to the Owner in exchange for
such definitive Bonds. All temporary Bonds so surrendered shall be cancelled by the Paying Agent
and shall not be reissued.
ARTICLE III
ISSUANCE OF BONDS
Section 3.01 Delivery of Bonds. The Paying Agent is hereby authorized to authenticate
and deliver each Series of Bonds, including the Series D-1 Bonds, to or upon the Written Request of
the County.
Section 3.02 Application of Proceeds of Sale of the Bonds. (a) Upon the receipt from the
initial purchaser of the Series D-1 Bonds by the County of the purchase price of the Series D-1
Bonds ($__________) the Paying Agent shall authenticate and deliver the Series D-1 Bonds Tax
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Credit Certificates attached thereto as Exhibit A, to the purchaser thereof and the Treasurer shall
deposit said amount to the Building Fund established pursuant to the County Resolution.
(b) Upon the delivery of any other Series of Bonds, the proceeds of the sale of such
Series of Bonds shall be applied as set forth in the Supplemental Agreement establishing the terms
and provisions of such Series of Bonds.
Section 3.03 Issuance of Additional Series of Bonds. (a) The District may from time to
time authorize and the County may issue and sell one or more additional Series of Bonds pursuant to
the Authorization and the Tax Credit Program. Whenever the District shall determine to issue an
additional Series of Bonds, the District and the County shall authorize the execution of a
Supplemental Agreement specifying the principal amount, and prescribing the forms of Bonds of
such Series and providing the Series designation, terms, conditions, distinctive designation,
denominations, methods of numbering, date, maturity date or dates, interest rate or rates (or the
manner of determining the same), redemption provisions and place or places of payment of principal
or redemption premium, if any, of and interest on such Bonds, and any other provisions respecting
the Bonds of such Series.
(b) Before such additional Series of Bonds shall be issued and delivered, the District and
the County shall file the following documents with the Paying Agent (upon which documents the
Paying Agent may conclusively rely in determining whether the conditions precedent to the issuance
of such Series of Bonds have been satisfied): (i) an executed copy of the Supplemental Agreement
authorizing such Series, and (ii) an Opinion of Bond Counsel to the effect that the execution of the
Supplemental Agreement has been duly authorized by the District and the County in accordance with
this Agreement; that such Series of Bonds, when duly executed by the District and authenticated and
delivered by the Paying Agent, will be valid and binding obligations of the District; that the issuance
and delivery of such additional Series of Bonds will not, in and of itself, cause any Bonds
outstanding not to be Qualified School Construction Bonds under Section 54A of the Code; and that
upon the delivery of such Series the aggregate principal amount of Bonds then outstanding will not
exceed the amount permitted by the Authorization.
ARTICLE IV
REDEMPTION
Section 4.01 Terms of Redemption of the Series D-1 Bonds and the Series D-1 Bonds Tax
Credit Certificates. (a) No Optional or Mandatory Sinking Fund Redemption. The Series D-1
Bonds shall not be subject to optional or mandatory sinking fund redemption prior to their stated
maturity date.
(b) Extraordinary Mandatory Redemption from Unexpended Proceeds of the Bonds. The
Series D-1 Bonds shall be subject to extraordinary mandatory redemption, in whole or in part, on
______________ 15, 20__, or, in the event of an extension negotiated with the Internal Revenue
Service, on a Tax Credit Allowance Date that occurs on or before ______________ 15, 20__, in
Authorized Denominations, at a redemption price equal to the principal amount of the Series D-1
Bonds called for redemption, in an amount equal to the unexpended proceeds of the sale of the Bonds
held by the District, but only to the extent that the District fails to expend all of the proceeds of the
Series D-1 Bonds within three years of issuance thereof and no extension of the period for
expenditure has been granted by the Internal Revenue Service.
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In the event that the ownership of the Series D-1 Bonds Tax Credit Certificates has been
separated from the ownership of the Series D-1 Bonds and registered separately pursuant to
Article VI hereof, the Series D-1 Bonds Tax Credit Certificates related to the redeemed Series D-1
Bonds shall be called for redemption in the same manner as the Series D-1 Bonds pursuant to this
subsection (b), and the redemption price pursuant to this subsection (b) shall be allocated to the
Series D-1 Bonds Principal Components and the Series D-1 Bonds Tax Credit Certificates in the
proportions and values set forth in the redemption value tables attached as Schedule I to the
Series D-1 Bonds in Appendix A to this Agreement.
(c) Extraordinary Mandatory Redemption Upon a Determination of Loss of Qualified
School Construction Bond Status. Upon a Determination of Loss of Qualified School Construction
Bond Status, the Series D-1 Bonds shall be subject to extraordinary mandatory redemption prior to
their fixed maturity date, in whole, on the date designated by the District, which date shall be a date
on or prior to the [January 15] following the next succeeding __________________ after such
Determination of Loss of Qualified School Construction Bond Status, at a redemption price equal to
(i) the principal amount of the Series D-1 Bonds called for redemption, plus (ii) the Redemption
Premium, plus (iii) accrued interest on the principal amount of the Series D-1 Bonds called for
redemption (calculated at the Tax Credit Rate) from the Tax Credit Allowance Date immediately
preceding the Redemption Date to the date of redemption.
In the event that the ownership of the Series D-1 Bonds Tax Credit Certificates has been
separated from the ownership of the Series D-1 Bonds and registered separately pursuant to
Article VI hereof, the Series D-1 Bonds Tax Credit Certificates related to the redeemed Series D-1
Bonds shall be called for redemption in the same manner as the Series D-1 Bonds pursuant to this
subsection (c), and the redemption price pursuant to this subsection (c) shall be allocated to the
Series D-1 Bonds Principal Components and the Series D-1 Bonds Tax Credit Certificates in the
proportions set forth in the redemption value tables attached as Schedule I to the Series D-1 Bonds in
Appendix A to this Agreement.
In addition, in the event that any Tax Credits recognized prior to the Redemption Date are
determined to be ineligible as Tax Credits as a result of the Determination of Loss of Qualified
School Construction Bond Status, the redemption price shall include an additional amount payable to
the owners, as of the applicable Tax Credit Allowance Dates, of the Tax Credit Certificates for such
Tax Credits equal to the amount of such Tax Credits, plus interest thereon from the applicable Tax
Credit Allowance Date to the date of redemption, at a rate equal to the large corporate underpayment
rate determined from time to time by the Internal Revenue Service.
(d) Notice of Redemption. Notice of redemption of any Bonds shall be given by the
Paying Agent upon the written request of the County. Notice of any redemption of Bonds shall be
mailed postage prepaid, not less than thirty (30) nor more than sixty (60) days prior to the redemption
date (i) by first class mail to the respective Owners thereof and of any related Tax Credit Certificates
at the addresses appearing on the bond registration books described in Sections 2.07 and 6.06, and
(ii) as may be further required in accordance with the applicable Disclosure Dissemination Agent
Agreement.
Each notice of redemption shall contain all of the following information:
(i) the date of such notice;
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(ii) the name of the Bonds and the date of issue of the Bonds;
(iii) the redemption date;
(iv) the redemption price, if available;
(v) the dates of maturity of the Bonds to be redeemed;
(vi) (if less than all of the Bonds of any maturity are to be redeemed) the distinctive
numbers of the Bonds of each maturity to be redeemed;
(vii) (in the case of Bonds redeemed in part only) the respective portions of the principal
amount of the Bonds of each maturity to be redeemed;
(viii) the CUSIP number, if any, of each maturity of Bonds, or if separated, Principal
Components and Tax Credit Certificates, to be redeemed;
(ix) a statement that such Bonds or, if separated, Principal Components and Tax Credit
Certificates, must be surrendered by the Owners at the Principal Corporate Trust
Office of the Paying Agent, or at such other place or places designated by the Paying
Agent; and
(x) notice that further interest on such Bonds, if any, will not accrue after the designated
redemption date.
Such redemption notices may state that no representation is made as to the accuracy or
correctness of the CUSIP numbers provided therein or on the Bonds or the Tax Credit Certificates.
(e) Effect of Notice. A certificate of the Paying Agent or the County that notice of call
and redemption has been given to Owners and as may be further required in the applicable
Disclosure Dissemination Agent Agreement as herein provided shall be conclusive as against all
parties. The actual receipt by the Owner of any Bond or Tax Credit Certificate or any other party of
notice of redemption shall not be a condition precedent to redemption, and failure to receive such
notice, or any defect in the notice given, shall not affect the validity of the proceedings for the
redemption of such Bonds or the cessation of interest, if any, on the date fixed for redemption.
When notice of redemption has been given substantially as provided for herein, and when the
redemption price of the Bonds called for redemption is set aside for the purpose as described in
subsection (g) of this Section, the Bonds designated for redemption shall become due and payable on
the specified redemption date and interest, if any, shall cease to accrue thereon as of the redemption
date, and upon presentation and surrender of such Bonds or, if separated, Principal Components and
Tax Credit Certificates, at the place specified in the notice of redemption, such Bonds or, if
separated, Principal Components and Tax Credit Certificates, shall be redeemed and paid at the
redemption price thereof out of the money provided therefor. The Owners of such Bonds so called
for redemption after such redemption date shall look for the payment of such Bonds and the
redemption premium thereon, if any, only to the Debt Service Fund or the escrow fund established
for such purpose. All Bonds redeemed shall be cancelled forthwith by the Paying Agent and shall
not be reissued.
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(f) Right to Rescind Notice. Upon oral or written notice from the District that the
District has cured the conditions that caused the Bonds to be subject to extraordinary mandatory
redemption, the County may rescind any extraordinary mandatory redemption and notice thereof on
any date prior to the date fixed for redemption by causing written notice of the rescission to be given
to the Owners of the Bonds and Tax Credit Certificates so called for redemption, with a copy to the
Paying Agent. Notice of rescission of redemption shall be given in the same manner in which notice
of redemption was originally given. The actual receipt by the owner of any Bond or Tax Credit
Certificate of notice of such rescission shall not be a condition precedent to rescission, and failure to
receive such notice or any defect in such notice shall not affect the validity of the rescission.
(g) Funds for Redemption. Prior to or on the redemption date of any Bonds there shall
be available in the Debt Service Fund of the District, or held in trust for such purpose as provided by
law, monies for the purpose and sufficient to redeem, at the premiums payable as in this Agreement
provided, the Bonds designated in said notice of redemption. Such monies so set aside in the Debt
Service Fund or in the escrow fund established for such purpose shall be applied on or after the
redemption date solely for payment of principal of and premium, if any, on the Bonds to be redeemed
upon presentation and surrender of such Bonds, provided that all monies in the Debt Service Fund of
the District shall be used for the purposes established and permitted by law. Any interest due on or
prior to the redemption date shall be paid from the Debt Service Fund of the District, unless
otherwise provided for to be paid from an escrow fund established for such purpose. If, after all of
the Bonds of a Series have been redeemed and cancelled or paid and cancelled, there are monies
remaining in the Debt Service Fund of the District or otherwise held in trust for the payment of
redemption price of the Bonds of such Series, said monies shall be held in or returned or transferred
to the Debt Service Fund of the District for payment of any outstanding Bonds of the District payable
from said fund; provided, however, that if said monies are part of the proceeds of refunding bonds of
the District, said monies shall be transferred to the fund created for the payment of principal of and
interest on such bonds. If no such refunding bonds of the District are at such time outstanding, said
monies shall be transferred to the general fund of the District as provided and permitted by law.
(h) Selection of Bonds for Redemption. The Paying Agent shall effect each mandatory
redemption of the Bonds by redeeming pro rata from each registered Owner of a Bond to be
redeemed, an amount of such Bonds determined by multiplying the principal amount of the Bonds to
be redeemed on the applicable redemption date by a fraction, the numerator of which is the principal
amount of the Bonds owned by such registered Owner and the denominator of which is the principal
amount of the Bonds outstanding immediately prior to such date of redemption, and then rounding
the product down to the next lower integral multiple of [$40,000]. The Paying Agent will apply, to
the extent possible, any remaining amount of proceeds to redeem such Bonds in Authorized
Denominations and will select, by lot, the units to be redeemed from all such registered Owners,
which selection shall be conclusive. Redemption by lot shall be in such manner as the Paying Agent
shall determine; provided, however, that the portion of any Bond to be redeemed shall be in
Authorized Denominations and all Bonds to remain Outstanding after any redemption in part shall be
in Authorized Denominations. The Tax Credit Certificates related to the Bonds called for
redemption shall also be called for redemption.
(i) No Defeasance of Bonds. The Bonds shall not be subject to defeasance, and the
District and the County may not pay or discharge all or any portion of the Bonds prior to their stated
maturity dates, except pursuant to the extraordinary mandatory redemption provisions of Article IV
hereof.
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ARTICLE V
PAYMENT OF BONDS
Section 5.01 Establishment and Maintenance of Debt Service Fund. The Treasurer shall
establish and maintain a separate fund herein referred to as the “West Contra Costa Unified School
District General Obligation Bonds, Election of 2005 Debt Service Fund” or the “Debt Service Fund.”
All taxes levied to pay Bonds shall be deposited in the Debt Service Fund as required by law. On or
prior to the Business Day preceding the date any payment is due in respect of the Bonds, the County
will transfer such monies as shall be lawfully available for the payment of the Bonds to the Paying
Agent for deposit in the Bond Payment Fund in an amount sufficient to pay the principal of, interest,
if any, and premium, if any, on all Bonds outstanding coming due on such payment date.
Section 5.02 Establishment and Application of Bond Payment Fund. The Paying Agent
shall establish, maintain and hold in trust a separate fund designated as the “West Contra Costa
Unified School District Qualified School Construction Bonds Bond Payment Fund” (the “Bond
Payment Fund”). All amounts in the Bond Payment Fund shall be used and withdrawn by the Paying
Agent solely for the purpose of paying principal of, interest, if any, and premium, if any, on the
Bonds as it shall become due and payable. On or prior to the Business Day preceding the date any
payment is due in respect of the Bonds, the County will cause such monies as shall be lawfully
available for the payment of the Bonds to be transferred to the Paying Agent for deposit in the Bond
Payment Fund sufficient to pay the principal of, interest, if any, and premium, if any, on all Bonds
outstanding coming due on such payment date. In the event that the Paying Agent shall fail to
receive an amount sufficient to equal the amount required to be deposited pursuant to this Section
5.02 by the close of business on the Business Day preceding a scheduled Bond Payment Date or
Principal Payment Date, the Paying Agent shall promptly notify the County in writing of the amount
of such insufficiency by fax or other electronic means of communication acceptable to the County,
receipt of which by the County shall be confirmed by the Paying Agent. On the Business Day after
each Bond Payment Date and Principal Payment Date, the Paying Agent shall transfer all amounts
remaining in the Bond Payment Fund to the County. When and as paid in full, and following
surrender thereof to the Paying Agent, all Bonds shall be cancelled by the Paying Agent, and
thereafter they shall be destroyed.
Section 5.03 Rebate Fund. (a) Establishment. The Paying Agent shall establish a separate
fund for a Series of Bonds designated the Rebate Fund. Absent an Opinion of Counsel that the status
of a Series of Bonds as qualified tax credit bonds under section 54A of the Code will not be
adversely affected, the District shall cause to be deposited in the Rebate Fund such amounts as are
required to be deposited therein pursuant to this Section and the Tax Certificate. All money at any
time deposited in the Rebate Fund shall be held by the Paying Agent in trust for payment of the
United States Treasury. All amounts on deposit in the Rebate Fund for a Series of Bonds shall be
governed by this Section and the Tax Certificate for a Series of Bonds, unless and to the extent that
the District delivers to the Paying Agent an Opinion of Counsel that the status of a Series of Bonds as
qualified tax credit bonds under section 54A of the Code will not be adversely affected if such
requirements are not satisfied. The Paying Agent shall be deemed conclusively to have complied
with Provisions of this Section and the Tax Certificate if the Paying Agent follows the directions of
the District and the Paying Agent shall have no independent responsibility to or liability resulting
from failure of the Paying Agent to enforce compliance by the District with the Tax Certificate or the
provisions of this Section.
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(i) Annual Computation. Within 55 days of the end of each Bond Year (as such term is
defined in the Tax Certificate, the District shall calculate or cause to be calculated the amout of
rebatable arbitrage, in accordance with Section 148(f)(2) of the Code and Section 1.148-3 of the
Treasury Regulations (taking into account any applicable exceptions with respect to the computation
of the rebatable arbitrage, described, if applicable, in the Tax Certificate (e.g., the temporary
investments exceptions of Section 148(f)4)(B) and the construction expenditures exception of
Section 148(f)(4)(c)(vii) of the Code (the 1 ½ % penalty), for this purpose treating the last day of the
applicable Bond Year as a computation date, within the meaning of Section 1.148 -1(b) of the
Treasury Regulations (the “Rebatable Arbitrage”). The District shall obtain expert advice as to the
amount of the Rebatable Arbitrage to comply with this Section.
(ii) Annual Transfer. Within 55 days of the end of each Bond Year, upon the written
Request of the District, an amount shall be deposited to the Rebate Fund by the Paying Agent from
any Revenues legally available for such purpose (as specified by the District in the aforesaid written
Request), if and to the extent required so that the balance in the Rebate Fund shall equal the amount
of the Rebatable Arbitrage so calculated in accordance with (i) of this subsection (a). In the event
that immediately following the transfer required by the previous sentence, the amount then on deposit
to the credit of the Rebate Fund exceeds the amount required to be on deposit therein, upon written
Request of the District, the Paying Agent shall withdraw the excess from the Rebate Fund and then
transfer the excess to the District.
(iii) Payment to the Treasury. The Paying Agent shall pay, as directed by Request of the
District to the United States Treasury, out of amounts in the Rebate Fund:
(A) Not later than 60 days after the end of: (X) the fifth Bond Year; and (Y) each
applicable fifth Bond Year thereafter, an amount equal to at least 90% of the Rebatable Arbitrage
calculated as of the end of such Bond Year; and
(B) Not later than 60 days after the payment of all of a Series of Bonds, in amount
equal to 100% of the Rebatable Arbitrage calculated as of the end of such applicable Bond Year, and
any income attributable to the Rebatable Arbitrage, computed in accordance with Section 148(f) of
the Code and Section 1.148-3 of the Treasury Regulations.
In the event that, prior to the time of any payment required to be made from the
Rebate Fund, the amount in the Rebate Fund is not sufficient to make such payment when such
payment is due, the District shall calculate or cause to be calculated the amount of such deficiency
and deposit an amount received form any legally available source equal to such deficiency prior to
the4 time such payment is due. Each payment required to be made pursuant to this subsection (a)
shall be made to the Internal Revenue Service Center, Ogden, Utah 84201 on or before the date on
which such payment is due, and shall be accompanied by the Internal Revenue Service Form 8028-T,
or shall be made in such other manner as provided under the Code.
(b) Disposition of Unexpended Funds. Any funds remaining in the Rebate Fund after redemption
and payment of a Series of Bonds and any payments described in subsection (a) above being made
may be withdrawn by the District and utilized in any manner by the District.
(c) Survival of Defeasance. Notwithstanding anything in this Section to the contrary, the obligation
to comply with the requirements of this Section shall survive the defeasance or payment in full of a
Series of Bonds.
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ARTICLE VI
STRIPPING OF THE TAX CREDITS
Section 6.01 Tax Credit Stripping Permitted; Date; Denominations. (a) The District and
the County have caused the Bonds to be issued in a form that permits the separation, under the Tax
Credit Program, of the ownership of the Bonds from the entitlement of the Owner thereof to the
related Tax Credits. At any time, the Owner of a Bond may, by written request to the Paying Agent
in the form attached hereto as Appendix B, direct the Paying Agent to authenticate and deliver the
Tax Credit Certificates separated from such Bond and endorse and renumber the Principal
Component of such Bond.
(b) Upon the receipt of a request pursuant to Section 6.01 hereof, the Paying Agent shall
(i) authenticate and deliver to the Owner so requesting, Series D-1 Bond Tax Credit Certificates in
accordance with Section 6.02, in a notional amount equal to the principal amount of the related
Series D-1 Bond, and (ii) contemporaneously with the delivery thereof, the Paying Agent shall (x)
evidence the Principal Component by executing the legend, entitled “Principal Strip Legend,” that
appears on the Paying Agent’s authentication page for such related Series D-1 Bond and (y) assign a
new identification number to the Principal Component of such Series D-1 Bond that is distinct from
the identification number for the original combined Series D-1 Bond. The Series D-1 Bonds Tax
Credit Certificates shall be dated the date of the Series D-1 Bonds and shall represent an amount of
Tax Credits based upon the notional amount and the applicable rate set forth therein.
(c) The Series D-1 Bonds Tax Credit Certificates shall be executed and delivered as fully
registered Tax Credit Certificates, in notional amounts corresponding to Authorized Denominations,
in an aggregate notional amount equal to the principal amount of the related Series D-1 Bonds.
Section 6.02 Form and Registration of Series D-1 Bonds Tax Credit Certificates. (a) The
Series D-1 Bonds Tax Credit Certificates, the Paying Agent’s certificate of authentication and
registration, and the form of assignment to appear thereon shall be in substantially the form attached
as Exhibit A of the Form of Tax Credit Bond in Appendix A of this Agreement, with necessary or
appropriate variations, omissions and insertions as permitted or required by this Agreement. The
Series D-1 Bonds Tax Credit Certificates shall be numbered in consecutive numerical order from
TC-1 upwards.
(b) The Series D-1 Bonds Tax Credit Certificates, when executed and delivered, shall be
Book-Entry Tax Credit Certificates, registered in the name of “Cede & Co.,” as nominee of The
Depository Trust Company, New York, New York, and shall be delivered initially upon exchange of
the related Series D-1 Bond and thereafter be exchanged for one Tax Credit Certificate for each Tax
Credit Allowance Date for the related Series D-1 Bonds, in the notional amount set forth in Section
6.01. The Depository Trust Company is hereby appointed depository for the Book-Entry Tax Credit
Certificates and registered ownership of the Book-Entry Tax Credit Certificates may not thereafter be
transferred except as provided in Sections 6.04 and 6.05 hereof.
Section 6.03 Execution and Authentication of Tax Credit Certificates. The Series D-1
Bonds Tax Credit Certificates shall be signed by the manual or facsimile signatures of the Chairman
and of the Treasurer. The Series D-1 Bonds Tax Credit Certificates shall be authenticated by a
manual signature of a duly authorized signatory of the Paying Agent.
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Only such of the Series D-1 Bonds Tax Credit Certificates as shall bear thereon a certificate
of authentication and registration in the form given in Exhibit A of the Form of Tax Credit Bond in
Appendix A of this Agreement, executed by the Paying Agent, shall be valid or obligatory for any
purpose or entitled to the benefits of this Agreement, and such certificate of the Paying Agent shall
be conclusive evidence that the Series D-1 Bonds Tax Credit Certificates so authenticated have been
duly authenticated and delivered hereunder and are entitled to the benefits of this Agreement.
Section 6.04 Book-Entry System for Tax Credit Certificates. (a) Unless otherwise
provided in a Supplemental Agreement establishing the terms and provisions of Tax Credit
Certificates related to a Series of Bonds, the Tax Credit Certificates shall be initially executed and
delivered and registered as provided in Section 6.02(b) hereof. Registered ownership of the Tax
Credit Certificates, or any portion thereof, may not thereafter be transferred except:
(i) To any successor of Cede & Co., as nominee of The Depository Trust
Company, or its nominee, or to any substitute depository designated pursuant to clause (ii) of
this section (a “substitute depository”); provided, that any successor of Cede & Co., as
nominee of The Depository Trust Company or substitute depository, shall be qualified under
any applicable laws to provide the services proposed to be provided by it;
(ii) To any substitute depository not objected to by the District, upon (1) the
resignation of The Depository Trust Company or its successor (or any substitute depository
or its successor) from its functions as depository, or (2) a determination by the District to
substitute another depository for The Depository Trust Company (or its successor) because
The Depository Trust Company or its successor (or any substitute depository 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
(iii) To any person as provided below, upon (1) the resignation of The Depository
Trust Company or its successor (or substitute depository or its successor) from its functions
as depository, or (2) a determination by the District to remove The Depository Trust
Company or its successor (or any substitute depository or its successor) from its functions as
depository.
(b) In the case of any transfer pursuant to clause (i) or clause (ii) of subsection (a) hereof,
upon receipt of the Tax Credit Certificates related to outstanding Bonds by the Paying Agent,
together with a Written Request, a new Tax Credit Certificate for the same related Series of Bonds
and maturity shall be executed and delivered pursuant to the procedures described in the third
paragraph of Section 6.05 hereof in the aggregate principal amount of the Bonds 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. In the case of any transfer pursuant to clause (iii) of
subsection (a) hereof, upon receipt of the Tax Credit Certificates related to outstanding Bonds by the
Paying Agent together with a Written Request, new Tax Credit Certificates related to such Bonds
shall be executed and delivered in such denominations numbered in the manner determined by the
Paying Agent and registered in the names of such persons as are requested in such Written Request,
subject to the limitations of Section 6.01 and the receipt of such a Written Request, and thereafter,
the Tax Credit Certificates related to such Bonds shall be transferred pursuant to the provisions set
forth in Section 6.05 of this Agreement; provided, that the Paying Agent shall not be required to
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deliver such new Tax Credit Certificates related to such Bonds within a period of fewer than sixty
(60) days.
(c) The County, the District and the Paying Agent shall be entitled to treat the person in
whose name any Tax Credit Certificate is registered as the Owner thereof, notwithstanding any
notice to the contrary received by the Paying Agent, the District or the County, and the County, the
District and the Paying Agent shall have no responsibility for communicating with, notifying, or
otherwise dealing with any beneficial owners of the Tax Credit Certificates. Neither the County, the
District nor the Paying Agent shall have any responsibility or obligation, legal or otherwise, to the
beneficial owners or to any other party including The Depository Trust Company or its successor (or
substitute depository or its successor), except as the owner of any Tax Credit Certificates.
(d) So long as the Tax Credit Certificates are registered in the name of Cede & Co. or its
registered assigns, the County, the District and the Paying Agent shall cooperate with Cede & Co., as
sole holder, or its registered assigns, in effecting payment of the redemption price, if any, of the Tax
Credit Certificates by arranging for payment in such manner that funds for such payments are
properly identified and are made immediately available (e.g., by wire transfer) on the date they are
due.
(e) So long as the Tax Credit Certificates are registered in the name of Cede & Co. or its
registered assigns, the Paying Agent shall provide notice to the Depository of the expiration of each
Tax Credit Certificate, not less than forty-five (45) days prior to the Tax Credit Allowance Date for
such Tax Credit Certificate, in the form included as Appendix C hereto.
Section 6.05 Transfer of Tax Credit Certificates that are not Book-Entry Tax Credit
Certificates, or upon Termination of Book-Entry System. In the event that at any time the Tax Credit
Certificates shall not be registered in the name of Cede & Co., either upon their original execution
and authentication or as a result of the operation of Section 6.04 hereof, then the procedures
contained in this Section 6.05 shall apply.
Any Tax Credit Certificate may, in accordance with its terms, be transferred upon the books
required to be kept pursuant to the provisions of Section 6.07 hereof by the person in whose name it
is registered, in person or by the duly authorized attorney of such person, upon surrender of such Tax
Credit Certificate to the Paying Agent for cancellation, accompanied by delivery of a duly executed
written instrument of transfer in a form approved by the Paying Agent.
Whenever any Tax Credit Certificate or Tax Credit Certificates shall be surrendered for
transfer, the designated District and County officials shall execute (as provided in Section 6.03
hereof) and the Paying Agent shall authenticate and deliver a new Tax Credit Certificate or Tax
Credit Certificates for the same related Series of Bonds and maturity, and for a like aggregate
notional amount. The Paying Agent shall require the payment by the Owner requesting any such
transfer of any tax or other governmental charge required to be paid with respect to such transfer.
No transfer of Tax Credit Certificates shall be required to be made by the Paying Agent from
the date on which notice of redemption is given for the related Series of Bonds to and including the
specified Redemption Date or, with respect to a related Series of Bonds that bears current interest,
during the period from any Record Date to the following Bond Payment Date.
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Section 6.06 Exchange of Tax Credit Certificates. Tax Credit Certificates may be
exchanged at the designated office of the Paying Agent, for a like aggregate notional amount of Tax
Credit Certificates of other authorized denominations of the same related Series of Bonds, maturity
and interest rate, if any. The Paying Agent shall require the payment by the Owner requesting such
exchange of any tax or other governmental charge required to be paid with respect to such exchange.
If the related Bonds bear current interest, no exchange of Tax Credit Certificates shall be required to
be made by the Paying Agent during the period from any Record Date to and including the following
Bond Payment Date or, regardless of the interest borne by such Bonds, from the date on which notice
of redemption is given to and including the specified Redemption Date.
Section 6.07 Tax Credit Certificate Register. (a) The Paying Agent will keep or cause to
be kept, at its Principal Corporate Trust Office, sufficient books for the registration and transfer of
the Tax Credit Certificates, which shall at all times be open to inspection by the District and the
County, and, upon presentation for such purpose, the Paying Agent shall, under such reasonable
regulations as it may prescribe, register or transfer or cause to be registered or transferred, on said
books, Tax Credit Certificates as hereinbefore provided.
(b) The District shall assign each Tax Credit Certificate authenticated and registered by it
a distinctive letter or number, or letter and number.
Section 6.08 Mutilated, Destroyed, Stolen or Lost Tax Credit Certificates. In case any Tax
Credit Certificate shall become mutilated, or shall be believed by the District, the County or the
Paying Agent to have been destroyed, stolen or lost, upon proof of ownership satisfactory to the
Paying Agent, and upon the surrender of such mutilated Tax Credit Certificate at the Principal
Corporate Trust Office or upon the receipt of evidence satisfactory to the Paying Agent of such
destruction, theft or loss, and upon receipt also of indemnity satisfactory to the District, the County
and the Paying Agent, and upon payment by the Owner of all expenses incurred by the District, the
County and the Paying Agent, the District and the County shall execute and the Paying Agent shall
authenticate and deliver at said office a new Tax Credit Certificate or Tax Credit Certificates of the
same maturity and for the same notional amount, of like tenor and date, bearing the same number or
numbers, with such notations as the Paying Agent shall determine, in exchange and substitution for
and upon cancellation of the mutilated Tax Credit Certificate, or in lieu of and in substitution for the
Tax Credit Certificate so destroyed, stolen or lost.
If any such destroyed, stolen or lost Tax Credit Certificate shall have been called for
redemption, payment of the amount due thereon may be made by the County or the Paying Agent
upon receipt of like proof, indemnity and payment of expenses.
Any duplicate Tax Credit Certificates issued pursuant to this Section shall be entitled to equal
and proportionate benefits with all other Tax Credit Certificates issued hereunder. The District, the
County and the Paying Agent shall not be required to treat both the original Tax Credit Certificate
and any duplicate Tax Credit Certificate as being Outstanding for the purpose of determining any
percentage of Tax Credit Certificates Outstanding hereunder, but both the original and duplicate Tax
Credit Certificate shall be treated as one and the same.
Section 6.09 Temporary Tax Credit Certificates. Until definitive Tax Credit Certificates
shall be prepared, the District and the County may cause to be executed and delivered in lieu of such
definitive Tax Credit Certificates and subject to the same provisions, limitations and conditions as are
applicable in the case of definitive Tax Credit Certificates, one or more temporary typed, printed,
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lithographed or engraved Tax Credit Certificates in fully registered form, as may be authorized by
the County, substantially of the same tenor and, until exchange for definitive Tax Credit Certificates,
entitled and subject to the same benefits and provisions of the District Resolution, the County
Resolution and this Agreement as definitive Tax Credit Certificates. If the District and the County
execute and deliver temporary Tax Credit Certificates they will execute and deliver definitive Tax
Credit Certificates without unnecessary delay and thereupon the temporary Tax Credit Certificates
shall be surrendered to the Paying Agent at the Principal Corporate Trust Office, without expense to
the Owner in exchange for such definitive Tax Credit Certificates. All temporary Tax Credit
Certificates so surrendered shall be cancelled by the Paying Agent and shall not be redelivered.
ARTICLE VII
COVENANTS OF THE DISTRICT AND THE COUNTY
Section 7.01 Obligation to Levy Taxes For Payment of Bonds; Sinking Fund Deposits.
(a) The money for the payment of principal, redemption price, and interest, if any, on the
Bonds shall be raised by ad valorem taxation without limitation as to rate or amount (except with
respect to certain personal property which is taxable at limited rates) upon all taxable property in the
District, and provision shall be made for the levy and collection of such taxes in the manner provided
by law, and the County shall cause such money to be transferred to the Paying Agent for payment of
the Bonds as provided hereunder.
(b) The County shall, in each fiscal year set forth below, set aside from the tax levied
pursuant to this Section 7.01(a) and the Authorization, an amount equal to that portion of the
principal amount of the Series D-1 Bonds set forth below for deposit in a subaccount established
within the Debt Service Fund for the accumulation of funds necessary to pay the Series D-1 Bonds at
maturity.
Set-Aside Date
(__________1)
Set-Aside Amount
$
Section 7.02 Validity of Bonds. The recital contained in the Bonds that the same are
regularly issued pursuant to all applicable laws shall be conclusive evidence of their validity and of
compliance with the provisions of the law in their issuance.
Section 7.03 Further Assurances. The District and the County will promptly execute and
deliver or cause to be executed and delivered all such other and further instruments, documents or
assurances, and promptly do or cause to be done all such other and further things, as may be
necessary or reasonably required in order to further and more fully vest in the Owners all rights,
interest, powers, benefits, privileges and advantages conferred or intended to be conferred upon them
by this Agreement.
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Section 7.04 Tax Covenants of the District. (a) The District shall not take any action or
inaction, or fail to take any action, or permit any action to be taken on its behalf or cause or permit
any circumstances within its control to arise or continue, if such action or inaction would cause the
Bonds to not be Qualified Tax Credit Bonds under Section 54A of the Code and Qualified School
Construction Bonds under Section 54F of the Code. Without limiting the generality of the forgoing,
the District shall comply with the instructions and requirements of the Tax Certificate, which is
incorporated herein as if fully set forth herein. This covenant shall survive payment in full or
defeasance of the Bonds.
(b) In the event that at any time the District is of the opinion that for purposes of this
Section it is necessary or helpful to restrict or limit the yield on the investment of any moneys held
by the County under the County Resolution, or held by the Paying Agent under this Agreement, the
District shall so instruct the County or the Paying Agent, as applicable, in writing, and the County
and the Paying Agent shall take such action as may be necessary in accordance with such
instructions.
(c) Notwithstanding any provisions of this Section, if the District shall provide to the
Paying Agent an opinion of Bond Counsel that any specified action required under this Section is no
longer required or that some further or different action is required in order for the Bonds to be
Qualified Tax Credit Bonds under Section 54A of the Code and Qualified School Construction
Bonds under Section 54F of the Code, the Paying Agent may conclusively rely on such opinion in
complying with the requirements of this Section, and the covenants hereunder shall be deemed to be
modified to that extent.
Section 7.05 Tax Covenants of the County. (a) The County shall not take any action or
inaction, or fail to take any action, or permit any action to be taken on its behalf or cause or permit
any circumstances within its control to arise or continue, if such action or inaction would cause the
Bonds to not be Qualified Tax Credit Bonds under Section 54A of the Code and Qualified School
Construction Bonds under Section 54F of the Code. Without limiting the generality of the forgoing,
the County shall comply with the instructions and requirements of the Tax Certificate, which is
incorporated herein as if fully set forth herein. This covenant shall survive payment in full or
defeasance of the Bonds.
(b) In the event that at any time the County is of the opinion that for purposes of this
Section it is necessary or helpful to restrict or limit the yield on the investment of any moneys held
by the Paying Agent under this Agreement, the County shall so instruct the Paying Agent, in writing,
and the Paying Agent shall take such action as may be necessary in accordance with such
instructions.
(c) Notwithstanding any provisions of this Section, if the District shall provide to the
Paying Agent an opinion of Bond Counsel that any specified action required under this Section is no
longer required or that some further or different action is required in order for the Bonds to be
Qualified Tax Credit Bonds under Section 54A of the Code and Qualified School Construction
Bonds under Section 54F of the Code, the Paying Agent may conclusively rely on such opinion in
complying with the requirements of this Section, and the covenants hereunder shall be deemed to be
modified to that extent.
Section 7.06 Continuing Disclosure Covenant. Upon the issuance of any Series of Bonds
requiring an undertaking regarding continuing disclosure under Securities and Exchange
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Commission Rule 15c2-12, the District hereby covenants and agrees that it will comply with and
carry out all of the provisions of the Disclosure Dissemination Agent Agreement executed and
delivered in connection with such Series of Bonds. Notwithstanding any other provision of this
Agreement, failure of the District to comply with the Disclosure Dissemination Agent Agreement
shall not be considered an event of default hereunder; provided that any Owner or Beneficial Owner
(as defined below) may take such actions as may be necessary and appropriate, including seeking
mandate or specific performance by court order, to cause the District to comply with its obligations
under this section. For purposes of this section, “Beneficial Owner” means any person which has or
shares the power, directly or indirectly, to make investment decisions concerning ownership of any
Bonds (including persons holding Bonds through nominees, depositories or other intermediaries).
ARTICLE VIII
THE PAYING AGENT
Section 8.01 Appointment; Acceptance. The Bank of New York Mellon Trust Company,
N.A., is hereby appointed Paying Agent and hereby accepts and agrees to perform the duties and
obligations of the Paying Agent, registrar and transfer agent specifically imposed upon it by this
Agreement, and no implied duties shall be read into this Agreement against the Paying Agent.
Section 8.02 Resignation, Removal, Replacement of Paying Agent. The Paying Agent
may at any time resign by giving written notice to the District of such resignation, whereupon the
District shall promptly appoint a successor Paying Agent by the resignation date. Resignation of the
Paying Agent will be effective forty-five (45) days after notice of the resignation is given as stated
above or upon appointment of a successor Paying Agent, whichever first occurs. The District may at
any time remove the Paying Agent and any successor Paying Agent by an instrument given in
writing. After removal or receiving a notice of resignation of the Paying Agent, the District may
appoint a temporary Paying Agent or temporarily assume the duties of the Paying Agent to replace
the former Paying Agent until the District appoints a successor Paying Agent. Any such temporary
Paying Agent so appointed by the District shall immediately and without further act be superseded by
the successor Paying Agent upon the appointment of and acceptance thereof by such successor.
The Paying Agent is hereby authorized to pay or redeem the Bonds when duly presented for
payment at maturity, or on prior redemption, and to cancel all Bonds upon payment thereof. The
Paying Agent shall keep accurate records of all funds administered by it and of all Bonds paid and
discharged.
Any Paying Agent appointed under the provisions of this Section in succession to the Paying
Agent shall be a trust company, bank or corporation having the powers of a trust company having
(or, if such trust company, bank or corporation is a member of a bank holding company system, the
related bank holding company shall have) a combined capital and surplus of at least seventy-five
million dollars ($75,000,000), in good standing and subject to supervision or examination by federal
or state authority. If such bank or trust company, corporation or bank holding 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 paragraph the combined capital
and surplus of such bank, trust company or corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. In case at any time the
Paying Agent shall cease to be eligible in accordance with the provisions of this paragraph, the
Paying Agent shall resign immediately in the manner and with the effect specified in this Section.
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Section 8.03 Accounting Records. The Paying Agent shall keep proper books of record
and accounts containing complete and correct entries of all transactions relating to the receipt,
investment, disbursement, allocation and application of the moneys related to the Bonds, including
moneys derived from or to be used to make payments on the Bonds. Such records shall specify the
account or fund to which each investment (or portion thereof) held by the Paying Agent is to be
allocated and shall set forth, in the case of each investment security, (a) its purchase price,
(b) identifying information, including par amount, coupon rate, and payment dates, (c) the amount
received at maturity or its sale price, as the case may be, including accrued interest, (d) the amounts
and dates of any payments made with respect thereto, and (e) the dates of acquisition and disposition
or maturity. Such books of record and account shall be available for inspection by the District during
the Paying Agent’s normal business hours and under reasonable circumstances.
Section 8.04 Merger or Consolidation. Any company or bank into which the Paying Agent
may be merged or converted or with which it may be consolidated or any company or bank resulting
from any merger, conversion or consolidation to which it shall be a party or any company or bank to
which the Paying Agent may sell or transfer all or substantially all of its corporate trust business,
provided such company or bank shall be eligible under Section 7.01, shall be the successor to such
Paying Agent without the execution or filing of any paper or any further act, anything herein to the
contrary notwithstanding.
Section 8.05 Protection of Paying Agent. The Paying Agent hereby agrees, provided
sufficient immediately available funds have been provided to it for such purpose by or on behalf of
the District, to use the funds deposited with it hereunder in the Bond Payment Fund solely for
payment of the principal of and interest on the Bonds as the same shall become due or become
subject to earlier redemption. The Paying Agent shall not be responsible for: (i) the application or
handling by the District of any moneys transferred to or pursuant to any Request or Requisition of the
District in accordance with the terms and conditions hereof; (ii) any error or omission by the District
in making any computation or giving any instruction pursuant to Section 5.03 hereof, or (iii) the
construction, operation or maintenance of the Project by the District. The Paying Agent shall have
no responsibility with respect to any information, statement, or recital in any official statement,
offering memorandum or any other disclosure material prepared or distributed with respect to the
Bonds.
Section 8.06 Reliance on Documents, Etc.
(a) The Paying Agent may conclusively rely, as to the truth of the statements and
correctness of the opinions expressed therein, on certificates or opinions furnished to the Paying
Agent by the District.
(b) The Paying Agent shall not be liable for any error of judgment made in good faith.
The Paying Agent shall not be liable for other than its gross negligence or willful misconduct in
connection with any act or omission hereunder.
(c) No provision of this Agreement shall require the Paying Agent to expend or risk its
own funds or otherwise incur any financial liability for performance of any of its duties hereunder, or
in the exercise of any of its rights or powers.
(d) The Paying Agent may rely, or be protected in acting or refraining from acting, upon
any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent,
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order, facsimile transmission, electronic mail, bond, note, security or other paper or document
believed by it to be genuine and to have been signed or presented by the proper party or parties. The
Paying Agent need not examine the ownership of any Bond, but is protected in acting upon receipt of
Bonds containing an endorsement or instruction of transfer or power of transfer which appears on its
face to be signed by the Owner or agent of the Owner.
(e) The Paying Agent may consult with counsel, and the advice of such counsel or any
Opinion of Counsel shall be full authorization and protection with respect to any action taken,
suffered or omitted by it hereunder in good faith and reliance thereon.
(f) The Paying Agent may exercise any of the powers hereunder and perform any duties
hereunder either directly or by or through agents or attorneys and shall not be responsible for the acts
or omissions of such agents or attorneys appointed by it with due care.
(g) The Paying Agent shall not be considered in breach of or in default in its obligations
hereunder or progress in respect thereto in the event of enforced delay (“unavoidable delay”) in the
performance of such obligations due to unforeseeable causes beyond its control and without its fault
or negligence, including, but not limited to, Acts of God or of the public enemy or terrorists, acts of a
government, acts of the other party, fires, floods, epidemics, quarantine restrictions, strikes, freight
embargoes, earthquakes, explosion, mob violence, riot, inability to procure or general sabotage or
rationing of labor, equipment, facilities, sources of energy, material or supplies in the open market,
litigation or arbitration involving a party or others relating to zoning or other governmental action or
inaction pertaining to the project, malicious mischief, condemnation, and unusually severe weather or
delays of suppliers or subcontractors due to such causes or any similar event and/or occurrences
beyond the control of the Paying Agent.
(h) The Paying Agent shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request,
consent, entitlement order, approval or other paper or document. Anything in this Agreement to the
contrary notwithstanding, in no event shall the Paying Agent be liable for special, indirect, punitive
or consequential loss or damage of any kind whatsoever (including but not limited to lost profits),
even if the Paying Agent has been advised of the likelihood of such loss or damage and regardless of
the form of action.
(i) The Paying Agent agrees to accept and act upon instructions or directions pursuant to
this Agreement sent by unsecured e-mail, facsimile transmission or other similar unsecured
electronic methods, provided, however, that, the Paying Agent shall have received an incumbency
certificate listing persons designated to give such instructions or directions and containing specimen
signatures of such designated persons, which such incumbency certificate shall be amended and
replaced whenever a person is to be added or deleted from the listing. If the District or the County
elects to give the Paying Agent e-mail or facsimile instructions (or instructions by a similar electronic
method) and the Paying Agent in its discretion elects to act upon such instructions, the Paying
Agent’s understanding of such instructions shall be deemed controlling. The Paying Agent shall not
be liable for any losses, costs or expenses arising directly or indirectly from the Paying Agent’s
reliance upon and compliance with such instructions notwithstanding such instructions conflict or are
inconsistent with a subsequent written instruction. The District and the County agree to assume all
risks arising out of the use of such electronic methods to submit instructions and directions to the
Paying Agent, including without limitation the risk of the Paying Agent acting on unauthorized
instructions, and the risk of interception and misuse by third parties.
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Section 8.07 Recitals of District. The recitals contained herein and in the Bonds shall be
taken as the statements of the District, and the Paying Agent assumes no responsibility for their
correctness.
Section 8.08 Paying Agent May Own Bonds. The Paying Agent, in its individual or any
other capacity, may become the owner or pledgee of Bonds with the same rights it would have if it
were not the Paying Agent for the Bonds.
Section 8.09 Investment of Funds and Accounts; Money Held by Paying Agent;
Unclaimed Monies. All moneys in any of the funds and accounts held by the Paying Agent and
established pursuant to this Agreement shall be invested solely in Investment Securities pursuant to a
Written Request of the District. All Investment Securities shall, as directed by the District in writing,
be acquired subject to the limitations set forth in Section 6.04, the limitations as to maturities
hereinafter in this Section set forth and such additional limitations or requirements consistent with
the foregoing as may be established by Written Request and not inconsistent with the duties of the
Paying Agent hereunder. If and to the extent the Paying Agent does not receive investment
instructions from the District with respect to the moneys in the funds and accounts held by the Paying
Agent pursuant to this Agreement, such moneys shall be held uninvested and the Paying Agent shall
thereupon immediately request written investment instructions from the District for such moneys.
Moneys in the funds and accounts created hereunder shall be invested in Investment
Securities maturing or available on demand not later than the date on which it is estimated that such
moneys will be required by the Paying Agent.
All interest, profits and other income received from the investment of moneys in any fund or
account shall remain in that fund or account, unless the District shall direct that such earnings be
transferred to the Rebate Fund. All interest, profits and other income received from the investment
of moneys in the Rebate Fund shall be retained in the Rebate Fund, except as provided in
Section 6.04.
The Paying Agent may not commingle any of the funds or accounts established pursuant to
this Agreement, and all funds or accounts held by the Paying Agent hereunder shall be accounted for
separately as required by this Agreement. The Paying Agent or any of its affiliates may act as
principal or agent in the making or disposing of any investment and, with the prior written consent of
the District, may impose its customary charge therefor. The Paying Agent may, upon consultation
with the District, sell or present for redemption, any Investment Securities so purchased whenever it
shall be necessary to provide moneys to meet any required payment, transfer, withdrawal or
disbursement from the fund or account to which such Investment Security is credited, and the Paying
Agent shall not be liable or responsible for any loss resulting from such investment or redemption.
The Paying Agent shall also provide to the District, in accordance with a Written Request of
the District, with respect to each Investment Security such documentation as is reasonably available
to the Paying Agent and is required by the Code or other applicable law to be obtained by the District
as evidence to establish that each investment has been acquired and disposed of on an established
market in arm’s-length transactions at a price equal to its fair market value and with no amounts
having been paid to reduce the yield on the investments, or shall be United States Treasury
Obligations-State and Local Government Series as set forth in the Tax Certificate. The District
acknowledges that to the extent regulations of the Comptroller of the Currency or other applicable
regulatory entity grants the District the right to receive brokerage confirmations of security
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transactions as they occur at no additional cost, the District specifically waives receipt of such
confirmations to the extent permitted by law. The Paying Agent will furnish the District monthly
cash transaction statements which include detail for all investment transactions made by the Paying
Agent hereunder and all account balances held by the Paying Agent.
Any money held in any fund created pursuant to this Agreement, or held by the Paying Agent
in trust, for the payment of the principal of, redemption premium, if any, or interest on the Bonds and
remaining unclaimed for two years (subject to applicable escheat law) after the principal of all of the
Bonds has become due and payable (whether by maturity or upon prior redemption), during which
period the Paying Agent shall hold such funds without liability for interest, shall be transferred and
applied to the payment of any outstanding general obligation bonds of the District; or, if no such
general obligation bonds of the District are at such time outstanding, said monies shall be transferred
to the general fund of the District as provided and permitted by law.
Section 8.10 Other Transactions. The Paying Agent may engage in or be interested in any
financial or other transaction with the District.
Section 8.11 Interpleader. The Paying Agent may seek adjudication of any adverse claim,
demand, or controversy over its person as well as funds on deposit, in a court of competent
jurisdiction. The Paying Agent has the right to file an action in interpleader in any court of
competent jurisdiction to determine the rights of any person claiming any interest herein.
Section 8.12 Payment; Indemnification. The District shall pay the reasonable fees and
expenses of the Paying Agent (including reasonable fees and disbursements of its counsel and other
agents) incurred in and about the performance of its powers and duties under this Agreement. The
District, to the extent permitted by law, shall indemnify the Paying Agent, its officers, directors,
employees, and agents (“Indemnified Parties”) for, and hold them harmless against any loss, cost,
claim, liability or expense arising out of or in connection with the Paying Agent’s acceptance or
administration of the Paying Agent’s duties hereunder or under the Bonds (except any loss, liability
or expense to be attributable to the Paying Agent’s gross negligence or willful misconduct), including
without limitation the cost and expense (including its counsel fees and disbursements, including the
allocated costs and disbursements of internal counsel) of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or duties under this
Agreement. The provisions of this Section 7.10 shall survive termination of this Agreement and shall
continue for the benefit of any Paying Agent after its resignation or removal as Paying Agent
hereunder.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Amendment, Modification, Waiver. This Agreement may be supplemented
by a Supplemental Agreement to provide for issuance of an additional Series of Bonds pursuant to
the provisions set forth in Section 3.04. This Agreement may also be amended by a Supplemental
Agreement executed by the parties hereto, provided, that no amendment, modification or waiver of
any provision of this Agreement nor consent to any departure by the parties hereto shall in any event
be effective unless the same shall be in writing and signed by such parties, and then such waiver or
consent shall be effective only in the specific instance and for the specific purpose for which given.
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Section 9.02 Notices. Unless otherwise specified herein, all notices, statements, orders,
requests or other communications hereunder by any party to another shall be in writing and shall be
sufficiently given and served upon the other party if delivered personally or if mailed by United
States registered or certified mail, return receipt requested, postage prepaid, or if given by fax,
electronically, or other means of written communication and confirmed by mail:
If to the District: West Contra Costa Unified School District
1108 Bissell Avenue
Richmond, CA 94801-3135
Attn: District
If to the County: Treasurer-Tax Collector
Contra Costa County
Finance Building, Ste 100
625 Court Street
Martinez, CA 94553
If to the Paying Agent: The Bank of New York Mellon Trust Company, N.A.
Los Angeles, CA
Attn: Corporate Trust Services
If to the Depository: The Depository Trust Company
Electronic only: redemptionnotification@dtcc.com
Section 9.03 Governing Law; Procedure in Case of Default. This Agreement shall be
construed and governed in accordance with the laws of the State of California. The procedure to be
used in case of default shall be in accordance with the laws of the State of California.
Section 9.04 Counterparts. This Agreement may be signed in several counterparts, each of
which will constitute an original, but all of which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their officers duly authorized as of the date first written above.
WEST CONTRA COSTA UNIFIED SCHOOL
DISTRICT
By_______________________________________
Authorized Officer
TREASURER-TAX COLLECTOR OF THE
COUNTY OF CONTRA COSTA, CALIFORNIA
By_______________________________________
Authorized Officer
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., as Paying Agent
By_______________________________________
Authorized Officer
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DOCSSF/74918v4/022000-0001
APPENDIX A
[FORM OF TAX CREDIT BOND]
Number UNITED STATES OF AMERICA Maturity Value
R-____ STATE OF CALIFORNIA $___________
COUNTY OF CONTRA COSTA
WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT
GENERAL OBLIGATION BONDS, ELECTION OF 2005, SERIES ____,
QUALIFIED SCHOOL CONSTRUCTION BOND
(TAX CREDIT BOND)
THE WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT AND THE
COUNTY OF CONTRA COSTA HAVE DESIGNATED THIS BOND AS
A QUALIFIED SCHOOL CONSTRUCTION BOND WITHIN THE
MEANING OF SECTION 54F OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
Maturity Date Tax Credit Rate Date as of CUSIP No.
_________, ____ _____% _________, 2009 _______
Registered Owner: Cede & Co.
Principal Sum: ____________________________________________________ DOLLARS
On behalf of the West Contra Costa Unified School District, County of Contra Costa, State of
California (herein called the “District”), the County of Contra Costa (the “County”) hereby
acknowledges itself obligated to and promises to pay, but only from taxes collected by the County for
such purpose pursuant to Section 15250 of the Education Code of the State of California, to the
registered owner identified above or registered assigns, on the maturity date set forth above, the
principal sum specified above (the “Principal Component” or “Maturity Value”) in lawful money of
the United States of America. This Bond shall not bear interest. This Bond is a Tax Credit Bond
issued as a “Qualified School Construction Bond” as defined in Section 54F of the Internal Revenue
Code of 1986, as amended (the “Code”) and is composed of the Principal Component and Tax Credit
components evidenced by the tax credit certificate (the “Tax Credit Certificate”) attached hereto as
Exhibit A, the ownership of which may be separated from the Principal Component. So long as the
ownership of the Tax Credit component of this Bond has not been separated from the ownership of
the Principal Component of this Bond, the owner of this Bond may be eligible to receive tax credits
determined based on the Tax Credit Rate set forth above in accordance with Section 54A of the Code
as described in the Tax Credit Certificate.
The principal hereof is payable to the registered owner hereof upon the surrender hereof at
the designated corporate trust office of The Bank of New York Mellon Trust Company, N.A. as the
initial paying agent, registrar and transfer agent of the District (herein called the “Paying Agent”),
appointed pursuant to a Paying Agent and Transfer Agent Agreement, dated as of December 1, 2009
(the “Paying Agent Agreement”) by and among the District, the County and the Paying Agent. So
long as Cede & Co. or its registered assigns shall be the registered owner of this Bond, payment shall
be made by wire transfer through The Depository Trust Company (“DTC”) as provided in the Paying
Agent Agreement.
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DOCSSF/74918v4/022000-0001
This Bond is one of a duly authorized issue of bonds of like tenor (except for such variations,
if any, as may be required to designate varying series, numbers, denominations, interest rates, interest
payment modes, maturities and redemption provisions), amounting in the aggregate to $__________
and designated as “West Contra Costa Unified School District General Obligation Bonds, Election of
2005, Series D-1, Qualified School Construction Bonds (Tax Credit Bonds)” (the “Bonds”). The
Authorization that authorized the issuance of $400,000,000 of bonds of the District, including the
Bonds, was approved by a vote of at least 55% of the voters voting at an election duly and legally
called, held and conducted in the District on November 8, 2005. The Bonds are issued and sold by
the Board of Supervisors of the County of Contra Costa, State of California, pursuant to and in strict
conformity with the provisions of the Constitution and laws of said State, a resolution (herein called
the “Resolution”) adopted by said Board of Supervisors on ___________, 2009, the Paying Agent
Agreement and a Purchase Contract executed by the District, the County and the underwriters of the
Bonds on ___________, 2009.
The Bonds are issuable as fully registered bonds without coupons in the denomination of
$40,000 principal amount or any integral multiple thereof, provided that no Bond shall have principal
maturing on more than one principal maturity date. Subject to the limitations and conditions and
upon payment of the charges, if any, as provided in the Paying Agent Agreement, Bonds may be
exchanged for a like aggregate principal amount of Bonds of the same series, tenor, and maturity of
other Authorized Denominations.
This Bond is transferable by the registered owner hereof, in person or by attorney duly
authorized in writing, at the designated corporate trust office of the Paying Agent, but only in the
manner, subject to the limitations and upon payment of the charges provided in the Paying Agent
Agreement, and upon surrender and cancellation of this Bond. Upon such transfer, a new Bond or
Bonds of Authorized Denominations of the same series, tenor, maturity and same aggregate principal
amount will be issued to the transferee in exchange herefor.
The County, the District and the Paying Agent may treat the registered owner hereof as the
absolute owner hereof for all purposes, and the County, the District and the Paying Agent shall not be
affected by any notice to the contrary.
The Bonds are not subject to optional or mandatory sinking fund redemption prior to
maturity.
The Bonds shall be subject to extraordinary mandatory redemption, in whole or in part, on
___________, ____, or, in the event of an extension negotiated with the Internal Revenue Service, on
a Tax Credit Allowance Date that occurs on or before ___________, ____, in authorized
denominations, at a redemption price equal to the principal amount of the Bonds called for
redemption, in an amount equal to unexpended proceeds of the sale of the Bonds held by the District,
but only to the extent that the District fails to expend all of the proceeds of the Bonds within three
years of issuance thereof and no extension of the period for expenditure has been granted by the
Internal Revenue Service.
Upon a Determination of Loss of Qualified School Construction Bond Status, the Series D-1
Bonds shall be subject to extraordinary mandatory redemption prior to their fixed maturity date, in
whole on the date designated by the District, which date shall be a date on or prior to the January 15
following the next succeeding __________________ after such Determination of Loss of Qualified
School Construction Bond Status, at a redemption price equal to (i) the principal amount of the
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DOCSSF/74918v4/022000-0001
Bonds called for redemption, plus (ii) the Redemption Premium, plus (iii) accrued interest on the
principal amount of the Bonds called for redemption (calculated at the Tax Credit Rate) from the Tax
Credit Allowance Date immediately preceding the Redemption Date to the date of redemption.
In addition, in the event that any Tax Credits recognized prior to the date of redemption are
determined to be ineligible as Tax Credits as a result of the Determination of Loss of Qualified
School Construction Bond Status, the redemption price shall include an additional amount payable to
the owners, as of the applicable Tax Credit Allowance Dates, of the Tax Credit Certificates for such
Tax Credits equal to the amount of such Tax Credits, plus interest thereon from the applicable Tax
Credit Allowance Date to the date of redemption, at a rate equal to the large corporate underpayment
rate determined from time to time by the Internal Revenue Service.
In the event that the ownership of the Tax Credit Certificates has been separated from the
ownership of the Bonds and registered separately pursuant to the Paying Agent Agreement, the Tax
Credit Certificates related to the redeemed Bonds shall be called for redemption in the same manner
as the Bonds, and the redemption price shall be allocated to the Principal Components of the Bonds
and the Tax Credit Certificates in the proportions set forth in the Table of Redemption Values for
Tax Credits and Principal Strips attached hereto as Schedule I.
In reliance upon the representations, certifications and declarations of the District, the Board
of Supervisors hereby certifies and declares that the total amount of indebtedness of the District,
including the amount of this Bond, is within the limit provided by law; that all acts, conditions and
things required by law to be done or performed precedent to and in the issuance of this Bond have
been done and performed in strict conformity with the laws authorizing the issuance of this Bond;
and that this Bond is in substantially the form prescribed by order of the Board of Supervisors duly
made and entered on its minutes. The Bonds represent an obligation of the District payable out of the
Debt Service Fund of the District, and the money for the payment of principal of, premium, if any,
and redemption price hereof, shall be raised by taxation upon the taxable property of the District.
This bond shall not be entitled to any benefit under the Resolution, or become valid or
obligatory for any purpose, until the certificate of authentication and registration hereon endorsed
shall have been signed by the Paying Agent.
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DOCSSF/74918v4/022000-0001
IN WITNESS WHEREOF the Board of Supervisors of the County of Contra Costa has
caused this WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT GENERAL OBLIGATION
BONDS, ELECTION OF 2005, SERIES ____, QUALIFIED SCHOOL CONSTRUCTION BOND
(TAX CREDIT BOND), to be signed by its Chair and by the Treasurer-Tax Collector of the County,
and to be countersigned by the Clerk of said Board, as of the date set forth above.
[specimen-not for signature]
Chairman of the Board of Supervisors
County of Contra Costa
[specimen-not for signature]
Treasurer-Tax Collector
County of Contra Costa
[specimen-not for signature]
Executive Officer-Clerk
of the Board of Supervisors
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DOCSSF/74918v4/022000-0001
PAYING AGENT’S CERTIFICATE OF AUTHENTICATION
AND REGISTRATION
This is one of the WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT GENERAL
OBLIGATION BONDS, ELECTION OF 2005, SERIES ____, QUALIFIED SCHOOL
CONSTRUCTION BOND (TAX CREDIT BOND), described in the within-mentioned Resolution
and Paying Agent Agreement and authenticated and registered on _______________, 2009.
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., as Paying Agent/Registrar and
Transfer Agent
[specimen-not for signature]
Authorized Officer
DTC LEGEND
Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (“DTC”), to Issuer or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
PRINCIPAL STRIP LEGEND
If the ownership of the Principal Component of this Bond is separated from the ownership of
the related Tax Credit Certificates the following legend shall be applied to this Bond to evidence that
it is a Principal Strip and a new identification number shall be applied to the resulting Principal Strip
that is distinct from the identifying number for the original Bond.
[This is a PRINCIPAL COMPONENT ONLY of one of the WEST CONTRA COSTA
UNIFIED SCHOOL DISTRICT GENERAL OBLIGATION BONDS, ELECTION OF 2005,
SERIES ____, QUALIFIED SCHOOL CONSTRUCTION BOND (TAX CREDIT BOND),
described in the within-mentioned Resolution and Paying Agent Agreement and the registered owner
of this Principal Strip is not entitled to the related Tax Credits associated with the Bond or the
payment of any redemption price allocable to the Tax Credit Certificates related to the Bond of
which this is the Principal Component only. The undersigned has duly authenticated and registered
this Principal Strip on __________________.]
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., as Paying Agent/Registrar and
Transfer Agent
[specimen-not for signature]
Authorized Officer
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DOCSSF/74918v4/022000-0001
(FORM OF ASSIGNMENT)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please print or typewrite name, address and social security or other identifying number of
Transferee)
the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
to transfer the within Bond on the books kept for registration thereof, with full power of substitution
in the premises.
Dated:
Signature Guaranteed
NOTICE: Signature(s) must be guaranteed by NOTICE: The signature to this assignment
an eligible guarantor institution. must correspond with the name as it appears
upon the within Bond in every particular,
without alteration or enlargement or any
change whatsoever.
A-7
DOCSSF/74918v4/022000-0001
EXHIBIT A
Certificate Number UNITED STATES OF AMERICA Notional Amount
TC-____ STATE OF CALIFORNIA $___________
COUNTY OF CONTRA COSTA
WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT
GENERAL OBLIGATION BONDS, ELECTION OF 2005, SERIES ____,
QUALIFIED SCHOOL CONSTRUCTION BOND
(TAX CREDIT BOND)
Sale Date of
Related Bonds
Issuance Date of
Related Bonds
Maturity Date of
Related Bonds
Applicable
Tax Credit Rate
CUSIP No. of
Related Bonds
_________, ____ _________, ____ _________, ____ _____% _______
Tax Credit
Allowance Date
CUSIP No. (if
stripped from
Related Bonds
Base: __________
Tax Credit
Allowance Date
CUSIP No. (if
stripped from
Related Bonds
Base: __________
Tax Credit
Allowance Date
CUSIP No. (if
stripped from
Related Bonds
Base: __________
Tax Credit
Allowance Date
CUSIP No. (if
stripped from
Related Bonds
Base: __________
Dated: ___________, 2009
Registered Owner: Cede & Co.
Notional Amount of
this Certificate: ______________________________________ DOLLARS
This certificate evidences the entitlement of the registered owner identified above or
registered assigns to the credit (the “Tax Credit”), under Section 54A of the Internal Revenue Code
of 1986, as amended (the “Code”), against the tax imposed by Chapter 1 of the Code (“Chapter 1”),
with respect to the West Contra Costa Unified School District General Obligation Bonds, Election of
2005, Series D-1, Qualified School Construction Bonds (Tax Credit Bonds) (the “Related Bonds”),
designated as qualified school construction bonds pursuant to Section 54F of the Code by the West
Contra Costa Unified School District, County of Contra Costa, State of California (the “District”)
and the County of Contra Costa, California (the “County,” and together with the District, the
“Issuer”). This certificate evidences the Tax Credit component of the Related Bonds and the
obligation of the District to maintain the status of the Related Bonds as qualified school construction
bonds under the Code.
“Tax Credit Allowance Date” means each March 15, June 15, September 15, and
December 15, beginning on the date of issuance of the Related Bonds and ending on the maturity
date thereof or such of those dates as are specified in the table on the cover page of this Tax Credit
Certificate.
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DOCSSF/74918v4/022000-0001
The holder hereof on the Tax Credit Allowance Dates specified above shall be allowed a
credit against the tax imposed by Chapter 1 in an amount equal to twenty five percent (25%) of the
annual credit determined with respect to the Related Bonds, being the product of: (1) the applicable
tax credit rate set forth above (the “Applicable Rate”), and (2) the outstanding face amount of the
Related Bonds (the “Notional Amount”).
This certificate is executed and delivered in conjunction with and as a component part of the
Related Bonds and, together with other similar certificates relating to the Bonds, designated as
“Certificates Evidencing Tax Credit Entitlement related to the West Contra Costa Unified School
District General Obligation Bonds, Election of 2005, Series D-1, Qualified School Construction
Bonds (Tax Credit Bonds)” (the “Tax Credit Certificates”). The Authorization that authorized the
issuance of $400,000,000 of bonds of the District, including the Related Bonds, was authorized by a
vote of at least 55% of the voters voting at an election duly and legally called, held and conducted in
the District on November 8, 2005. The Certificates are executed and delivered by the Board of
Supervisors of the County and the Board of Education, pursuant to and in strict conformity with the
provisions of the Constitution and laws of said State, a resolution of the Board of Education, adopted
on November 4, 2009, and a resolution (herein called the “Resolution”) adopted by the Board of
Supervisors of the County on ______________, _______, and subject to the more particular terms
specified in a Purchase Contract, executed by the District, the County and the underwriters of the
Related Bonds on ___________, 2009, and the Paying Agent and Transfer Agent Agreement, dated
as of December 1, 2009 (the “Paying Agent Agreement”), by and among the District, the County and
The Bank of New York Mellon Trust Company, N.A., as the initial paying agent, registrar and
transfer agent of the District (herein called the “Paying Agent”).
The Tax Credit Certificates are subject to registration, transfer and exchange as provided in
and subject to the terms and provisions of the Paying Agent Agreement.
The Related Bonds shall be subject to extraordinary mandatory redemption, in whole or in
part, on [______________, _______], or, in the event of an extension negotiated with the Internal
Revenue Service, on a Tax Credit Allowance Date that occurs on or before [______________,
_______], in authorized denominations, at a redemption price equal to the principal amount of the
Bonds called for redemption, in an amount equal to unexpended proceeds of the sale of the Related
Bonds held by the District, but only to the extent that the District fails to expend all of the proceeds
of the Related Bonds within three years of issuance thereof and no extension of the period for
expenditure has been granted by the Internal Revenue Service.
Upon a Determination of Loss of Qualified School Construction Bond Status, the Related
Bonds shall be subject to extraordinary mandatory redemption prior to their fixed maturity date, in
whole on the date designated by the District, which date shall be a date on or prior to the
[__________] following the next succeeding [__________________] after such Determination of
Loss of Qualified School Construction Bond Status, at a redemption price equal to (i) the principal
amount of the Related Bonds called for redemption, plus (ii) the Redemption Premium, plus
(iii) accrued interest on the principal amount of the Related Bonds called for redemption (calculated
at the Tax Credit Rate) from the Tax Credit Allowance Date immediately preceding the Redemption
Date to the date of redemption.
In addition, in the event that any Tax Credits recognized prior to the date of redemption are
determined to be ineligible as Tax Credits as a result of the Determination of Loss of Qualified
School Construction Bond Status, the redemption price shall include an additional amount payable to
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DOCSSF/74918v4/022000-0001
the owners, as of the applicable Tax Credit Allowance Dates, of the Tax Credit Certificates for such
Tax Credits equal to the amount of such Tax Credits, plus interest thereon from the applicable Tax
Credit Allowance Date to the date of redemption, at a rate equal to the large corporate underpayment
rate determined from time to time by the Internal Revenue Service.
In the event that the ownership of the Tax Credit Certificates has been separated from the
ownership of the Related Bonds and registered separately pursuant to the Paying Agent Agreement,
the Tax Credit Certificates related to the redeemed Related Bonds shall be called for redemption in
the same manner as the Related Bonds, and the redemption price shall be allocated to the Principal
Components of the Related Bonds and the Tax Credit Certificates in the proportions set forth in the
Table of Redemption Values for Tax Credits and Principal Strips attached hereto as Schedule I.
The District and the County hereby certify and declare that all acts, conditions and things
required by law to be done or performed precedent to and in the execution and delivery of this Tax
Credit Certificate have been done and performed in strict conformity with the laws authorizing the
execution and delivery of this Tax Credit Certificate; and that this Tax Credit Certificate is in
substantially the form prescribed by order of the Board of Supervisors duly made and entered on its
minutes.
The District shall not take any action or inaction, or fail to take any action, or permit any
action to be taken on its behalf or cause or permit any circumstances within its control to arise or
continue, if such action or inaction would cause the Related Bonds to not be qualified school
construction bonds under Section 54F of the Code. Without limiting the generality of the forgoing,
the Issuer shall comply with the instructions and requirements of the Tax Certificate of the District
(the “Tax Certificate”). Notwithstanding any provisions of this paragraph, if the District shall
provide to the County an opinion of Bond Counsel that any specified action required under the Tax
Certificate is no longer required or that some further or different action is required in order for the
Related Bonds to be qualified school construction bonds under Section 54F of the Code, the County
may conclusively rely on such opinion in complying with the requirements of this paragraph and of
the Tax Certificate, and the covenants hereunder shall be deemed to be modified to that extent.
This Certificate shall not be entitled to any benefit or be valid for any purpose unless signed
by manual or facsimile signature of an authorized signatory of the County and an authorized
signatory of the District and authenticated by the manual signature of a duly authorized officer of the
Paying Agent.
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DOCSSF/74918v4/022000-0001
IN WITNESS WHEREOF the Board of Supervisors of the County of Contra Costa has
caused this CERTIFICATE EVIDENCING TAX CREDIT ENTITLEMENT RELATED TO THE
WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT GENERAL OBLIGATION BONDS,
ELECTION OF 2005, SERIES ____, QUALIFIED SCHOOL CONSTRUCTION BOND (TAX
CREDIT BOND), to be signed by the Treasurer-Tax Collector of the County and the Superintendent
as of the date set forth above.
[specimen-not for signature]
Treasurer-Tax Collector
County of Contra Costa
[specimen-not for signature]
Superintendent
West Contra Costa Unified School District
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DOCSSF/74918v4/022000-0001
PAYING AGENT’S CERTIFICATE OF AUTHENTICATION
AND REGISTRATION
This is one of the CERTIFICATES EVIDENCING TAX CREDIT ENTITLEMENT
RELATED TO THE WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT GENERAL
OBLIGATION BONDS, ELECTION OF 2005, SERIES D-1, QUALIFIED SCHOOL
CONSTRUCTION BOND (TAX CREDIT BOND), described in the within-mentioned Resolution
and Paying Agent Agreement and authenticated and registered on December 1, 2009.
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., as Paying Agent/Registrar and
Transfer Agent
[specimen-not for signature]
Authorized Officer
DTC LEGEND
Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (“DTC”), to Issuer or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
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DOCSSF/74918v4/022000-0001
SCHEDULE I
TABLE OF REDEMPTION VALUES FOR TAX CREDITS AND PRINCIPAL STRIPS
B-1
DOCSSF/74918v4/022000-0001
APPENDIX B
FORM OF TAX CREDIT STRIP REQUEST
To: [via email] _________@bnymellon.com
Re: Certificates Evidencing Tax Credit Entitlement related to the West Contra Costa Unified
School District General Obligation Bonds, Election of 2005, Series ____, Qualified School
Construction Bonds (Tax Credit Bonds)
The undersigned, ______________________, hereby certifies as follows:
1. I am the Registered Owner of (or, with respect to Book-Entry Bonds, the DTC
Participant for) West Contra Costa Unified School District General Obligation Bonds, Election of
2005, Series D-1, Qualified School Construction Bonds (Tax Credit Bonds) (the “Bonds”), in the
principal amount set forth in the attached Schedule I hereto.
2. Pursuant to the provisions Article VI of that certain Paying Agent and Transfer Agent
Agreement, dated as of _______________ 1, 2009 (the “Agreement”), among West Contra Costa
Unified School District, the County of Contra Costa, California, and The Bank of New York Mellon
Trust Company, N.A., as paying and transfer agent (the “Paying Agent”), I hereby request the
separation of the Tax Credit Certificates from the Bonds identified in Paragraph 1 above and direct
the Paying Agent to take such necessary action in connection therewith as set forth in Article VI of
the Agreement.
Capitalized terms used but not defined herein shall have the meanings set forth in the
Agreement. The form of this Tax Credit Strip Request may be modified or amended in the sole
discretion of the Paying Agent.
Dated: ____________.
By:
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DOCSSF/74918v4/022000-0001
SCHEDULE I
IDENTIFICATION OF TAX CREDIT BONDS TO BE STRIPPED
Withdrawal: Amount (dollars): Participation Number:
Original CUSIP
Deposits:
Strip CUSIP
TAX Credit Strips
C-1
DOCSSF/74918v4/022000-0001
APPENDIX C
FORM OF TAX CREDIT CERTIFICATE EXPIRATION NOTICE TO DTC
To: The Depository Trust Company – via email only to: redemptionnotification@dtcc.com
Re: Certificates Evidencing Tax Credit Entitlement related to the West Contra Costa Unified
School District General Obligation Bonds, Election of 2005, Series D-1, Qualified School
Construction Bonds (Tax Credit Bonds)
Expiration/Total Redemption:
NOTICE IS HEREBY GIVEN that the amounts of Tax Credit Certificates identified below by the
CUSIP number shall expire on _______ 15, 20__, the applicable Tax Credit Allowance Date, in full
with no value.
Expiration Date Price: Rate: Amount: CUSIP
_________ 15, 20__ ZERO ZERO ZERO ________
For purposes of DTC records, the expiration of the Tax Credit Certificates is considered a
redemption of the securities, and the Tax Credit Certificates identified herein are being called for
redemption at no principal amount or accrued interest. On the expiration date the position in this
CUSIP must be cancelled. No further Tax Credits will be offered.
Dated: [45 days prior to Expiration Date/Tax Credit Allowance Date]
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., as Paying Agent
Authorized Representative
DOCSSF/75009v3/022000-0001
$________________
WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT
GENERAL OBLIGATION BONDS, ELECTION OF 2005, SERIES D-1
(Qualified School Construction Tax Credit Bonds)
$________________
WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT
GENERAL OBLIGATION BONDS, ELECTION OF 2005, SERIES D-2
(Tax-Exempt)
BOND PURCHASE CONTRACT
November __, 2009
Board of Supervisors
County of Contra Costa
Martinez, California
Board of Education
West Contra Costa Unified School District
Richmond, California
Ladies and Gentlemen:
The undersigned Piper Jaffray & Co., (the “Underwriter”) offers to enter into this
Bond Purchase Contract with the County of Contra Costa (the “County”), acting through its
Treasurer-Tax Collector (the “County Treasurer”), and with the Board of Education of the West
Contra Costa Unified School District (the “District”), acting through its Associate Superintendent,
Business Services. The offer made hereby is subject to acceptance by the County and the District by
execution and delivery of this Bond Purchase Contract (the “Purchase Contract”) to the Underwriter
at or prior to 11:59 p.m., California time, on the date hereof, but it shall be irrevocable until such
time as it is sooner accepted or rejected by the County and the District. Upon acceptance of this offer
by the County and the District in accordance with the terms hereof, this Purchase Contract will be
binding upon the County and the District and upon the Underwriter. Capitalized terms used and not
otherwise defined herein shall have the meanings ascribed to such terms in the County Resolution
described in Section 2 hereof.
1. Purchase and Sale. Upon the terms and conditions and upon the basis of the
representations, covenants and agreements hereinafter set forth, the Underwriter hereby agrees to
purchase from the County for offering to the public, and the County hereby agrees, on behalf of the
District, to sell to the Underwriter for such purpose, all (but not less than all) of
(i) $________________ aggregate principal amount of the District’s General Obligation Bonds,
Election of 2005, Series D-1 (Qualified School Construction Tax Credit Bonds) (the “Series D-1
Bonds”) and (ii) $________________ aggregate principal amount of the District’s General
Obligation Bonds, Election of 2005, Series D-2 (Tax-Exempt) (the “Series D-2 Bonds”). The
Underwriter shall purchase the Series D-1 Bonds at a price of $______________ (consisting of the
aggregate principal amount of such Bonds of $______________, [less underwriter’s discount of
$______________, less a bond insurance premium of $______________]). The Underwriter shall
purchase the Series D-2 Bonds at a price of $______________ (consisting of the aggregate principal
amount of such Bonds of $______________, plus original issue premium of $______________, less
underwriter’s discount of $______________, less a bond insurance premium of $______________
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DOCSSF/75009v3/022000-0001
and less $______________ of original issue premium to be retained by the Underwriter to pay costs
of issuance, as provided in Section 10 hereof).
2. The Bonds. The Bonds shall be issued pursuant to Article 4.5 of Chapter 3 of
Part 1 of Division 2 of Title 5 of the Government Code of the State of California, and in accordance
with Resolution No. __-_____ of the Board of Education of the District, adopted on November 4,
2009 (the “District Resolution”), and a Resolution No. 2009-____ of the Board of Supervisors of the
County, adopted on November __, 2009 (the “County Resolution”). The Bonds shall conform in all
respects to the terms and provisions set forth in the County Resolution, and, with respect to the
Series D-1 Bonds, in the Paying Agent Agreement, dated as of December 1, 2009, by and among the
District, the County and The Bank of New York Mellon Trust Company, N.A., as paying agent (the
“Paying Agent Agreement”), and in this Purchase Contract, including in Exhibit A hereto.
The Series D-1 Bonds are being issued as “qualified school construction bonds” as
defined in Section 54F of the Internal Revenue Code of 1986, as amended (the “Code”) and are
comprised of a principal component (the “Principal Component”)[, including interest thereon,] and
tax credit components (the “Tax Credit Components”) evidenced by the Tax Credit Certificates
associated with each Tax Credit Bond (the “Tax Credit Certificates”). The Series D-1 Bonds shall be
dated the date of their delivery, and shall mature on August 1 in each of the year, in the principal
amount, with the Tax Credit Rate, [and shall bear taxable interest at the rate], all as set forth in
Exhibit A, which is incorporated herein by this reference. [Interest on the current interest Series D-1
Bonds shall be payable on February 1 and August 1 of each year, commencing February 1, 2010.]
The Series D-2 Bonds shall be issued in the Principal or Denominational Amounts,
shall bear or accrete interest at the rates, shall mature in the years and shall be subject to redemption
all as set forth in Exhibit A hereto. The Current Interest Bonds shall be dated the date of delivery
thereof and shall be payable as to interest on each February 1 and August 1, commencing February 1,
2010. The Capital Appreciation Bonds shall accrete interest from the date of delivery thereof,
compounded semiannually on February 1 and August 1, commencing on February 1, 2010, and shall
be paid at maturity as shown in Exhibit A hereto.
The payment of principal of and interest (but not any prepayment premium) on the
Bonds will be secured by a municipal bond insurance policy (the “Insurance Policy”) to be issued
simultaneously with the issuance of the Bonds by _________________ (“Insurer”).
The Bonds shall otherwise be as described in the Official Statement of the District
with respect to the Bonds, dated November __, 2009 (the “Official Statement”).
The Bonds shall be in full book-entry form. One fully registered certificate for each
maturity of the Bonds which are current interest bonds and one fully registered certificate for each
maturity of the Bonds which are capital appreciation bonds and convertible capital appreciation
bonds will be prepared and delivered as described in Section 9 hereof, registered in the name of Cede
& Co., as nominee of The Depository Trust Company, New York, NY (“DTC”), and will be made
available to the Underwriter for inspection at such place as may be mutually agreed to by the
Underwriter and the District, not less than one (1) business day prior to the Closing Date, as defined
in Section 9 hereof. The Underwriter shall order CUSIP identification numbers and the District shall
cause such CUSIP identification numbers to be printed on the Bonds, but neither the failure to print
such number on any Bond nor any error with respect thereto in the Bonds or in the Official Statement
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DOCSSF/75009v3/022000-0001
shall constitute cause for a failure or refusal by the Underwriter to accept delivery of and pay for the
Bonds in accordance with the terms of this Purchase Contract.
3. Offering. The Underwriter agrees to make a bona fide public offering of all
the Bonds initially at the prices set forth in Exhibit A hereto. After such initial public offering, the
Underwriter reserves the right to change such offering prices from time to time as it deems necessary.
On or prior to the Closing Date, the Underwriter shall provide the District with information regarding
the prices at which a representative portion of each maturity of the Bonds was sold to the public, in
such form as the District and Bond Counsel may reasonably request, for purposes of determining the
yield on the Bonds.
The County hereby ratifies, approves, and confirms the distribution of this Purchase
Contract and the County Resolution and the Paying Agent Agreement, and the District hereby
ratifies, approves, and confirms the distribution of this Purchase Contract and the Preliminary
Official Statement of the District with respect to the Bonds, dated November __, 2009 (together with
the appendices thereto, any documents incorporated therein by reference, and any supplements or
amendments thereto, the “Preliminary Official Statement”), in connection with the public offering
and sale of the Bonds by the Underwriter.
The Underwriter hereby represents that it has received and reviewed the Preliminary
Official Statement, and agrees that it will provide, consistent with the requirements of Municipal
Securities Rulemaking Board (“MSRB”) Rule G-32, for the delivery of a copy of the Official
Statement to each customer who purchases any Bonds during the underwriting period (as such term
is defined in MSRB Rule G-11), and to deliver a copy of the Official Statement to a national
repository on or before the Closing Date, and otherwise to comply with all applicable statutes and
regulations in connection with the offering and sale of the Bonds, including, without limitation,
MSRB Rule G-32 and 17 CFR Section 240.15c2-12, promulgated by the Securities and Exchange
Commission (“Rule 15c2-12”).
The Underwriter hereby agrees that prior to the time the final Official Statement is
available, the Underwriter will send to any potential purchaser of the Bonds, upon request, a copy of
the most recent Preliminary Official Statement. Such Preliminary Official Statement shall be sent by
first class mail (or other equally prompt means) not later than the first business day following the
date upon which each such request is received.
The District will deliver to the Underwriter within seven (7) business days from the
date hereof, so many copies of the Official Statement of the District with respect to the Bonds as the
Underwriter shall reasonably request, signed by an authorized District representative, dated as of the
date hereof, substantially in the form of the Preliminary Official Statement with such changes thereto
as shall be approved by the Underwriter, which approval shall not be unreasonably withheld.
4. Representations and Agreements of the County. The County represents to
and agrees with the Underwriter that, as of the date hereof and as of the Closing Date:
(a) The County is a political subdivision duly organized and validly existing
under the Constitution and general laws of the State of California.
(b) The County is duly authorized and has full legal right, power and authority to
issue, sell and deliver the Bonds on behalf of the District, pursuant to the direction of the District
4
DOCSSF/75009v3/022000-0001
contained in the District Resolution and the Paying Agent Agreement, and to provisions of the laws
of the State of California.
(c) The County has full legal right, power and authority to enter into this
Purchase Contract and the Paying Agent Agreement, to adopt the County Resolution and to observe
and perform the covenants and agreements hereof and of the Paying Agent Agreement and the
County Resolution to be observed and performed by the County.
(d) The County has duly adopted the County Resolution in accordance with the
laws of the State; the County Resolution is in full force and effect and has not been amended,
modified or rescinded and all representations of the County set forth in the County Resolution are
true and correct on the date hereof; the County has duly authorized and approved the execution and
delivery of the Bonds, the Paying Agent Agreement, and this Purchase Contract, and the observance
and performance by the County through its officers and agents of its covenants and agreements
contained in the Bonds, the Paying Agent Agreement, and this Purchase Contract required to have
been observed or performed at or prior to the Closing Date; and the County has complied, and will at
the Closing be in compliance in all respects, with the obligations in connection with the issuance of
the Bonds on its part contained in this Purchase Contract, the Paying Agent Agreement, the County
Resolution, and the Bonds.
(e) The Preliminary Official Statement as of its date does not, and the Official
Statement as of its date will not, and if supplemented or amended, as of the date of any such
supplement or amendment will not, solely with respect to the information contained therein
describing the County’s investment policy, current portfolio holdings, and valuation procedures (as
they relate to funds of the District held by the County), contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
5. Representations and Agreements of the District. The District represents to
and agrees with the Underwriter that, as of the date hereof and as of the Closing Date:
(a) The District is a school district duly organized and validly existing under the
Constitution and general laws of the State of California.
(b) The District has full legal right, power and authority to enter into this
Purchase Contract and the Paying Agent Agreement, to adopt the District Resolution, and to observe
and perform the covenants and agreements hereof, and of the the Paying Agent Agreement and the
District Resolution to be observed and performed by the District.
(c) The District has duly adopted the District Resolution in accordance with the
laws of the State; the District Resolution is in full force and effect and has not been amended,
modified or rescinded, and all representations of the District set forth in the District Resolution are
true and correct; the District has duly authorized and approved the execution and delivery of the
Bonds, the Paying Agent Agreement, and this Purchase Contract, and the observance and
performance by the District through its officers and agents of its covenants and agreements contained
in the Bonds, the Paying Agent Agreement, and this Purchase Contract required to have been
observed or performed at or prior to the Closing Date; and the District has complied, and will at the
Closing be in compliance in all respects, with the obligations in connection with the issuance of the
Bonds on its part contained in this Purchase Contract, the Paying Agent Agreement, the District
Resolution, and the Bonds.
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DOCSSF/75009v3/022000-0001
(d) The District represents to the Underwriter that the Preliminary Official
Statement has been “deemed final” by the District as of its date within the meaning of
paragraph (a)(2) of Rule 15c2-12, except for the omission of some or all of such information the
omission of which is permitted under Rule 15c2-12.
(e) The Preliminary Official Statement as of its date does not, and the Official
Statement as of its date will not, and if supplemented or amended, as of the date of any such
supplement or amendment will not, contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made therein, in light of the circumstances under
which they were made, not misleading; in each case excluding therefrom any information contained
therein relating to DTC or its book-entry only system, information contained therein describing the
County’s investment policy, current portfolio holdings, and valuation procedures (as they relate to
funds of the District held by the County Treasurer-Tax Collector), information provided by the
Underwriter concerning the reoffering of the Bonds and the information relating to the Insurer or the
Insurance Policy to be issued thereby insuring payment on the [Bonds], as to all of which the District
expresses no view. The District disclaims any obligation after the date of Closing to update the
Preliminary Official Statement and the Official Statement.
(f) The District will undertake, pursuant to the District Resolution and a
Continuing Disclosure Certificate, to provide certain annual financial information and notices of the
occurrence of certain events, if material. A description of this undertaking is set forth in the
Preliminary Official Statement and will also be set forth in the final Official Statement.
(g) The District has, and has had, no financial advisory relationship with the
Underwriter with respect to the Bonds, nor with any investment firm controlling, controlled by or
under common control with the Underwriter.
6. Representations and Agreements of the Underwriter. The Underwriter
represents to and agrees with the County and the District that, as of the date hereof and as of the
Closing Date:
(a) The Underwriter is duly authorized to execute this Purchase Contract and to
take any action under this Purchase Contract required to be taken by it.
(b) The Underwriter is in compliance with MSRB Rule G-37 with respect to the
County and the District, and is not prohibited thereby from acting as underwriter with respect to
securities of the District.
(c) The Underwriter has, and has had, no financial advisory relationship with the
District or the County with respect to the Bonds, and no investment firm controlling, controlled by or
under common control with the Underwriter has or has had any such financial advisory relationship.
(d) The Underwriter has reasonably determined that the District’s undertaking
pursuant to Sections 5(f) and 7(a)(11) hereof to provide continuing disclosure with respect to the
Bonds is sufficient to effect compliance with Rule 15c2-12.
7. Conditions to Closing. (a) At or before Closing, and contemporaneously
with the acceptance of delivery of the Bonds, the District will provide to the Underwriter:
6
DOCSSF/75009v3/022000-0001
(1) a certificate, signed by an official of the District, confirming to the
Underwriter that the Preliminary Official Statement as of its date did not, and the Official
Statement as of its date and at the time of Closing did not and does not, to the best knowledge
of said official, contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading, and that there has been no material adverse
change in the financial condition or affairs of the District which would make it unreasonable
for the Underwriter of the Bonds to rely upon the Official Statement in connection with the
resale of the Bonds, excluding in each case any information contained in the Official
Statement relating to DTC or its book-entry only system, information contained therein
describing the County’s investment policy, current portfolio holdings, and valuation
procedures (as they relate to funds of the District held by the County Treasurer-Tax
Collector), information provided by the Underwriter concerning the reoffering of the Bonds
and the information relating to the Insurer or the Insurance Policy to be issued thereby
insuring payment on the [Bonds].
(2) a certificate, signed by an official of the County, confirming to the
Underwriter that the Preliminary Official Statement as of its date did not, and the Official
Statement as of its date and at the time of Closing did not and does not, to the best knowledge
of said official, solely with respect to the information contained therein describing the
County’s investment policy, current portfolio holdings, and valuation procedures (as they
relate to funds of the District held by the County), contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements made therein, in
the light of the circumstances under which they were made, not misleading.
(3) a certificate or certificates, signed by appropriate officials of the District or
the County or both, confirming to the Underwriter that, as of the date of this Purchase
Contract and at the time of Closing, to the best knowledge of said official or officials, there is
no litigation pending concerning the validity of the Bonds, the legal existence of the District
or the County, or the entitlement of the officers of the County who have signed the Bonds, or
the entitlement of the officers of the District who have signed the various certificates and
agreements of the District relating to the issuance and sale of Bonds, to their respective
offices.
(4) a certificate or certificates, signed by an official of the District, confirming to
the Underwriter that as of the Closing Date all of the representations of the District contained
in this Purchase Contract are true, and that the District Resolution is in full force and effect
and has not been amended, modified or rescinded.
(5) a certificate or certificates, signed by an official of the County, confirming to
the Underwriter that as of the Closing Date all of the representations of the County contained
in this Purchase Contract are true, and that the County Resolution is in full force and effect
and has not been amended, modified or rescinded.
(6) the opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation,
Bond Counsel with respect to the issuance of the Bonds (“Bond Counsel”), addressed to the
District, approving the validity of the Bonds, substantially in the form set forth as
Appendix __ to the Official Statement.
7
DOCSSF/75009v3/022000-0001
(7) a supplemental opinion of Bond Counsel dated the Closing Date and
addressed to the Underwriter, to the effect that the statements contained in the Official
Statement in the sections entitled “INTRODUCTION – Tax Matters,” “THE BONDS”
(except under the headings “Investment of Bond Proceeds,” “Estimated Sources and Uses of
Funds,” “Semiannual Debt Payments” and “Book-Entry Only System”), “TAX MATTERS,”
and “APPENDIX __ – FORMS OF FINAL OPINION OF BOND COUNSEL,” excluding
any material that may be treated as included under such captions by cross-reference, insofar
as such statements expressly summarize certain provisions of the District Resolution, the
County Resolution and the Paying Agent Agreement, and the form and content of the opinion
of Bond Counsel, are accurate in all material respects.
(8) the opinion of GCR LLP, Disclosure Counsel with respect to the issuance of
the Bonds (“Disclosure Counsel”) to the District, in form satisfactory to the District and the
Underwriter, dated the date of Closing and addressed to the District and the Underwriter.
(9) the duly executed Tax Certificate of the District, dated the date of Closing, in
form satisfactory to Bond Counsel.
(10) the receipt of the County Treasurer-Tax Collector confirming payment by the
Underwriter of the Purchase Price of the Bonds.
(11) the Continuing Disclosure Certificate of the District, in substantially the form
attached to the Preliminary Official Statement.
(12) the letters of Moody’s Investors Service (“Moody’s), Fitch Ratings (“Fitch”),
and Standard & Poor’s Ratings Service (“S&P”) to the effect that such rating agencies have
rated the Bonds “___,” “___,” and “___,” respectively (or such other equivalent rating as
each such rating agencies may give) [based on the issuance of a municipal bond insurance
policy with respect to the Bonds by the Insurer], and that each such rating has not been
revoked or downgraded, and the letters of Moody’s, Fitch, and S&P to the effect that such
rating agencies have provided underlying ratings on the Bonds of “___,” “___,” and “___,”
respectively, which ratings are in full force and effect on the Closing Date.
(13) a certified copy of each of the adopted District Resolution and the adopted
County Resolution.
(14) an executed copy of the Official Statement.
(15) an executed copy of this Purchase Contract.
(16) an executed copy of the Paying Agent Agreement, in form and substance
satisfactory to the Underwriter.
(17) a certified copy of the municipal bond insurance policy issued by the Insurer
with respect to the [Bonds], the tax certificate representations of the Insurer, and an opinion
of counsel to the Insurer regarding the enforceability of such policy and the accuracy of the
information contained in the Official Statement under the caption “Bond Insurance,” in form
reasonably satisfactory to the District, Bond Counsel and the Representative.
8
DOCSSF/75009v3/022000-0001
(18) a certificate of the Insurer with respect to the Bonds, dated the Closing Date,
signed by an authorized officer of said insurer, that (i) the information contained under the
caption “BOND INSURANCE” in the Official Statement does not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they were
made, not misleading and (ii) the specimen of the bond insurance policy contained in
Appendix F to the Official Statement is a true and correct specimen of the policy being issued
by said insurer of the Bonds.
(19) evidence that the District has received an allocation of Qualified School
Construction Bond authority for calendar year 2009 pursuant to Section 54A of the Code in
an amount at least equal to the principal amount of the Bonds.
(20) such additional legal opinions, certificates, proceedings, instruments, and
other documents as Bond Counsel or the Underwriter may reasonably request in order to
evidence compliance (A) by the District or the County with legal requirements, (B) the truth
and accuracy, as of the time of Closing, of the representations of the District and the County
contained herein and in the Paying Agent Agreement or in the Official Statement, and (C) the
due performance or satisfaction by the District and the County at or prior to such time of all
agreements then to be performed and all conditions then to be satisfied by such parties.
(b) At or before Closing, and contemporaneously with the acceptance of delivery
of the Bonds and the payment of the Purchase Price thereof, the Underwriter will provide to the
District:
(1) the receipt of the Underwriter, in form satisfactory to the District and the
County and signed by an authorized officer of the Underwriter, confirming delivery of the
Bonds to the Underwriter and the satisfaction of all conditions and terms of this Purchase
Contract by the District and the County, respectively, and confirming to the District and the
County that as of the Closing Date all of the representations of the Underwriter contained in
this Purchase Contract are true and correct in all material respects.
(2) the certification of the Underwriter, in form satisfactory to Bond Counsel,
regarding the prices at which the Bonds have been reoffered to the public, as described in
Section 3 hereof.
8. Termination. (a) By District or County. In the event of the District’s failure
to cause the Bonds to be delivered at the Closing, or inability of the District or the County to satisfy
the conditions to the obligations of the Underwriter contained herein (unless waived by the
Underwriter), or if the obligations of the Underwriter shall be terminated for any reason permitted by
this Purchase Contract, this Purchase Contract shall terminate.
(b) By Underwriter.
(1) Excused. The Underwriter may terminate this Purchase Contract, without
any liability therefor, by notification to the District and the County if as of the Closing Date
any of the following shall have had a material adverse effect on the marketability or market
price of the Bonds, in the reasonable opinion of the Underwriter, upon consultation with the
District and the County:
9
DOCSSF/75009v3/022000-0001
(A) There shall have occurred and be continuing the declaration of a general
banking moratorium by any authority of the United States or the State of New York
or the State of California;
(B) There shall be in force a general suspension of trading or other material
restrictions not in force as of the date hereof on the New York Stock Exchange or
other national securities exchange;
(C) Legislation shall have been enacted by the Congress of the United States, or
passed by and still pending before either House of the Congress, or recommended or
endorsed to the Congress for passage by the President of the United States, or
favorably reported for passage to and still pending before either House of the
Congress by any committee of such House to which such legislation has been
referred for consideration, or a decision shall have been rendered by a court of the
United States, or the United States Tax Court, with respect to federal taxation of
interest received on securities of the general character of the Bonds (exclusive of the
Build America Bonds), or legislation shall have been enacted by the State of
California which renders interest on the Bonds not exempt from State of California
personal income taxes;
(D) The formal declaration of war by Congress or a major escalation of military
hostilities by order of the President of the United States, or the occurrence of any
other declared national emergency that interrupts or causes disorder to the operation
of the financial markets in the United States.
(E) Legislation shall have been enacted, or a decision of a court of the United
States shall have been rendered or any action shall have been taken by, or on behalf
of, the Securities and Exchange Commission or any other governmental agency
having jurisdiction in the subject matter which, in the opinion of Bond Counsel, has
the effect of requiring the contemplated distribution of the Bonds to be registered
under the Securities Act of 1933, as amended, or the Securities Exchange Act of
1934, as amended, or the County Resolution or the Paying Agent Agreement to be
qualified under the Trust Indenture Act of 1939, as amended; or
(F) The New York Stock Exchange or other national securities exchange, or any
governmental authority, shall impose and there shall be in effect, as to the Bonds or
obligations of the general character of the Bonds, any material restrictions not now in
force, or increase materially those now in force, with respect to the extension of credit
by, or the charges to the net capital requirements of, underwriters.
(2) Unexcused. In the event the Underwriter shall fail (other than for a reason
permitted by this Purchase Contract) to pay for the Bonds upon tender of the Bonds at the
Closing, the Underwriter shall have no right in or to the Bonds.
9. Closing. At or before 9:00 a.m., California time, December __, 2009, or at
such other date and time as shall have been mutually agreed upon by the County, the District, and the
Underwriter (the “Closing Date”), the District will deliver or cause to be delivered to the Underwriter
the Bonds in book-entry form duly executed by the County, together with the other documents
described in Section 7(a) hereof; and the Underwriter will accept such delivery and pay the Purchase
Price of the Bonds as set forth in Section 1 hereof in immediately available funds by federal funds
10
DOCSSF/75009v3/022000-0001
wire, in an aggregate amount equal to such Purchase Price, plus accrued interest, if any, on the Bonds
from the date thereof to the date of such payment, and shall deliver to the District the other
documents described in Section 7(b) hereof, as well as any other documents or certificates Bond
Counsel shall reasonably require.
Payment for the delivery of the Bonds as described herein shall be made at the offices
of The Bank of New York Mellon Trust Company, N.A. in San Francisco, California, or at such
other place as shall have been mutually agreed upon by the County and the Underwriter. The Bonds
will be delivered through the facilities of DTC in New York, New York, or at such other place as
shall have been mutually agreed upon by the County, the District, and the Underwriter. All other
documents to be delivered in connection with the delivery of the Bonds shall be delivered at the
offices of Stradling Yocca Carlson & Rauth, a Professional Corporation, San Francisco, California.
Such payment and delivery is herein called the “Closing” and the date thereof the “Closing Date”.
10. Expenses. (a) The Underwriter shall pay costs of issuance of the Bonds in an
amount not to exceed $_____________, which may include any of the following: (i) the cost of the
preparation and reproduction of the District Resolution and the County Resolution; (ii) the fees and
disbursements of the District’s financial advisor with respect to the Bonds; (iii) the fees and
disbursements of Bond Counsel and Disclosure Counsel; (iv) the costs of the preparation, printing
and delivery of the Bonds; (v) the costs of the preparation, printing and delivery of the Preliminary
Official Statement, the Official Statement, and any amendment or supplement thereto in the quantity
requested by the Underwriter in accordance herewith; (vi) initial rating fees of Moody’s, Fitch and
S&P; and (vii) fees and expenses of the Paying Agent for the Bonds. The Underwriter shall also pay
the premium of the municipal bond insurance policy for the [Bonds] directly to the bond insurer in
the amount of $_____________. Any such costs or other District expenses in excess of the stated
amounts shall be the responsibility of the District.
(b) All other costs and expenses incurred by the Underwriter as a result of or in
connection with the purchase of the Bonds and their public offering and distribution shall be borne
by the Underwriter, including, but not limited to (i) clearing house fees; (ii) DTC fees; (iii) CUSIP
fees; (iv) fees required to be paid to the California Debt and Investment Advisory Commission
(“CDIAC”); (v) fees required to be paid to The Securities Industry and Financial Markets
Association (SIFMA); (vi) MSRB fees; (vii) costs or fees of qualifying the Bonds for offer and sale
in various states chosen by the Underwriter and the costs or fees of preparing Blue Sky or legal
investment memoranda to be used in connection therewith; and (viii) fees of any counsel to the
Underwriter.
11. Notices. Any notice or other communication to be given under this Purchase
Contract (other than the acceptance hereof as specified in the introductory paragraph hereof) may be
given to by delivering the same in writing to any party at the respective addresses given below, or
such other address as the District, the County or the Underwriter may designate by notice to the other
parties.
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DOCSSF/75009v3/022000-0001
To the District: West Contra Costa Unified School District
1108 Bissel Avenue
Richmond, CA 94801
Attn: Associate Superintendent for Business Services
To the County: County of Contra Costa
625 Court Street, Room 100-102
Martinez, CA 94553
Attn: Treasurer-Tax Collector
To the Underwriter: Piper Jaffray & Co.
345 California Street, Suite 2400
San Francisco, CA 94104
Attn: Jeffrey A. Baratta
12. Governing Law. The validity, interpretation and performance of this
Purchase Contract shall be governed by the laws of the State of California.
13. Parties in Interest. This Purchase Contract when accepted by the County and
the District in writing as heretofore specified shall constitute the entire agreement among the County,
the District, and the Underwriter, and is solely for the benefit of the County, the District, and the
Underwriter (including the successors or assigns thereof). No other person shall acquire or have any
rights hereunder or by virtue hereof. All representations and agreements in this Purchase Contract of
each of the parties hereto shall remain operative and in full force and effect, regardless of (a) delivery
of and payment for the Bonds hereunder, or (b) any termination of this Purchase Contract.
14. Headings. The headings of the paragraphs and sections of this Purchase
Contract are inserted for convenience of reference only and shall not be deemed to be a part hereof.
15. Effectiveness. This Purchase Contract shall become effective upon the
execution of the acceptance hereof by the Superintendent of the District or authorized delegate and
by the County Treasurer-Tax Collector or authorized deputy, and shall be valid and enforceable at
the time of such acceptance.
DOCSSF/75009v3/022000-0001
16. Counterparts. This Purchase Contract may be executed in several
counterparts, which together shall constitute one and the same instrument.
Respectfully submitted,
PIPER JAFFRAY & CO.,
By:
Authorized Officer
Accepted: November __, 2009
Time: ______________ p.m.
WEST CONTRA COSTA UNIFIED SCHOOL
DISTRICT
By:
Associate Superintendent, Business Services
Accepted: November __, 2009
Time: ______________ p.m.
COUNTY OF CONTRA COSTA
By:
County Treasurer
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DOCSSF/75009v3/022000-0001
EXHIBIT A
$________________
WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT
GENERAL OBLIGATION BONDS, ELECTION OF 2005, SERIES D-1
(Qualified School Construction Tax Credit Bonds)
$________________
WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT
GENERAL OBLIGATION BONDS, ELECTION OF 2005, SERIES D-2
(Tax-Exempt)
MATURITY SCHEDULE
$________________
WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT
GENERAL OBLIGATION BONDS, ELECTION OF 2005, SERIES D-1
(Qualified School Construction Tax Credit Bonds)
Maturity
Principal
Amount
Tax Credit
Rate
[Interest
Rate]
$________________
WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT
GENERAL OBLIGATION BONDS, ELECTION OF 2005, SERIES D-2
(Tax-Exempt)
$___________ Current Interest Serial Bonds
Maturity
(August 1)
Principal
Amount
Interest
Rate
Yield
Maturity
(August 1)
Principal
Amount
Interest
Rate
Yield
$___________ _____% Current Interest Term Bonds due August 1, 20__ Yielding _____%(1)
$___________ Capital Appreciation Bonds
Maturity
Denominational
Amount
Accretion
Rate
Reoffering
Yield
Maturity
Value
(1) Yield to call at par on August 1, 20__.
TERMS OF REDEMPTION
Series D-1 Bonds
The Series D-1 Bonds are not subject to optional or mandatory sinking fund redemption prior
to their stated maturity.
The Series D-1 Bonds are subject to extraordinary mandatory redemption, in whole or in part,
on _______ 15, 20__, or, in the event of an extension negotiated with the IRS, on or after
_______ 16, 20__ and before ______ 15, 20__, in authorized denominations, and on a tax credit
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DOCSSF/75009v3/022000-0001
redemption date, at a redemption price equal to the principal amount of the Series D-1 Bonds called
for redemption, in an amount equal to the unexpended proceeds of the sale of the Series D-1 Bonds
held by the District, but only to the extent that the District fails to expend all of the proceeds of the
Series D-1 Bonds within three years of issuance thereof and no extension of the period for
expenditure has been granted by the IRS.
Upon a Determination of Loss of Qualified School Construction Bond Status (as defined
below) the Series D-1 Bonds are subject to extraordinary mandatory redemption prior to their fixed
maturity date, in whole, on the date designated by the District, which date shall be a date on or prior
to the January 15 following the next succeeding August 1 after a Determination of Loss of Qualified
School Construction Bond Status, at a redemption price equal to (i) the principal amount of the
Series D-1 Bonds to be redeemed, plus, (ii) if the Redemption Premium is a positive number, the
Redemption Premium, plus (iii) accrued interest on (i) (calculated at the Tax Credit Rate) from the
last Tax Credit Date immediately preceding the redemption date to the date of redemption.
In addition, in the event that any Tax Credits previously recognized by Owners are
determined to be ineligible as Tax Credits as a result of the loss of status of the Series D-1 Bonds as
Qualified School Construction Bonds under the Code, the redemption price shall include an
additional amount equal to the amount of such Tax Credits, plus interest thereon from the date of
such Tax Credits to the date of redemption, at a rate equal to the large corporate underpayment rate
determined from time to time by the Internal Revenue Service. The registration books maintained by
the Paying Agent shall be utilized to determine the Owners which are entitled to payment of the
amounts described in this paragraph.
In the event that the ownership of the Tax Credit Certificates affixed to the Series D-1 Bonds
has been separated from the ownership of the Series D-1 Bonds and registered separately, the Tax
Credit Strips related to the redeemed Principal Strips will be called for redemption in the same
manner as the Series D-1 Bonds pursuant to the foregoing, and the redemption price therefor will be
allocated to the Principal Strips and the Tax Credit Strips in the proportions and values set forth in
the [Table Of Redemption Values] attached to the Series D-1 Bonds.
The term “Date of Loss of Qualified School Construction Bond Status” means the date
specified in a Determination of Loss of Qualified School Construction Bond Status as the date from
and after which the Series D-1 Bonds lost their status, or failed to qualify, as Qualified School
Construction Bonds as a result of an Accountable Event of Loss of Qualified School Construction
Bond Status, which date could be as early as the date of issuance of the Series D-1 Bonds.
The term “Determination of Loss of Qualified School Construction Bond Status” means (a) a
final determination by the IRS (after the District has exhausted all administrative appeal remedies)
determining that an Accountable Event of Loss of Qualified School Construction Bond Status has
occurred and specifying the Date of Loss of Qualified School Construction Bond Status, or (b) a non-
appealable holding by a court of competent jurisdiction holding that an Accountable Event of Loss of
Qualified School Construction Bond Status has occurred and specifying the Date of Loss of
Qualified School Construction Bond Status.
The term “Accountable Event of Loss of Qualified School Construction Bond Status” means
(a) any act or any failure to act on the part of the District or the County, which act or failure to act is
a breach of a covenant or agreement of the District or the County contained in the District
Resolution, the County Resolution, the Paying Agent Agreement, the Tax Certificate respecting the
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DOCSSF/75009v3/022000-0001
issuance of the Series D-1 Bonds, or the Series D-1 Bonds and which act or failure to act causes the
Series D-1 Bonds to lose their status, or fail to qualify, as Qualified School Construction Bonds, or
(b) the making by the District or the County of any representation contained in the District
Resolution, the County Resolution, the Paying Agent Agreement, the Tax Certificate or the Series D-
1 Bonds, which representation was untrue when made and the untruth of which representation at such
time causes the Series D-1 Bonds to lose their status, or fail to qualify, as Qualified School
Construction Bonds under the Code.
“Redemption Premium” means, as calculated by the District (or, at the District’s option, its
Designated Investment Banker), the greater of (x) zero and (y)(a) the sum of the present values of the
remaining scheduled payments of principal of and Tax Credits related to the Series D-1 Bonds to be
so redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of
redemption on a semiannual basis (assuming a 360-day year consisting of 12 months of 30 days
each) at a rate per annum equal to the Treasury Rate, minus (b) the principal amount of the Series D-
1 Bonds to be so redeemed.
For the purpose of determining the Treasury Rate, the following definitions apply:
“Treasury Rate” means the rate per annum, expressed as a percentage of the principal
amount, equal to the semiannual equivalent yield to maturity or interpolated maturity of the
Comparable Treasury Issue, assuming that the Comparable Treasury Issue is purchased on the
redemption date for a price equal to the Comparable Treasury Price, as calculated by the Designated
Investment Banker.
“Comparable Treasury Issue” means the U.S. Treasury security or securities selected by the
Designated Investment Banker which has an actual or interpolated maturity comparable to the
remaining average life, as of the redemption date, of the Series D-1 Bonds to be redeemed, and that
would be utilized in accordance with customary financial practice in pricing new issues of debt
securities of comparable maturity to the remaining average life, as of the redemption date, of the
Series D-1 Bond to be redeemed.
“Comparable Treasury Price” means (a) if the Designated Investment Banker receives at least
four Reference Treasury Dealer Quotations, the average of such quotations for the date on which
such Series D-1 Bonds are to be redeemed, after excluding the highest and lowest Reference
Treasury Dealer Quotations, or (b) if the Designated Investment Banker obtains fewer than four
Reference Treasury Dealer Quotations, the average of all such quotations.
“Designated Investment Banker” means one of the Reference Treasury Dealers designated by
the District.
“Reference Treasury Dealer” means the original Underwriter of the Series D-1 Bonds, its
successors and other firms, as specified by the District from time to time, that are primary U.S.
government securities dealers in the City of New York, New York; provided, however, that if any
such firm ceases to be such a primary treasury dealer, the District will substitute another primary
treasury dealer for such firm.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer, the average, as determined by the Designated Investment Banker, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Designated Investment Banker by such Reference Treasury Dealer at 3:30
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DOCSSF/75009v3/022000-0001
p.m., New York City time, on the third business day preceding the date on which such Series D-1
Bonds are to be redeemed.
Series D-2 Bonds
Optional Redemption. The Series D-2 Current Interest Bonds maturing on or before
August 1, 20__ are not subject to redemption prior to their fixed maturity dates. The Series D-2
Current Interest Bonds maturing on or after August 1, 20__ may be redeemed prior to their respective
stated maturity dates at the option of the District, from any source of funds, on August 1, 20__ or on
any date thereafter, as a whole or in part, at a redemption price equal to the principal amount of the
Series D-2 Current Interest Bonds called for redemption, together with interest accrued thereon to the
date fixed for redemption.
Mandatory Sinking Fund Redemption. The Series D-2 Current Interest Bonds maturing on
August 1, 20__, are subject to redemption prior to maturity from mandatory sinking fund payments
on August 1 of each year, on and after August 1, 20__, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date fixed for redemption, without premium. The
principal amount represented by such Bonds to be so redeemed and the dates therefor and the final
principal payment date are as indicated in the following table:
Redemption Date
(August 1)
Principal Amount
Total
_________________
(1) Maturity.
The Series D-2 Capital Appreciation Bonds are not subject to redemption prior to
maturity.