HomeMy WebLinkAboutMINUTES - 02062001 - SD.4 (3) Ot
OH&S THIRD DRAFT
FIRST SUPPLEMENTAL TRUST AGREEMENT
between the
COUNTY OF CONTRA COSTA
and
BNY WESTERN TRUST COMPANY,
as Trustee
baited as of January 1`,2001
Relating to
County of Contra Costa, California
Taxable Pension Obligation Bonds,
Refunding Series 2001
(Supplementing the Trust Agreement
dated as of February 1, 1994)
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t TABLE OF CONTENTS
Page
ARTICLE.XI AMENDMENT OF TRUST AGREEMENT................................................... 2
Section 11.01. Deposits to Bond Fund; Amendment to Section 4.02A........................ 2
Section 11.02. Defeasance Securities............................................................................ 3
ARTICLE XII DEFINITIONS...................................................................................I.............. 3
Section 12.01. Additional Definitions........................................................................... 3
ARTICLE XIII THE BONDS ........................:. ............ 13
............................................................
Section 13.01. .Authorization of 2001 Bonds.............................................................. 13
Section 13.02. Terms of the 2001 Bonds.................................................................... 14
Section 13.03. Payment of Principal and Interest of 2001 Bonds; Acceptance of
Terms and Conditions. ........................................................................ 15
Section 13.04. Calculation and Payment of Interest; Maximum Rate........................ 15
Section 13.05. Provider Bonds.................................................................................... 16
Section 13.06. Determination of Interest Rate During the Daily Mode and the
WeeklyMode...................................................................................... 16
Section 13.07. Determination of Fixed Rate............................................................... 16
Section 13.08. Alternate Rates.................................................................................... 17
Section 13.09. Conditions Precedent to Delivery of the Bonds.................................. 17
Section 13.10. Changes in Mode................................................................................. 18
Section 13.11. Form of Bonds..................................................................................... 19
Section 13.12. Execution and Authentication of Bonds. ............................................ 20
Section 13.13. Transfer and Exchange of Bonds........................................................ 20
Section 13.14. Book-Entry System............................................................................. 20
ARTICLE XIV ISSUANCE OF BONDS.....................................................................:........... 23
Section 14.01. Procedure for the Issuance of 2001 Bonds.......................................... 23
Section 14.02. Establishment of Administrative Fee Fund.............................::.......... 24
Section 14.03. Establishment of Purchase Fund......................................................... 24
ARTICLE XV REDEMPTION OF 2001 BondS..................................................................... 25
Section 15.01. Optional Redemption of 2001 Bonds in the Daily Mode or the
WeeklyMode.................................................... .... 25
Section 15.02. Optional Redemption of 2001 Bonds in the Fixed Rate Mode........... 25
Section 15.03. Mandatory Sinking Fund Redemption.......................:........................ 26
Section 15.04. Selection of Bonds for Redemption.................................................... 26
Section 15.05. Notice of Redemption; Cancellation;.Effect of Redemption..............26
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TABLE OF CONTENTS
(continued)
Page
ARTICLE XVI PURCHASE OF BONDS ............................................................................... 27
Section 16.01. Optional Tenders of Bonds in the Daily Mode or the Weekly
Mode. .................................................................................................. 27
Section 16.02. Repurchase by Agreement. ................................................................. 28
Section 16.03. Mandatory Purchase on Mode Change Date....................................... 28
Section 16.04. Mandatory Purchase on Conversion to Fixed Rate............................. 28
Section 16.05. Mandatory Purchase on Liquidity Facility Substitution,
Expiration, or Default.......................................................................... 28
Section 16.06. Remarketing of Bonds; Notices. ......................................................... 29
Section 16.07. Source of Funds for Purchase of Bonds.............................................. 31
Section 16.08. Delivery of Bonds. .............................................................................. 31
Section 16.09. Undelivered Bonds.................................:............................................ 31
Section 16.10. No Purchases or Sales After Payment Default.................................... 32
Section 16.11. The Remarketing Agent for 2001 Bonds..........:................................. 32
Section 16.12. Qualifications of Remarketing Agent................................................. 32
Section 16.13. Tender Agent....................................................................................... 33
Section 16.14. Qualifications of Tender Agent........................................................... .
Section 16.15. Requirements for Liquidity Facility.................................................... 34
ARTICLE XVII MISCELLANEOUS PROVISIONS...............:............................................... 35
Section17.01. Time Reference. .................................................................................. 35
Section 17.02. Validity of Supplement........................................................................ 35
Section 17.03. Terms of 2001 Bonds.Subject to.the Trust Agreement....................... 36
Section 17.04. Execution in Counterparts................................... ............................... 36
Section 17.05. Notices; Notices to Rating Agencies................................................... 36
Section 17.06. Effective Date of First Supplemental Trust Agreement...................... 37
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THIS FIRST SUPPLEMENTAL TRUST AGREEMENT, dated as of January 1,
2001 (this "First Supplemental Trust Agreement"), by and between the COUNTY OF
CONTRA COSTA (the "County"), a political subdivision, duly organized and existing under
the Constitution and Laws of the State of California, and BNY.WESTERN TRUST
COMPANY, a banking corporation duly organized and existing under and by virtue of the laws
of the State of California, as trustee (the "Trustee"), being supplemental to the trust agreement,
dated as of February 1, 1994 (as supplemented hereby,and from time to time, the "Trust
Agreement"), between the County and the First Interstate Bank of California, as predecessor
trustee (the"Prior Trustee");
WITNESSETH:
WHEREAS, the County pursuant to the Trust Agreement issued its County of
Contra Costa Taxable Pension Obligation Bonds, 1994 Series A in the original aggregate
principal amount of$337,365,000 (the "1994 Series A Bonds" or the '"]994 Bonds");
WHEREAS, pursuant to Article III of the Trust Agreement, the County may issue
Additional Bonds for, among other purposes, the refunding of any Bonds then Outstanding,
provided that the conditions to the issuance.of Additional Bonds as set forth in Article III of the
Original Trust Agreement are satisfied;
WHEREAS, the County has determined that it is in the County's best interests to
purchase pursuant to a tender a portion of the 1994 Bonds and/or to advance refund a portion of
the 1.994 Bonds to their final maturity date (the "Refunding Project") and to issue its County of
Contra Costa, California Taxable Pension Obligation Bonds, Refunding Series 2001 in the
aggregate principal amount of$ (the "Series 2001 Bonds" or"2001 Bonds");
WHEREAS, the 2001 Bonds will be issued initially as Variable Rate Bonds in a
Weekly Mode (as such terms are hereinafter defined);
WHEREAS, in order to effectuate the Refunding Project and to maximize its
investment earnings on the defeasance escrow established in connection therewith, the County
has determined that it is also in the County's best interests to amend those provisions of the Trust
Agreement which define the "Permitted Investments" which qualify for investment in the
defeasance escrow to be established for the Refunding Project or which may be established
hereinafter in connection with the defeasance of any series of Additional Bonds, including the
2001 Bonds;
WHEREAS, the County has determined that the.definition of"Permitted
Investments", for purposes of defeasance, shall be amended as provided in Section 11.02 of this
First Supplemental Trust Agreement (the "Defeasance Amendment");
WHEREAS, the Defeasance Amendment does not require the consent of any
Holders of the 1994 Bonds because (i) the County has determined and hereby determines and
represents that the Defeasance Amendment does not materially adversely affect the interest of
such Holders under Section 7.01 of the Trust Agreement, and (ii) the Trustee has received an
Opinion of Counsel to that effect, as required by Sections 7.01 and 7.05 of the Trust Agreement;
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WHEREAS,the 2001 Bonds are payable on a parity basis with the Outstanding
Bonds and any Additional Bonds hereafter issued by the County;
WHEREAS, upon issuance of the 2001 Bonds, the County will enter into a
Liquidity Facility, in order to provide for the standby purchase of the 2001 Bonds upon optional
or'mandatory tender;
WHEREAS, the County has determined that the consummation of the
transactions contemplated in this First Supplemental Trust Agreement will result insignificant
public benefits;
WHEREAS, in order to provide for the authentication and delivery of the 2001
Bonds, to establish and declare the terms and conditions.upon which the 2001 Bonds are to be
issued under the Trust Agreement, to secure the payment of the principal thereof and interest
thereon, and to provide for the Defeasance Amendment, the County has authorized'the execution
and delivery of this First Supplemental Trust Agreement and all documents and instruments
related to the Refunding Project;
WHEREAS, the County hereby determines that all acts and proceedings required
by law necessary to make the 2001 Bonds, when executed by the County, authenticated and
delivered by the Trustee and duly issued, the valid, binding and legal obligations of the County
payable in accordance with their terms, and to constitute this First Supplemental Trust
Agreement.a valid and binding agreement of the parties hereto for the uses and purposes herein
set forth, have been done and taken, and have been in all respects duly authorized;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL "TRUST AGREEMENT
WITNESSETH, that in order to secure the full and timely payment of the principal of, premium,
if any, and the interest on all Bonds at any time issued and outstanding under the Trust
Agreement, according to their tenor, and to secure the performance and observance of all the
covenants and conditions therein and herein set forth, and to declare the terms and conditions
upon and subject to which the 2001 Bonds are to be issued and received, and in consideration of
the premises and of the mutual covenants herein contained and of the purchase and acceptance of
the Bonds by the Holders thereof, and for other valuable considerations, the receipt whereof is
hereby acknowledged, the County does hereby covenant and,agree with the Trustee, for the
benefit of the respective Holders from time to time of the Bonds,as follows:
ARTICLE XI
AMENDMENT OF TRUST AGREEMENT
Section 11.01. Deposits to Bond Fund; Amendment to :Section 4.02A.
(A) Pursuant to Section 4.01,the County shall depositor cause to be deposited with the Trustee,
the amount which, together with moneys transferred from the Surplus Account, is sufficient to
pay the County's obligations on the Bonds and Swap Payments for such fiscal year within thirty
days of the commencement of such.fiscal year. For purposes of such deposit, the County shall
assume that interest on Swapped Bonds is payable at the swap rate and that the interest rate on
Bonds in a Weekly Mode or a Daily Mode is equal to 100%-of the average interest rate on such
DOC SS I'1:468343.5 . 2
Bonds during the prior fiscal year, or 100% of the initial rate upon issuance of such Bonds. If
the Trustee shall determine, at any time after such deposit, that insufficient ifunds are held in the
Bond Fund to pay principal of and interest on the Bonds and Swap Payments estimated to be due
in such fiscal year, the Trustee shall promptly notify the County of such deficiency, and the
County shall make the.necessary deposit to eliminate such deficiency. All Swap Revenues shall
also be deposited in the Bond Fund as and when received and are expected to be sufficient in
'amount to pay interest on Swapped Bonds above the swap rate; provided, however, if such
amounts are not sufficient or are not received for any reason, the County shall promptly deposit
with the Trustee the amount of any such deficiency. The Trustee shall establish separate
subaccounts within the Bond Fund for each Series of Bonds and funds deposited with respect to
one Series of Bonds shall not be available to pay debt service on a different Series of Bonds
unless such funds are deposited in the Surplus Account, from which the Trustee may transfer
funds to any subaccount of the Principal Account or Interest Account.
(B) Section 4.02(a) of the Trust Agreement is hereby amended to read as
follows:
"(a) Interest Account. On each Interest Payment Date for a Series of
Bonds, commencing on June 1, 1994,. the Trustee shall set aside from the
subaccount of the Bond Fund for such Series and deposit in the Interest Account
that amount of money which is equal to. the amount of interest becoming due and
payable on all Outstanding Bonds of such Series on such Interest Payment Date.
On or before each payment date on a Swap, the Trustee shall set aside from the
subaccount of the Bond Fund for such Swapped Bonds and deposit in the Interest
Account that amount of money equal to the Swap Payment payable on the Swap
on such payment date.
No deposit need be made in the Interest Account if the amount contained
therein is at least equal to the aggregate amount of interest becoming due and
payable on all Outstanding Bonds on such Interest Payment Date and the net
Swap Payment due and payable on any Swap on or before such swap payment
date, as the case may be.
All money in the Interest Account shall be used and withdrawn by the
Trustee solely for the purpose of paying the interest on the Bonds as it shall
become due and payable (including accrued interest on any,Bonds purchased or
redeemed prior to maturity)and Swap Payments."
(C) Section 4.02(c) of the Trust Agreement is hereby amended to read as
follows:
(c) Surplus Account.. Following the deposits set forth above, any
moneys remaining in the Bond Fund shall be deposited by the Trustee in the.
Surplus Account. Within the Surplus Account, the County hereby establishes a
separate sub-account entitled the "Interest Reserve Account for Variable Rate
Bonds" (the"Interest Reserve.Account") and the County covenants to maintain
the Interest Reserve Account with the Trustee for any period during which
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Variable Rate Bonds remain Outstanding and are not Swapped Bonds with fixed
Swap Payments and for any period during which the County is obligated for Swap
Payments that are variable.
.The initial deposit to the Interest Reserve Account for the period
commencing on the Closing Date and ending with the Fiscal Year ending June 30,
2001, shall be in the amount of$ which shall be derived by the
County from excess funds on deposit in the Bond Fund or from termination
payments received from investments therein or any other source of available
funds.
Commencing with the fiscal year beginning July 1, 2001, the County shall
deposit to the Interest Reserve Account within 30 days of the commencement of
such fiscal year that amount, if any, which is necessary to bring the amount on
deposit in the Interest Reserve Account up to one percent (I%) of the Outstanding
principal amount of Variable Rate Bonds that are.not Swapped Bonds with fixed
Swap Payments and one percent (1%) of the notional amount of Swapped Bonds
with variable Swap Payments (the "Interest Reserve Account Requirement"). .
On any Interest Payment Date or payment date for Swap Payments, if the
amount of interest or Swap Payments then due and payable by the County
exceeds the amount assumed by the County in making its annual deposit to the
Bond Fund, the Trustee shall withdraw the differential in the amount assumed and
the actual amount of accrued interest then'due and payable from available money
in the Interest Reserve Account until such account is depleted.
At the beginning of each fiscal year, any amounts on deposit in the
Surplus Account in excess of the Interest Reserve Account Requirement for such
year shall be transferred by the Trustee to the Bond Fund. Any moneys remaining
in the Surplus Account after the final payment of the Bonds and Swaps is made
shall be returned to the County."
Section 11.02. Defeasance Securities. Section 9.0 1(b)(2)(B) of the Trust
Agreement is hereby amended to provide that the "Permitted Investments" deposited into escrow
pursuant to the provisions of Article IX, shall be amended to include the "Eligible Securities"
listed in Exhibit B hereto; provided that such Eligible Securities may be included in a defeasance
escrow for the 1994 Series A Bonds only if the Rating Agencies rate the escrow Aaa/AAA.
ARTICLE XII
DEFINITIONS
Section 12.01. Additional Definitions. Unless the context otherwise requires, the
terms defined in this Section shall for all purposes of the Trust Agreement hereof and of any
Supplemental Trust Agreement and of any certificate, opinion, request or other document herein
or therein mentioned have the meanings herein specified.and to the extent the definitions in.this
Section differ from the definitions of such terms contained in Section 1.01 of the Trust
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Agreement, the definitions in this Section shall control and the definitions in Section 1.01 shall
be amended accordingly.
Administrative Fees and Expenses
The term ".Administrative Fees and Expenses" means the compensation and
expenses paid to or incurred by the Trustee, the Tender Agent, the Remarketing Agent and/or
any Paying Agent under the Trust Agreement, which include but are not limited to printing of
Bonds, accomplishing transfers.or new registration of Bonds, or other charges and other
disbursements including those of their respective officers, directors, members, attorneys, agents
.and employees incurred in and about the administration and execution of the "Trust Agreement,
and the fees and expenses owing or to be paid to the Liquidity Facility Provider under the terms
of the Liquidity Agreement, including but not limited to, annual or quarterly fees, draw fees and
legal expenses.
Alternate Liquidity Facility
The term "Alternate Liquidity Facility" means a replacement liquidity facility
which satisfies the requirements specified herein.
Alternate Rate
The term "Alternate Rate" means for a Bond in a particular Mode, the following
as the same shall be applied in accordance with the provisions of Section 13.08 hereof.
(i) For a Bond in.the Daily Mode, the last lawful interest rate for such Bond
set by the Remarketing Agent pursuant to Section 13.06(A) hereof.
(ii) For a Bond in the Weekly Mode 100% of the greater of (i) 30-day AA
financial commercial paper as posted on the Federal Reserve Board's
website (www.bog.frb.fed.us\releases\cp\ and (ii) 30-day LIBOR in effect
on the first day of each Interest Period.
Authorized Denominations
The term "Authorized Denominations" means (i) with respect to Bonds.in a Daily
Mode or Weekly Mode, $100,000 and any integral multiple of$5,000.ifi excess thereof, and (ii)
with respect to Bonds in a Fixed Rate Mode, $5,000 and any integral multiple thereof.
Authorized Representative
The term "Authorized Representative" means the County Administrator of the
County or any designee thereof,the Chief Assistant'County Administrator of the County,the
Director, Capital Facilities and Debt Management, of the County or the Chair of the Board of
Supervisors of the County or any other person designated by resolution of the Board of
Supervisors to act as an Authorized Representative hereunder.
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Business Day
The term"Business Day" means a day that is not a Saturday, Sunday or legal
holiday on which banking institutions in the State of New York or in any state in which the
office of the Remarketing Agent, the Tender Agent or the Trustee is located or at which requests
for funds under the Liquidity Facility are made are authorized to remain closed or a day on
which the New York Stock Exchange is closed.
Closing Date
The term "Closing Date" means with respect to the 1994 Series A Bonds,
February 16, 1994 and with respect to the 2001 Bonds January_, 2001.
Costs of Issuance
The term "Costs of Issuance" shall mean all items of expense directly or
indirectly payable by or reimbursable to the County and related to the authorization, execution
and delivery of the amendments to the Trust Agreement and the related sale, of the Bonds,
including, but not limited to, costs of preparation and reproduction of documents, costs of rating
agencies and costs to provide information required by rating agencies,filing and recording fees,
fees, legal fees and charges of the Trustee, legal fees and charges, fees and disbursements of
consultants and professionals, premiums, fees and expenses of municipal bond insurers, surety
bond providers and credit or liquidity facility providers, fees and expenses relating to the tender,
refunding and defeasance 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 issuance of the
Bonds.
Cost of Issuance Fund (2001 Bonds)
The term "Cost of Issuance Fund (2001 Bonds)'.' means the fund by that name
established pursuant to Section 14.01.
Current Mode
The term "Current Mode" shall have the meaning specified in Section 13.IO(A)(i)
hereof.
Daily Mode
The term"Daily.Mode"means the Mode during which all or any part of the
Bonds bear interest at the Daily Rate.
Daily Rate
The term"Daily Rate" means the per annum interest rate on any Bond in the
Daily Mode determined pursuant to Section 13.06(A) hereof.
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Depository
The term "Depository" means DTC or another recognized securities depository
selected by the County which maintains a book-entry system for the Bonds.
DTC
The term "DTC" means The Depository Trust Company, New York, New York.
Electronic Means
The term "Electronic Means" means telecopy, telegraph, telex, facsimile
transmission, e-mail transmission or other similar electronic means of communication, including
a telephonic communication confirmed by writing or written transmission.
Escrow Agreement
The term "Escrow Agreement"means that escrow agreement, entitled "Escrow
Agreement" dated as of January 1, 2001, between the County and the Trustee.
Expiration Date
The term"Expiration Date" means the date on which any Liquidity Facility is
scheduled to expire pursuant to its terms (taking into account any extension or renewal of such
Liquidity Facility).
Expiration Tender Date
The term "Expiration Tender Date".means the day five Business Days prior to the
Expiration Date.
Favorable Opinion of Bond Counsel
The term "Favorable Opinion of Bond Counsel" means, with respect to any action
the occurrence of which requires such an opinion, an unqualified Opinion of Counsel, to the
effect that such action is permitted under the Act and this Trust Agreement and will not impair
the exclusion of interest on the Bonds (intended to be tax-exempt) from gross income for
purposes of Federal income taxation and/or the exemption of interest on the Bonds from personal
income taxation under the laws of the State (subject to the inclusion of anyexceptions contained
in the opinion delivered upon original issuance of the Bonds).
First Supplemental Trust Agreement
The term"First Supplemental Trust Agreement means this First Supplemental
Trust Agreement, dated as of January 1, 2001, by and between the County and the Trustee,
executed and delivered in accordance with the Trust Agreement and which is supplemental to the
Trust Agreement.
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Fixed Rate
The term "Fixed Rate" means the per annum interest rate on any Bond in the
Fixed Rate Mode determined pursuant to Sections 13.07 hereof.
Fixed Rate Bonds
The term "Fixed Rate Bonds" means any Bonds in the Fixed Rate Mode.
Fixed Rate Mode
The Term "Fixed Rate Mode" means the Mode during which all or a particular
portion of the Bonds bear interest at a Fixed Rate(s).
Funds
The term "Funds" means, collectively, the Purchase Fund, the Bond Fund, the
Costs of Issuance Fund and any other Fund created pursuant hereto.
Indexing Agent
The term "Indexing Agent" means Municipal Market Data, Boston,
Massachusetts, a Thompson Financial Services Company, or its successor.
Interest Accrual Period
The term "Interest Accrual Period"means the period during which a Bond
accrues interest payable on any Interest Payment Date applicable thereto. With respect to Bonds
in the Daily.Mode, the Interest Accrual Period shall commence on (and include) the first day of
each month and shall extend through (and include) the last day of such month; provided, that if
such month is the month in which the Bonds are authenticated and delivered, or if the Bonds are
changed to the Daily Mode during such month, the Interest Accrual Period shall commence on
the date of authentication and delivery of the Bonds or the Mode Change Date, as the case may
be; provided, further, that if no interest has been paid.on Bonds in the Daily Mode, interest shall
accrue from the date of original authentication and delivery of the Bonds or the Mode Change
Date, as appropriate. With respect to a Bond in a Mode other than the Daily Mode, the Interest
Accrual Period shall commence on (and include) the last Interest Payment Date to which interest
has been paid (or, if no interest has been paid in such Mode, from the date of original
authentication and delivery of such Bond, or the Mode Change Date, as the case may be) to, but
not including, the Interest Payment Date on which interest is to be paid. If, at the time of
authentication of any Bond, interest is in default or overdue on the Bonds, such Bond shall bear
interest from.the date to which interest has previously been paid in full or made available for
payment in full on Outstanding Bonds.
Interest Payment Date
The term "Interest Payment Date" means each date on which interest is to be paid
and is: (i) with respect to a Bond in the Daily Mode, the first Business Day of each month, (ii)
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with respect to a Bond in the Weekly Mode, the first Business Day of each month; (iii) with
respect to a Bond in the Fixed Rate Mode, each Stated Interest Payment Date (beginning with the
first Stated Interest Payment Date.that occurs no earlier than three months after the
commencement of the Fixed Rate Mode for such Bond); (iv) with respect to Provider Bonds, the
dates required under the applicable Liquidity Agreement; and (v) (without duplication as to any
Interest Payment Date listed above) any Mode Change Date and each Maturity Date and, with
respect to the 1994 Series A Bonds, June 1 and December 1 of each year, commencing on
June 1, 1994.
Interest Period
The term "Interest Period"means, for a Bond in a Daily Mode or a Weekly Mode,
the period of time that such Bond bears interest at the rate (per annum) which becomes effective
at the beginning of such period. The Interest Period for each Mode is as follows:
(1) for a Bond in the Daily- Mode,the period from (and including)
the Mode Change Date upon which such Bond is changed to the Daily Mode to (but excluding)
the next Rate Determination Date for such Bond, and thereafter the period from and including
the current Rate Determination Date for such Bond to (but excluding) the next Rate
Determination Date for such Bond; and
(2) for a Bond in the Weekly Mode, the period from (and
including) the Mode Change-Date upon which such Bond is changed to the Weekly Mode to
(and including) the next Tuesday, and thereafter the period from (and including) each
Wednesday to (and including) the next Tuesday.
Interest Reserve Account
The term "Interest Reserve Account" means the account by that name established
pursuant to Section 4.02(c) as amended by Section 11.02(b).
Liquidity Agreement
The term"Liquidity Agreement" means an agreement between the County and a
Liquidity Facility Provider, to which the Trustee may also be a party, as originally executed and
as it may from time to time be supplemented, modified or amended in accordance with its terms,
and any similar agreement entered into in connection with an Alternate Liquidity Facility.
Liquidity Deposit Account
The term"Liquidity Deposit Account" means the account by that name in the
Purchase Fund established pursuant to Section 14.03.
Liquidity Facility
The term "Liquidity Facility"means any letter of.credit, standby bond purchase
agreement or other liquidity facility issued by a financial institution, insurance company or
association pursuant to which the Trustee and/or the Tender Agent, as the case may be, is entitled
DOCS S F 1.468343.5 9
to obtain funds to pay the Purchase Price of any Series of Bonds or any Alternate Liquidity
Facility substituted therefor in accordance with the provisions hereof.
Liquidity Facility Provider
The term"Liquidity Facility Provider" means any issuer of a Liquidity Facility or
any agent for the issuer or issuers thereof. The initial Liquidity Facility Provider for the 2001
Bonds is Westdeutsche Landesbank Girozentrale acting through its New York Branch.
Mandatory Purchase Date
The term "Mandatory Purchase Date" means (i) any Mode Change Date involving
a change from the Daily Mode or the Weekly Mode (ii) the Substitution Tender Date; and the
Expiration Tender Date, the date specified by the Trustee following an "Event of Default" that
requires mandatory purchase under the Liquidity Facility.
Maturity Date
The term "Maturity Date" means June 1, 2014, with respect to the 2001 Bonds, or
such dates as may be established in connection with conversion of a Series of Bonds to the Fixed
Rate Mode.
Maximum Rate
The term"Maximum Rate" means, with respect to any 2001 Bond, other than a
Provider Bond, twelve percent (12%).per annum.
Mode
The term "Mode" means, as the context may require, the Daily Mode, the Weekly
Mode or the Fixed Rate Mode.
Mode Change Date
The term"Mode Change Date" means with respect to any Bond in a particular
Mode, the day on which another Mode for such Bond begins:
Mode Change Notice
The term"Mode Change Notice" means the notice from the County to the other
Notice Parties of the County's intention to change Mode.
New Mode
The term"New Mode" shall have the meaning specified in Section 13.10(A)
hereof.
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Notice Parties
The term "Notice Parties" means the County, the Trustee. the Remarketing Agent,
the Tender Agent and the Liquidity Facility Provider.
Outstanding
The term "Outstanding," when used as of any particular time with reference to
Bonds, means (subject to the provisions of Section 9.02) all Bonds except
(1) Bonds theretofore cancelled by the Trustee or surrendered to the Trustee
for cancellation;
(2) Bonds paid or deemed to have been paid within the meaning of Section
9.01;
(3) Bonds deemed tendered but not yet presented for purchase; and
(4) Bonds in lieu of.or in substitution for which other Bonds shall have been
executed, issued and delivered by the County pursuant hereto.
Principal Payment Date
The term``Principal Payment Date" means any date upon which the principal
amount of Bonds is due hereunder, including the Maturity Date, any serial maturity date, any
Redemption Date, or the date the.maturity of any Bond is accelerated pursuant to the terms
hereof or otherwise.
Provider
The term"Provider" means Liquidity Facility Provider.
Provider Bonds
The term "Provider Bonds" means Variable Rate Bonds not entitled to be
purchased under the Liquidity Facility, including, without limitation, Bonds held by the
Liquidity Facility Provider.
Provider Rate
The term"Provider Rate" means, to the extent permitted by law, the rate of
interest per annum payable with respect to each Provider Bond, which rate shall be determined as
set forth in the Liquidity Agreement for such Series of Bonds.
Purchase Date
The term"Purchase Date" means for a Bond in the Daily Mode or the Weekly
Mode, any Business Day selected by the owner of said Bond pursuant to the provisions of
Section 16.01 hereof.
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Purchase Fund
The term "Purchase Fund" means the fund by that name created in Section 14.03.
Purchase Price
The term "Purchase Price" means an amount equal to the principal amount of any
Bonds purchased on any Purchase Date, plus accrued interest, if any, to the Purchase Date.
Rate Determination Date
The term "Rate Determination Date" means the date on which the interest rate on
a Bond shall be determined, which, (i) in the case of the Daily Mode, shall be each Business Day
commencing with the first day the Bonds become subject to the Daily Mode; (ii) in the case of
the initial conversion to the Weekly Mode, shall be no later than the Business Day prior to the
Mode Change Date, and thereafter, shall be each Tuesday or, if Tuesday is not a Business Day,
the next succeeding day or, if such day is not a Business Day, then the Business Day next
preceding such Tuesday; and (iii) in the case of the Fixed Rate Mode, shall be a date determined
by the Remarketing Agent which shall be at least one Business Day prior to the Mode Change
Date.
Rating Confirmation Notice
The term "Rating Confirmation Notice" means a notice from the Rating Agencies,
confirming that the rating on the Bonds or a Series of Bonds will not be withdrawn (other than a
withdrawal of a short term rating upon a change to the Fixed Rate Mode) as a result of the action
proposed to be taken.
Record Date
The term "Record Date" means (i) with respect to Bonds in a Weekly Mode, the
day (whether or not a Business Day) next preceding each Interest Payment Date, (ii) with respect
to Bonds in the Daily Mode, the last day of each month(whether or not a Business Day) and.(iii)
with respect to the 1994 Series A Bonds and Bonds in a Fixed Rate Mode, the fifteenth (15th)
day (whether or not a Business Day) of the month next preceding each Interest Payment Date.
Remarketing Agent
The term "Remarketing Agent" means the remarketing agent appointed by the
County for a Series of Bonds and at the time serving as such under the Remarketing Agreement
for such Series.
Remarketing_Agreement
The term "Remarketing Agreement" means, with respect to the 2001 Bonds, that
certain remarketing agreement, dated as of January 1, 2001, between the County and Bear,
Stearns & Co. Inc:, as the initial Remarketing Agent with respect to the -2 00 1 Bonds, and any
similar agreement entered into in connection with any other Series of Bonds, as such agreement
DOCSSF 1:468343.5 12
or agreements may from time to time be amended and supplemented, relating to.the remarketing
of the Bonds delivered or deemed to be delivered for purchase by the Holders thereof, and any
similar agreement entered into with any successor Remarketing Agent.
Remarketing Proceeds Account
The term "Remarketing Proceeds Account" means the account by that name in the
Purchase Fund established pursuant to Section 14.03.
Representation Letter
The term"Representation Letter" means, with respect to any Series of Bonds, the
letter of representations among the County, DTC, and, as appropriate, the Remarketing Agent,
the Trustee, the Tender Agent and/or Paying Agent for such Series.
Series
The term "Series" means whenever used herein with respect to Bonds, means all
of.the Bonds designated as being of the same series, authenticated and delivered in a
simultaneous transaction, regardless of the variation in maturity, interest rate, redemption and
other provisions, and any Bonds thereafter authenticated and delivered upon transfer or exchange
of or in lieu or in substitution for (but not only to refund) such Bonds as herein provided.
Short-Term Mode
The tern "Short-Term Mode" means a Daily Mode or a Weekly Mode.
Stated Interest Payment Date
The term "Stated Interest Payment Date" means June 1 and December 1 of each
year.
Substitution Date
The term"Substitution Date" means the date on which an Alternate Liquidity
Facility is to be substituted for the Liquidity Facility.
Substitution Tender Date
The term "Substitution Tender Date" means the Substitution Date for an Alternate
Liquidity Facility with respect to which a Rating Confirmation Notice is not.timely received.
Swap
The term"Swap" means an interest rate swap, cap, floor, collar or other hedging
transaction which is entered into by the County for the purpose of managing interest rate risk
with respect to specified Bonds which are being issued concurrently with the execution of the
Swap, which are proposed to be issued in connection with such Swap, or which are Outstanding
at the time of execution of such Swap.
DOCSSF 1:468343.5 13
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Swap Party
The term "Swap Party" means the entity which is a party to a Swap.
Swap Pavments
The term "Swap Payments" means the sum of money due to be paid by the
County to the Swap Party on specified payment dates (either fixed or floating) corresponding to
interest on the Swapped Bonds pursuant to any Swap, subject to any netting of payments
provided by the applicable Swap and excluding any termination payments.
Swap Revenues
The term "Swap Revenues'.' means the sum of money due to be paid by a Swap
Party to the County pursuant to any Swap subject to any netting of payments provided by the
applicable Swap.
Swapped Bonds
The term "Swapped Bonds" means the Bonds to which a Swap relates.
Taxable Bond
The term"Taxable Bond" means any of the 2001 Bonds and any other Bonds of
any series which, when issued, pay interest not intended to be excluded from gross income for
federal income tax purposes.
Tender Agent
The term "Tender Agent"means, with respect to a Series of Bonds, the Trustee or
such other Tender Agent as may be appointed pursuant to the Trust Agreement.
2001 Bonds
The term "2001 Bonds" or "Series 2001 Bonds" means the County of Contra
Costa, California Taxable Pension Obligation Bonds, Refunding Series 2001.
Variable Rate Bonds
The term "Variable Rate Bonds" means Bonds bearing interest at a Daily Rate or
a Weekly Rate.
Weekly Mode
The term "Weekly Mode"means the Mode during which all or any part of the
Bonds bear interest at the Weekly Rate.
DOC SSI I:468343.5 14
SDS/
Weekly Rate
The term "Weekly Rate" means the per annum interest rate on any Bond in the
Weekly Mode determined pursuant to Section 13.06(B) hereof.
ARTICLE XIII
THE SERIES 2001 BONDS
Section 13.01. Authorization of 2001 Bonds.
(A) A second Series of Bonds is hereby created and designated "County of
Contra Costa, California Taxable Pension Obligation Bonds, Refunding Series 2001." The
aggregate principal amount of 2001 Bonds which may be issued and Outstanding under this
Trust Agreement shall not exceed one hundred twenty-five million dollars ($125,000,000). The
2001 Bonds are intended by the County to be Taxable Bonds, the interest on which is intended to
be included in gross income of the Holder thereof for federal income tax purposes.
(B) The County has reviewed all proceedings heretofore taken relative to the
authorization of the 2001 Bonds and has found, as a result of such review, and hereby finds and
determines that all acts,conditions and things required by law to exist, to have happened and to
have been performed precedent to and in the issuance of the 2001 Bonds do exist, have happened
and have been performed in due time, form and manner as required by law, and that the County
is.now duly authorized, pursuant to each and every requirement of the Act, to issue the 2001
Bonds in the form and manner provided herein for the purposes set forth herein, and that the
2001 Bonds shall be entitled to the benefit, protection and security of the provisions hereof.
(C) The obligations of the County under the Bonds, including the obligation to
make all payments of interest and principal when due, are obligations of the County imposed by
law and are absolute and unconditional, without any right of set-off or counterclaim. The Bonds .
do not constitute an obligation of the County for which the County is obligated to levy or pledge
any form of taxation. Neither the Bonds nor the obligation of the County to make payments on
the Bonds constitute an indebtedness of the County, the State of California, or any of its political
subdivisions within the meaning of any constitutional or statutory debt limitation or restriction.
Pursuant to Section 31584 of the Retirement Law, the Board of Supervisors of the County is
obligated to make appropriations to pay the unfunded accrued actuarial liability which is
evidenced by the Bonds and requires the Auditor of the County to transfer from any money
available in any fund in the County treasury the sums specified if.the Board of Supervisors tails
to make such appropriation.
Section 13.02. Terms of the 2001 Bonds. (A) (1) The 2001 Bonds shall be issued
in one Mode, but such Mode for such Bonds can be changed from time to time in the manner
provided herein.
(2) The 2001 Bonds shall be in the aggregate principal amount of
million_hundred thousand dollars ($ ,000) and shall initially be issued in the Weekly
Mode and shall bear interest at the per annum rate of percent (_%) until ,
2001. The 2001 Bonds-shall thereafter.bear interest at Daily Rates, Weekly Rates or Fixed Rates
DOCSSF 1:468343.5 15
S c7. V
determined from time to time in accordance with the provisions of this Trust Agreement;
provided that the interest rate on the 2001 Bonds shall not exceed the Maximum Rate except as
set forth in Section 13.04 (D). The Series 2001 Bonds shall be dated as of the date of initial
issuance of the Series 2001 Bonds and shall be numbered as determined by the Trustee. Subject
to prior redemption or serialization, the 2001 Bonds shall mature on June 1. 2014.
(B) The Tender Agent, the Trustee, the Remarketing Agent and the County
may treat the Holder of a Bond as the absolute owner thereof for all purposes, whether or not
such Bond shall be overdue, and the Tender Agent, the Trustee, the Remarketing Agent and the
County shall not be affected by any knowledge or notice to the contrary; and payment of the
principal of and premium, if any, and interest on such Bond shall be made only to such Holder,
which payments shall be valid and effectual to satisfy and discharge the liability of such Bond to
the extent of the sum or sums so paid.
(C) The 2001 Bonds shall be dated the date of initial issuance thereof and shall
bear interest during each Interest Accrual Period until the entire principal amount of the Bonds
has been paid.
Section 13.03. Payment of Principal and Interest of 2001 Bonds-. Acceptance of
Terms and Conditions. (A) The interest on the 2001 Bonds shall become due and payable on
the Interest Payment Dates in each year to and including the Maturity Date. and on each
Redemption Date and on the date of any acceleration prior thereto. The principal of the 2001
Bonds shall become due and payable on the Principal Payment Dates. The principal of and
premium, if any, and interest on the 2001 Bonds shall be payable in lawful money of the United
States of America. The interest on the 2001 Bonds shall be paid by the Trustee on the Interest
Payment Dates (i) in the case of Bonds in the Daily Mode or the Weekly Mode, by wire transfer
of immediately available funds to an account specified by the Holder of record thereof on the
applicable Record Date in a writing delivered to the Trustee and (ii) in the case of Bonds in a
Fixed Rate Mode, by check mailed by the Trustee to the respective Holders of record thereof on
the applicable Record Date at their addresses as they appear on the applicable Record Date in the
books required to be kept by the Trustee pursuant to the provisions of Section 2.08 hereof, except
that in the case of such Holder of$1,000,000 or more in aggregate principal amount of Bonds,
upon the written request of such Holder to the Trustee, specifying the account or accounts to
which such payment shall be made, payment of interest shall be made by wire transfer of
immediately available funds on the Interest Payment Date following such Record Date. Any
such request shall remain in effect until revoked or revised by such Holder by an instrument in
writing delivered to the Trustee. The principal of and premium, if any.on each Bond shall be
payable on the Principal Payment Date, upon surrender thereof at the office of the Trustee.
(B) By the acceptance of its Bond, the Holder thereof shall be deemed to have
agreed to all the terms and provisions of such Bond as specified in such Bond and this Trust
Agreement including, without limitation, the applicable.Interest.Periods, interest rates (including
any applicable Alternate Rate), Purchase Dates, Mandatory Purchase Dates, Purchase Prices,
mandatory and optional purchase and redemption provisions applicable to such Bond, method
and timing of purchase, redemption, payment, etc. Such Holder further agrees that if, on any
date upon which one of its Bonds is to be purchased, redeemed or paid at maturity or earlier due
date, funds are on deposit with the Tender Agent or the Trustee to pay the full amount due on
DOCSSI-1.468343.5 16
SO,
such Bond, then such Holder shall have no rights under this Trust Agreement other than to
receive such full amount due with respect to such Bond and that interest oil such Bond shall
cease to accrue as of such date.
Section 13.04. Calculation and Payment of Interest: Maximum Rate. (A) When
a Daily Mode or a Weekly Mode is in effect, interest shall be calculated for the actual number of
days elapsed on the basis of a 360 day year. When a Fixed Rate Mode is in effect, interest shall
be calculated on the basis of:a 360 day year comprised of twelve 30-day months. Payment of
interest on each Bond shall be made on each Interest Payment Date for such Bond for unpaid
interest accrued during the Interest Accrual Period to the Holder of record of such Bond'on the
applicable Record Date.
(B) Some or all of the Bonds in any Mode, other than the Fixed Rate Mode,
may be changed to any other Mode at the times and in the manner hereinafter provided.
Subsequent to such change in Mode (other than a change to the Fixed Rate Mode), any Bond
may again be changed to a different Mode at the times.and in the manner hereinafter provided.
The Fixed Rate Mode shall be in effect until the Maturity Date, or acceleration thereof prior to
the Maturity Date, and may not be changed to any other Mode.
(C). Absent.manifest error, the interest rates contained in the records of the
Trustee shall be conclusive and binding upon the County, the Remarketing Agent, the Trustee,
the Providers and the Holders.
(D) No Bonds, other than Provider Bonds, shall bear interest at an interest rate
higher than the Maximum Rate.
(E) In the absence of manifest error, the determination of interest rates and
interest periods by the Remarketing Agent shall be conclusive and binding, upon the
Remarketing Agent, the Trustee, the Provider, the County and the Holders.
Section 13.05. Provider Bonds. Notwithstanding anything herein to the contrary,
Provider Bonds shall be repaid and shall pay interest at the Provider Rate in the manner and at
the times set forth in the Liquidity Agreement.
Section 13.06. Determination of Interest Rate During the Daily Mode and the.
Weeklv Mode. The interest rate for any Bond in the Daily Mode or Weekly Mode shall be the
rate of interest per annum determined by the Remarketing Agent on and as of the applicable Rate
Determination Date as the minimum rate of interest which, in the opinion of the Remarketing
Agent, under then-existing market conditions would result in the sale of such Bond on the Rate .
Determination Date at a price equal to the principal amount thereof, plus accrued and unpaid
interest, if any.
(A) During the Daily Mode, the Remarketing Agent shall establish the Daily
Rate by 10:00 A.M. on each Rate Determination Date. The Daily Rate for any day during the
Daily Mode which is not a Business Day shall be the Daily Rate established on the immediately
preceding Rate Determination Date. The Remarketing Agent shall make the Daily Rate
available by telephone to any Holder or Notice Party requesting such rate, and on'a weekly basis
DOCSSf 1:468343.5 17
to the Trustee and on the last Business Day of each month, shall give notice to the Tender Agent
of the Daily Rates that were in effect for each day of such month by Electronic Means.
(B) During the Weekly Mode, the Remarketing Agent shall establish the
Weekly Rate by 4:00 P.M. on each Rate Determination Date. The Weekly Rate shall be in effect
(i) initially, from and including the first day the Bonds become subject to the Weekly Mode to
and including the following Tuesday and (ii) thereafter, from and including each Wednesday to
and including the following Tuesday. The Remarketing Agent shall make the Weekly Rate
available(i) after 4:00 P.M. on the Rate Determination Date by telephone to any Holder or
Notice Party requesting such rate and (ii) by Electronic Means to the Tender Agent not-later than
2:00'P.M. on the second Business Day immediately succeeding the Rate Determination Date.
The Tender Agent shall give notice of such interest rates to the. Trustee by Electronic Means not
later than 4:00 P.M. on the second Business Day immediately succeeding the Rate Determination
Date.
Section 13.07. Determination of Fixed Rate. The Remarketing Agent shall
determine the Fixed Rate for a Bond in the Fixed Rate Mode in the mariner and at the times as
follows: Not later than 4:00 P.M. on the Rate Determination Date for such Bond, the
Remarketing Agent shall determine the Fixed Rate for such Bond. The Fixed Rate shall be the
minimum interest rate which, in the sole judgment of the Remarketing Agent, will result in a sale
of such Bond at a price equal to the principal amount thereof on the Rate Determination Date.
The Remarketing Agent shall make the Fixed Rate available by telephone to any Notice Party
requesting such Fixed Rate and in writing to the County, the Tender Agent, and the Trustee.
Upon request of any Notice Party, the Tender Agent shall give notice Of such rate by Electronic
Means.
Section 13.08. Alternate Rates. (A) The following provisions shall apply in the
event (i) the Remarketing Agent fails or is unable to determine the interest rate for any Bond or
(ii) the method by which the Remarketing Agent determines the interest rate with respect to a
Bond shall be held to be unenforceable by a court of law of competent jurisdiction. These
provisions shall continue to'apply until such time as the Remarketing Agent again makes such
determinations. In the case of clause (ii) above., the.Remarketing Agent shall again make such
determination at such time as there is delivered to the Remarketing Agent and the County an
opinion of Bond Counsel to the effect that there are no longer any legal prohibitions against such
determinations. The following shall be the methods by which the interest rates shall be
determined for a Bond as to which either of the events described in clauses (i) or (ii) shall be
applicable. Such methods shall be applicable from and after the date either of the events
described in clauses (i) or (ii) first become applicable to such Bond until such time as the events
described in clauses (i) or (ii) are no longer.applicable to such Bond.
(B) If such Bond is in the Daily Mode, then such Bond shall bear interest
during each subsequent Interest Period at the last lawful interest rate for such Bond set by the
Remarketing Agent pursuant to Section 13.06 hereof.
(C) If such Bond is in the Weekly Mode, then such Bond shall bear interest at
100% of the greater of(i) 30-day AA.-financial commercial paper as posted on the Federal
DOCSSF 1:468343.5 18
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Reserve Board's website (www.bog.frb.fed.us\releases\cp, and (ii) 30-day LIBOR in effect ori
the first day of such Interest Period.
Section 13.09. Conditions Precedent to Delivery of the Bonds.
(A) Bonds Delivered on the Closing Date. The 2001 Bonds delivered on the
Closing Date shall be executed by the County for issuance and delivered to the Trustee, and
thereupon shall be authenticated by the Trustee and delivered to the COLinty or pursuant to its
Written Request, but only upon the receipt by the Trustee of:
(i) an executed copy of this Supplemental Trust Agreement;
(ii) an Opinion of Counsel as required by Section 3.02(c);
(iii) the Certificates of the County required by Section 3.02(d) stating that all
requirement of Article III and all conditions to the issuance of the 2001 Bonds have been
complied with;
(iv) a Written Request of the County as to the delivery of the 2001 Bond; and
(v) the Liquidity Facility.applicable to such Bonds.
(B) Additional Bonds Delivered Subsequent to the Closing Date. It shall be a
condition precedent to the authentication of the Bonds by the Trustee or the Tender Agent, as the
case may be, that the requirements of Sections 3.01 and 3.02 are satisfied with respect to such
Series of Additional Bonds.
Section 13.10. Changes in Mode. Subject to the provisions of this Section, the
County may effect a change in Mode with respect to a Series of Bonds or a Bond by following
the procedures set forth in this Section. If a change in Mode will make a Bond subject to Rule
15c2-12 promulgated under the Securities Exchange Act of 1934, as amended, a continuing
disclosure undertaking shall be entered into by the County and the Trustee satisfying the
requirements of said Rule.
(A) Changes to a Mode Other Than the Fixed Rate Mode. A Series of Bonds
(other than Bonds in the Fixed Rate Mode) may be changed from one Mode to another Mode -
(other than the Fixed Rate Mode) as follows:
(i) Mode Change Notice; Notice to Holders., No later than the forty-fifth
(45th) day (or such shorter time as may be agreed to by the County, the Trustee, the Tender
Agent and the Remarketing Agent) preceding the proposed Mode Change Date, the County shall
give written notice to the Notice Parties of its intention to effect a change in the Mode from the
Mode then'prevailing (for purposes of this Section, the "Current Mode") to another Mode (for.
purposes of this Section, the "New Mode") specified in such written notice. Notice of the
proposed change in Mode shall be given to the Holders pursuant to Section 16.03 hereof.
DOCSSf 1:468343.5 19
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(ii) Determination of Interest Rates. The New Mode for a Bond shall
commence on the Mode Change Date for such Bond and the interest rate shall be determined by
the Remarketing Agent in the manner provided in Sections 13.06.
(iii) Conditions Precedent.
(1) The Mode Change Date shall be a Business Day.
(2) The following items shall have been delivered to the Trustee,
the Tender Agent and the Remarketing Agent on the Mode Change Date:
a) for Bonds that are not Taxable Bonds, in the case of a
change from a Short-Term Mode to a Fixed Rate Mode or from a Fixed Rate Mode to a Short-
Term Mode, a Favorable Opinion of Bond Counsel dated the Mode Change Date and addressed
to the Trustee, the Tender Agent and the Remarketing Agent,
b) a Rating Confirmation Notice, and
c) a Liquidity Facility with a principal component equal to
the principal amount of the Bonds being converted, and with an appropriate interest component
for the applicable Mode and with an Expiration Date not earlier than 5 days after the end of the
initial Interest Accrual Period for such Bond.
(B) Change to Fixed Rate Mode. At the option of the County, a Bond or
Series of Bonds may be changed to the Fixed Rate Mode as provided in this Section 13.10(B).
Not less than forty-five (45) days (or such shorter time as may be agreed to by the County, the
Trustee and the Remarketing Agent).before the proposed Mode Change Date for such Bond, the
County shall give written notice to the Notice Parties stating that the Mode will be changed to
the Fixed Rate Mode and setting forth the proposed Mode Change Date and whether or not the
Bonds'to be converted to the Fixed Rate Mode will be covered by municipal bond insurance or
some other credit facility (and, if so, for how long). Such Notice shall also state whether or not
some or all of the Bonds to be converted shall be converted to Serial Bonds and, if so, the
applicable serial maturity dates and serial payments and, if applicable, the remaining mandatory
sinking fund payments, all as determined pursuant to the provisions of Subsection (v) of this
subsection(B). Any such change in Mode shall be made as follows:
(i) Mode Change Date. The Mode Change Date shall be a Business Day.
(ii) Notice to Holders. Not less than the thirtieth (30th) day next preceding the
Mode Change Date, the Tender Agent shall mail, in the name of the Countv, a notice of such
proposed change to the Holders of the Bonds being converted stating that the Mode will be
changed to the.Fixed,Rate Mode, the proposed Mode Change.Date and that such Holder is
required to tender its Bonds for purchase on such proposed Mode Change Date.
(iii) General Provisions Applying to Change to Fixed Rate Mode. The change
to the Fixed Rate Mode shall not occur unless there shall have been delivered to the Trustee and
the Remarketing Agent on the Mode Change Date a Favorable Opinion of Bond Counsel dated
the Mode Change Date and addressed to the Trustee and the Remarketing Agent.
boCssr I:469343.5 20
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(iv) Determination of Interest Rate. The Fitted Rate for a Bond to be
converted to the Fixed Rate Mode shall be'established by the Remarketing Agent pursuant to the
provisions of Section 13.07.
(v) Serialization. Upon the conversion of Bonds to the Fixed Rate Mode, the
.County may elect to serialize such Bonds by providing the mandatory sinking fund payments be
converted to serial maturities.
(C) Failure to Satisfy Conditions Precedent to a Mode C hanue. In the event
the conditions described above in subsections (A)(iii) and/or (B)(iii), as applicable, of this
Section have not beensatisfied by the applicable Mode Change Date, then the New Mode or
Fixed Rate Mode, as the case may be, shall not take effect. If the failed change in Mode was
from the Daily Mode, the applicable Bond shall remain in the Daily Mode, and if the failed
change in Mode was from the Weekly Mode, the applicable Bond shall remain in the Weekly
Mode, in each-case with interest rates established in accordance with the applicable provisions of
Section 13.06 hereof on and as of the failed Mode Change Date.
Section 13.11. Form of Bonds. The 2001 Bonds and the assignment to appear
.thereon shall each be in substantially'the form set forth in Exhibit A attached hereto and.
incorporated herein, with appropriate or necessary insertions, omissions and variations as
permitted or required hereby. Upon any change in Mode, if'and.to the extent necessary, a new
form of Bonds shall be prepared by the County which contains the terms of the Bonds applicable
in the new Mode.
Section 13.12. Execution and Authentication of Bonds. The 2001 Bonds shall be
executed in the name of the County and on its behalf by manual or facsimile signature of the
Chair of the Board of Supervisors of the County and the Treasurer-"Tax Collector of the County
and the seal of the County or a facsimile thereof shall be affixed to the Bond and attested by the
manual or facsimile signature of the Clerk of the Board of.Supervisors of the County.. Tile 2001
Bonds shall be authenticated by the Trustee or the Tender Agent by the manual signature of an
authorized officer of the Trustee or the Tender Agent, as the case may be, except that only the
Trustee shall authenticate Bonds upon original issuance and pursuant to Sections 2.05 and 13.13
hereof.
If any of the officers who shall have signed any of the Bonds or whose facsimile
signature shall be upon the Bonds shall cease to be such officer of the County before the Bond so
signed shall have been actually authenticated by the Trustee or the Tender Agent or delivered,
such Bonds nevertheless may be authenticated, issued and delivered.with tile'same force and
effect as though the person or persons who signed such Bonds or whose facsimile signature shall
.be upon the Bonds had not ceased to be such officer of the County; and any such Bond may be
signed on behalf of the County by those persons who, at the actual date of the execution of such
Bonds., shall be the proper officers of the County, although at the date of such Bond any such
person shall not have been such officer of the County.
Section 13.13. Transfer and Exchange of Bonds. All 2001 Bonds are transferable
or exchangeable by the Holder thereof, in person or by the Holder's attorney duly authorized in
writing, at the office of the Trustee in the books required to be kept by the Trustee pursuant to
ucx•ssr1:468343.5 21
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the provisions of Section 2.08 hereof, upon surrender of such Bonds accompanied by delivery of
a duly executed written instrument of transfer or exchange in a form approved by the Trustee.
Whenever any Bond or Bonds shall be surrendered for transfer or exchange, the Trustee shall
execute and deliver a new Bond or Bonds of Authorized Denominations of the same Series and
aggregate principal amount, except that the Trustee may require the payment by any Holder
requesting such transfer or exchange of any tax or other governmental charge required to be paid
with respect to such transfer or exchange. All Bonds surrendered pursuant to the provisions of
this Section 13.13 shall be cancelled by the Trustee, shall not be redelivered and shall be
disposed of as directed by the County. All Bonds issued in exchange for Bonds pursuant to this
Section 13.13 shall be in the same Mode as the Bonds in exchange for which such Bonds were
issued.
During the Fixed Rate Mode, the Trustee shall not be required to transfer or
exchange (i) any Bonds during the period commencing on the date ten days prior to the date of
selection of Bonds for redemption and ending on such date of selection, (ii) any Bond selected
for redemption in whole or in part or(iii) any Bonds during the period of fifteen (15) days
preceding any Interest Payment Date.
Section 13.14. Book-Entry System. (A) The County hereby provides that Bonds
in any Mode may be issued in book-entry form. The 2001 Bonds shall be issued in book entry
form registered in the name of Cede & Co. as nominee of DTC, or such other nominee as DTC
shall designate.
(B) Bonds issued in book-entry form shall be issued in the form of one or
more fully-registered immobilized certificate in required principal amount of Bonds outstanding
which certificates, taken together, will represent the total aggregate principal amount of the
Bonds, which Bonds (except as provided in paragraph (1) below) shall be registered in the name
of a nominee of DTC; provided, that if DTC shall request that the Bonds be registered in the
name of a different nominee, the Trustee shall exchange all or any portion of the Bonds for an
equal aggregate principal amount of Bonds registered in the name of such other nominee or
nominees of DTC. No person other than DTC or its nominee shall be entitled to receive from the
County, the Trustee or the Tender Agent a Bond or any other evidence of ownership of the
Bonds, or any right to receive any payment in respect thereof, unless DTC or its nominee shall
transfer record ownership of all or any portion of the Bonds on the Bond registration books to be
maintained by the Trustee; in connection with discontinuing the book-entry system as provided
in paragraph(I) below or otherwise.
(C) So long as the Bonds or any portion thereof are registered in the.name of
DTC or any nominee thereof, all payments of the purchase price, principal, prepayment price of
or interest on such Bonds shall be made to DTC or its nominee in immediately available funds
on.the dates provided for such payments under this Trust Agreement and at such times as
provided.in the Representation Letter. Each such payment to DTC or its nominee shall be valid
and effective to fully discharge all liability of the County, the Trustee, the Tender Agent or the
Remarketing Agent with respect to the purchase price, principal, prepayment price or of interest
on the Bonds to the extent of the sum or sums so paid. In the event of the prepayment of less
than all of the Bonds Outstanding of any maturity, the Trustee shall not require surrender by
DTC or its nominee of the Bonds so prepaid, but DTC or its nominee may retain such Bonds and
DOC SSF 1:468343.5 22
make an appropriate notation thereon as to the amount of such partial prepayment; provided, that
DTC shall deliver to the Trustee, upon request, a written confirmation of such partial prepayment
and thereafter the records maintained by the Trustee shall be conclusive as to the amount of the
Bonds of such maturity which have been prepaid.
(D) All transfers of beneficial ownership interests in such Bonds issued in
book-entry form shall be effected by procedures by DTC with its participants for recording and
transferring the ownership of beneficial interests in each such series of Bonds.
(E) The County, the Trustee and the Tender Agent may treat DTC (or its
nominee) as the sole and exclusive Holder of the Bonds registered in its name for the purposes of
payment of the purchase price, principal, prepayment price of or interest on the Bonds, selecting
the Bonds or portions.thereof to be optionally purchased or prepaid, giving any notice permitted
or required to be given to Holders under this Trust Agreement, registering the transfer of Bonds,
obtaining any consent or other action to be taken by Holders and for all other purposes
whatsoever; and the County, the Trustee and the Tender Agent shall not be affected by any
notice to the contrary. The County, the Trustee and the Tender Agent shall not have any
responsibility or obligation to any participant in DTC, any person claiming a beneficial
ownership interest in the Bonds under or through DTC or any such participant, or any other
person which is not shown on the Bond registration books as being a Holder, with respect to: (1)
the Bonds; or (2) the accuracy,of any records maintained by DTC or any such participant; or (3)
the payment by DTC or any such participant of any amount in respect of the purchase price;
principal, prepayment price of or interest on the Bonds; or (4) any notice which is permitted or
required to be given to Holders under this Trust Agreement; or (5) the selection by DTC or any
such participant of any person to receive payment in the event of a partial purchase or
prepayment of the Bonds; or (6) any consent given or other action taken by DTC as Holder.
(F) So long as the Bonds or any portion thereof are registered in the name of DTC
or any nominee thereof, all notices required or permitted to be given to the Holders under this
Trust Agreement shall be given to DTC as provided in the Representation Letter, in form and
content satisfactory to DTC,the County and the Trustee.
(G) In connection with any notice or other communication to be provided to
Holders pursuant to this Trust Agreement by the County, the Trustee or the Tender Agent with
respect to any consent or other action to be taken by Holders, DTC shall consider the date of
receipt of notice requesting such consent or other action as the record date.for such consent or
other action; provided, that the County, the Trustee or the Tender Agent shall give DTC notice of
such special record date not less than 15 calendar days in advance of such special record date to
the extent possible.
(H) Any successor Trustee, in its written acceptance of its duties under this
Trust Agreement, shall agree to take any actions necessary from time to time to comply with the
requirements of the Representation Letter.
(I) The book-entry system for registration of the ownership of the Bonds in book-
entry form may be discontinued at any time if: (1) after notice to the County, the Trustee and the
Tender Agent, DTC determines to resign as securities depository for the Bonds; or (2) after
DOCSSF 1:468343.5 231
notice to'DTC, the Trustee and the Tender Agent, the County determines that a continuation of
the system of book-entry transfers through DTC (or through a successor securities depository) is
not in the best'interests of the County;-or (3) after notice to the County, the Trustee and the
Tender Agent, DTC determines that the current system of book-entry transfers through DTC
does not permit DTC,to act as a securities depository for the Bonds during the time that the
Bonds are in a particular Mode. In each of such events (unless, in the cases described in clause
(1) or(3) above, the County appoints,a successor securities depository), the Bonds shall be
delivered in registered certificate form to such persons, and by series in such maturities and
principal amounts, as may be designated by DTC, but without any liability on the part of the
County, the Trustee or the.Tender Agent for the accuracy of such designation. Whenever DTC
requests the County and the Trustee to do so, the County and the Trustee shall cooperate with
DTC in taking appropriate action after reasonable notice to arrange for another securities
depository to maintain custody of certificates evidencing the Bonds.
(J) To exercise any optional tender pursuant to Section 16.01 hereof, in addition
to notifying the Remarketing Agent and the Tender Agent, as the case may be, a beneficial
owner must notify its DTC participant, if the Remarketing Agent is not such Holder's DTC
participant, of its decision to demand the purchase of its Bonds as provided herein.
(K) In the event that the Remarketing Agent fails to remarket all of the Bonds
on a Purchase Date, such beneficial owner.'s DTC participant shall cause to be transferred such
Bonds to an account of the Trustee at DTC and the Trustee, upon receipt of the proceeds drawn
under the Liquidity Facility, shall cause the Purchase Price of the Bonds to be transferred to an
account of such beneficial owner's DTC participant against receipt of such Bonds.
(L) Upon remarketing of Bonds, payment of the purchase price thereof shall
be made to DTC and no physical delivery or.surrender of Bonds is expected to be required: such
delivery or surrender of the Bonds shall be accomplished through DTC's book entry system.
Such sales shall be made through DTC participants (which may include the Remarketing Agent)
and the DTC participants shall transmit payment to the beneficial Holders whose Bonds were
purchased pursuant to a remarketing. The County, the Trustee, the Tender Agent and the
Remarketing Agent are not responsible for transfers of payment to DTC participants or
beneficial Holders.
(M) The County hereafter may amend this Trust Agreement or enter into one
or more amendments or supplements hereto without notice to or consent of the.Holders of any of
the Bonds in order(i) to offer to the beneficial Holders of the Bonds the option of receiving any
Bonds in certificated form or(ii) to require the execution and delivery of certificated Bonds
representing a portion or all of the.Bonds, (A) if DTC shall cease to serve as depository and no
successor depository can be found to serve upon terms satisfactory to the County, or (B) if the
County determines that it would be in its best interest or in.the best interests of the beneficial
Holders of the Bonds that they obtain certificated Bonds; provided., that any such amendment or
supplement is in form reasonably satisfactory to the Trustee.
DOCssr 1:468343. 24
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ARTICLE XIV
ISSUANCE OF 2001 BondS
Section 14.01. Procedure for the Issuance of 2001 Bonds. At any time after the
sale of the 2001 Bonds in accordance with the Act, the County shall execute the 2001 Bonds for
issuance hereunder and shall deliver them to the Trustee, and thereupon the 2001 Bonds shall be
authenticated and delivered by the Trustee to the purchaser thereof upon the Written Request of
the County. Pursuant to such Written Request, the purchaser of the 2001 Bonds will pay
$ of the purchase price thereof to the Trustee. Upon receipt of such payment for the
2001 Bonds from the purchaser thereof, the Trustee shall transfer or deposit the proceeds
received from such sale to the following entities or in the following respective accounts or funds,
in the following order of priority The Trustee may, in its discussions, establish a temporary
funds or accounts in its books and records to facilitate such transfers:
(1) $ for deposit in the Costs of Issuance Fund (2001
Bonds), which fund the Trustee is hereby directed to create. All money in the Costs of Issuance
Fund (2001 Bonds) shall be used and withdrawn by the Trustee to pay the Costs of Issuance of
the 2001 Bonds upon receipt of a Written Request of the County filed with the Trustee. Each
such request shall be sequentially numbered and shall state the person to whom payment is to be
made, the amount to be paid, the purpose for which the obligation was incurred and that such
payment is a proper charge against said fund. On June 1, 2001, or upon the earlier Written
Request of the County, any remaining balance in the Costs of Issuance Fund (2001 Bonds) shall
be transferred to the Bond Fund.
(2) $ for deposit to the Escrow Fund,.which amount
when combined with cash and securities on deposit therein in the amount of$ will
equal the amount needed to refund the portion of the 1994 Series A Bonds being refunded and
defeased pursuant to the Escrow Agreement.
(3) $ for payment of the tender price (including
accrued interest) of 1994 Series A Bonds tendered for purchase and accepted by the County for
purchase. Such 1994 Series A Bonds so purchased shall be cancelled by the Trustee.
Section 14.02. Establishment of Administrative Fee Fund.
(A) The Trustee shall establish and maintain a fund, separate from any other
fund established and maintained hereunder, designated as the "Administrative Fee Fund." There
shall be deposited in the Administrative Fee Fund such amounts as are required to pay the
Administrative Fees and Expenses related to the administration of the Bonds. Deposits to the
Administrative Fee Fund are to be made by the County, as needed, on an annual basis. Such
amounts shall be subject to annual appropriation by the County.
(B) Upon written direction of the County, funds deposited in the
Administrative Fee Fund are to be paid for Administrative Fees and Expenses of the Bonds
including but not limited to the fees and expenses of or relating to the Liquidity Facility, the
Trustee, the Remarketing Agent, the Tender Agent, the Rating Agencies and other expenses as
DOCSSF 1:468343.5 25
determined by the County to be reasonably necessary to administer the Bonds. Moneys
remaining in the Administrative Fee Fund after payment of the above-referenced expenses, if
any, are to be paid on an annual basis into the Bond Fund.
Section 14.03. Establishment of Purchase Fund.
(A) Purchase Fund. The Tender Agent shall establish and maintain a special
fund designated as the "Purchase Fund," and within such fund two separate accounts designated,
respectively, as the "Liquidity Deposit Account" and the "Remarketing Proceeds Account." The
money in the Purchase Fund shall be held in trust and applied solely as provided in this Section
and Article XVI.
The Tender Agent shall deposit all moneys, other than proceeds of a payment
under the.Liquidity Facility, delivered to it hereunder for the purchase of Bonds into the
Remarketing Proceeds Account and shall hold all such moneys in trust for the exclusive benefit
of the Person that shall have so delivered such moneys until the Bonds purchased with such
moneys shall have been delivered to it for the account of such Person and, thereafter, for the
benefit of the Holders tendering the Bonds until such Holders are paid the Purchase Price of their
tendered Bonds from the Purchase Fund and thereafter for the benefit of the Liquidity Facility
Provider. The Tender Agent shall deposit all moneys delivered to it hereunder from a payment
under the Liquidity Facility for the purchase of Bonds into the Liquidity Deposit Account and
shall hold all such moneys in trust for the benefit of the Holders who shall deliver Bonds to it for
purchase until such Holders are paid the Purchase Price of their tendered Bonds and thereafter
for the benefit of the Liquidity Facility Provider.
Moneys in the Liquidity Deposit Account and moneys in the Remarketing
Proceeds Account shall not be commingled with each other or with other funds held by the
Tender Agent and shall remain uninvested and are not pledged or available to the payment of
principal or interest on the Bonds,.but are to be used solely to pay the Purchase Price of the
tendered Bonds or for the benefit of the Liquidity Facility Provider.
ARTICLE XV
REDEMPTION OF 2001 BondS
Section 15.01. Optional Redemption of 2001 Bonds in the Daily Mode or the
Weekly Mode. The Series 2001 Bonds in the Daily Mode or the Weekly Mode are subject to
optional redemption by the County, in whole or in part, in Authorized Denominations on any
Business Day, at a redemption price equal to the principal amount thereof, plus accrued and
unpaid interest, if any, without permission.
Section 15.02. Optional Redemption of 2001 Bonds in the Fixed Rate Mode.
The Series 2001 Bonds in the Fixed Rate Mode may be subject to redemption in
whole on any date or in part on any Interest Payment Date (and if in part, in such order of
maturity as the County shall specify and within a maturity by lot or by such other method as the
Tender Agent determines to be fair and reasonable and in Authorized Denominations) at such
times and at such redemption prices as the County shall specify in its Written Request to convert
DO CSSF1:468343.5 26
• a-c al
to the Fixed Rate Mode, which request shall be submitted to the Tender Agent, the Trustee'and
the Remarketing Agent. V
Section 15.03. Mandatory Sinking Fund Redemption. The 2001 Bonds maturing
on June 1, 2014, upon notice as hereinafter provided, shall also be subject to mandatory sinking
fund redemption prior to maturity, in part on June 1.of each year on and after June 1, by
lot, from and in the amount of the mandatory sinking account.payments set forth below at a
redemption price equal to the sum of the principal amount thereof plus accrued interest thereon
to the redemption date, without premium.
Redemption Date
June 1 Principal Amount
2011 $ .000
2012 .000
2013 .000
20141 ,000
t Maturity
The above scheduled redemption may be satisfied by the allocation of Bonds
thereto that have been optionally redeemed. The Trustee shall establish and maintain within the
Principal Account'a separate Sinking Account.for the 2001 Bonds as provided in Section 3.02(b).
Section 15.04. Selection of Bonds for Redemption. Provider Bonds shall be
redeemed prior to any other Bonds. If less than all Outstanding 2001 Bonds maturing by their
terms on anv one date are to be redeemed at any one.time, the Trustee shall select the 2001
Bonds of such maturity date to be redeemed in any manner that it deems appropriate and fair and
shall promptly notify the County in writing of the numbers of the 2001 Bonds so selected for
redemption. For purposes of such selection,.2001 Bonds shall be deemed to be composed of
multiples of minimum Authorized Denominations and any such multiple may be separately
redeemed. In'the event 2001 Bonds are optionally redeemed, the County may designate which
sinking account payments are allocated to such optional redemption.
Section 15.05. Notice of Redemption; Cancellation; Effect of Redemption.
Notice of redemption shall be mailed by first-class mail by the Trustee, not less than thirty (30)
nor more than sixty (60).days prior to the redemption date to (i) the respective Bondowners of
the 2001 Bonds designated for redemption at their addresses appearing on the registration books
of the Trustee, (ii) the Liquidity Facility Provider, and (iii) the Remarketing Agent. Each notice .
of redemption shall state the date of such notice, the date of issue of the Bonds, the Series, the
redemption date, the Redemption Price, the place or places of redemption (including the name
and appropriate address of the Trustee), the CUSIP number(if any) of the maturity or maturities,
and, if less than all of any such maturity is to be redeemed, the distinctive certificate numbers of
the 2001 Bonds of such maturity, to be redeemed and, in the case of 2001 Bonds to be redeemed
in part only, the respective portions of the principal amount thereof to be redeemed. Each such
notice shall also state that on said date there will become due and payable on each of said 2001
Bonds the redemption price thereof, together with interest accrued thereon to the redemption
DXSSF 1:468343.5 27
5�•7
date, and that from and after such redemption date interest thereon shall cease to accrue, and
shall require that such 2001 Bonds be then surrendered at the address of the Trustee specified in
the redemption notice. Failure to receive such notice or any defect therein shall not invalidate
any of the proceedings taken in connection with such redemption.
The County may, at its option, prior to the date fined for redemption in any notice
of redemption rescind and cancel such notice of redemption by Written Request to the Trustee
and the Trustee shall mail notice of such cancellation to the recipients of the notice of
redemption being cancelled.
If notice of redemption has been duly given as aforesaid and money for the
payment of the redemption price of the Bonds called for redemption is held by the Trustee, then
on the redemption date designated in such notice Bonds so called for redemption shall become
due and payable, and from and after the date so designated interest on such Bonds shall cease to
accrue, and the Bondowners of such Bonds shall have no rights in respect thereof except to
receive payment of the redemption price thereof.
ARTICLE XVI
PURCHASE OF BONDS
Section 16.01. Optional Tenders of Bonds in the Daily Mode or the Weekly
Mode. The.Holders of Bonds in a Daily Mode or a Weekly Mode may elect to have their Bonds
(or portions of those Bonds in amounts equal to any Authorized Denominations) purchased on
any Business Day at a price equal to the Purchase Price, (i) in the case of Bonds in a Daily Mode,
upon delivery of an irrevocable telephonic notice of tender to the Remarketing Agent not later
than 11:00 A.M. on the Purchase Date specified by the Holder; and (ii) in the case of Bonds in a
Weekly Mode, upon delivery of an irrevocable written notice of tender or irrevocable telephonic
notice of tender to the Remarketing Agent, promptly confirmed in writing to the Tender Agent,
not later than 4:00 P.M. on a Business Day not less than seven (7) days before the Purchase Date
specified by the Holder in such notice. Such notices of tender shall state the CUSIP number,
Bond number and the principal amount of such Bond and that such Bond shall be purchased on
the Purchase Date specified above. The Bond shall be delivered (with all necessary
endorsements) at or before 12:00 noon on the Purchase Date at the office of the Tender Agent in
New York, New York; provided, however, that payment of the Purchase Price shall be made
pursuant to this Section only if the Bond so delivered to the Tender Agent conforms in all
respects to the description thereof in the notice described in this Section. Payment of the
Purchase Price with respect to purchases under this Section shall be made to the Holders of
tendered Bonds by wire transfer in immediately available funds by the Tender Agent by the time
required in Section 16.06(D) hereof on the Purchase Date.
Section 16.02. Repurchase by Agreement. A Holder who gives the notice of
tender as set forth above may repurchase the Bonds so tendered on such Purchase Dates if the
Remarketing Agent agrees to sell the Bonds so tendered to such Holder. If such Holder decides
'to repurchase such Bonds and the Remarketing Agent agrees to sell the specified Bonds to such
Holder, the delivery requirements set forth above shall be waived.
DOC SSS 1:468343.5 28
570.
Section 16.03. Mandatory Purchase on Mode Chant ems.
Bonds to be changed from one Mode to another Mode (other than a change to the
Fixed Rate Mode) are subject to mandatory purchase on the Mode Change Date at the Purchase
Price as provided in this Section. Bonds purchased pursuant to this Section shall be delivered by
the Holders (with all necessary endorsements) to the office of the Tender Agent in New York,
New York, at or before 12:00 noon on the Mode Change Date and payment of the Purchase Price
shall be made by wire transfer in immediately available funds by the time required in Section
16.06(D) hereof on the Mode Change Date. The Tender Agent shall give,notice of such
mandatory purchase by mail to the Holders of the Bonds subject to mandatory purchase no less
than thirty (30) days prior to the Mandatory Purchase Date. The notice shall state the Mandatory
Purchase Date, the Purchase Price, the numbers of the Bonds to be purchased if less than all of
the Bonds owned by such Holder are to be purchased and that interest on Bonds subject to
mandatory purchase shall cease to accrue from and after the Mandatory Purchase Date. The
failure to mail such notice with respect to any Bond shall not affect the validity of the mandatory
purchase of any other.Bond with respect to which notice was so mailed. Any notice mailed will
be conclusively presumed to have been given, whether or not actually received by any Holder.
Section 16.04. Mandatory Purchase on Conversion to Fixed Rate. Bonds to be
changed to the Fixed Rate Mode are subject to mandatory purchase on the Mode Change Date at
the Purchase Price as provided in this Section 16.04. Bonds purchased pursuant to this Section
shall be delivered by the Holders(with all necessary endorsements) to the office of the Tender
Agent in New York, New York, at or before 12:00 noon on the Mode Change Date and payment
of the Purchase Price shall be made by wire transfer of immediately available finds by the time
required in Section 16.06(D) hereof on the Mode Change Date. The Tender Agent shall give
notice of such mandatory purchase as part of the notice of change of Mode to be sent to the
Holders pursuant to Section 13.10(A)(i) hereof. .
Section 16.05. Mandatory Purchase on Liquidity Facility Substitution, Expiration,
or Default.
(A) Upon Substitution of Alternate Liquidity Facility_. In the event that the
County notifies the Tender Agent and the Trustee that an Alternate Liquidity Facility will be
delivered in substitution for the current Liquidity Facility; the Bonds having the benefit of the
Liquidity Facility shall be subject to mandatory purchase at the Purchase Price thereof on the
Substitution Date.
(B) Mandatory Purchase Upon Expiration or Default. The Bonds shall be
subject to mandatory purchase at a purchase price equal to 100% of the principal amount thereof,
plus accrued interest to the Mandatory Purchase Date described below, upon the occurrence of
any of the events stated below:
(1) as to all Bonds of a Series secured by a Liquidity Facility, on
the Business Day designated by the Trustee, which day shall be not more than ten (10) days
following receipt by the Trustee of notice from the Liquidity Facility Provider that an "Event of
Default" that requires mandatory purchase has occurred under the Liquidity Agreement with
respect to such Series of Bonds; or
DOCSSP 1:468343.5 29
(2) as to all Bonds secured by a Liquidity Facility, on the Business
Day not later than five (5) days preceding the Expiration Date of any Liquidity Facility (the
"Expiration Tender Date") with respect to such Series of Bonds.
(C) Notice of Mandatory Purchase. The Tender Agent shall give notice of
such mandatory purchase by mail to the Holders of the Bonds subject to mandatory purchase no
less than thirty (30) days (seven (7) days in the case of purchases described in Subsection (B)(1)
of this Section) prior to the Mandatory Purchase Date. The notice shall state the Mandatory
Purchase Date, the Purchase Price and that interest on Bonds subject to mandatory purchase shall
cease to accrue from and after the Mandatory Purchase Date and, as appropriate, shall contain
descriptions of the Alternate Liquidity Facility as provided in Section 16.15(C). The failure to
mail such notice with respect to any Bond shall not affect the validity of the mandatory purchase
of any other Bond with respect to which notice was so mailed. Any notice mailed will be
conclusively presumed to have been given, whether or not actually received by any Holder.
Bonds purchased pursuant to this Section shall be delivered by the Holders (with all necessary
endorsements) to the office of the Tender Agent in New York, New York, at or before 12:00
noon on the Mandatory Purchase Date, and payment of the Purchase Price of such Bonds shall
be made by wire transfer in immediately available funds by the Tender Agent by the time
required in Section 16.06(D) hereof on such Mandatory Purchase Date.
Section 16.06. Remarketing of Bonds; Notices.
(A) Remarketing of Bonds. The Remarketing Agent shall use its best efforts
to offer for sale:
(1) all Bonds or portions thereof as to which notice of tender
pursuant to Sections 16.01 hereof has been given;
(2) all Bonds required to be purchased pursuant to Sections 16.03,
16.04 and 16.05(A) hereof; and
(3) all Provider Bonds.
(B) Notice of Remarketing; Registration Instructions: New Bonds. On each
Purchase Date or Mandatory Purchase Date, as the case may be:
(1) unless the Remarketing Agent has notified the Tender Agent of
its failure to market, the Remarketing Agent shall notify the Tender Agent by Electronic Means
not later than 10:00 A.M. or, for Bonds in a Daily Mode, by 11:15 A.M. of the amount of
tendered Bonds which were successfully remarketed, the names of the tendering Holders and the
registration instructions (i.e., the names, addresses and taxpayer identification numbers of the
purchasers and the desired Authorized Denominations) with respect thereto and shall transfer or
have delivered to the Tender Agent by no later than 10:30 A.M. or, for Bonds in a Daily Mode,
by 11:1.5 A.M. the sale price of such Bonds for deposit to the Purchase Fund; and
(2) the Tender Agent shall authenticate new Bonds for the
respective purchasers thereof which shall be available for pick-up by the Remarketing Agent not
later than 2:30 P.M.
DOC S S f I:468343.5 30
SD �
(C) Transfer of Funds; Draw on Liquidity Facility. On each Purchase Date or
Mandatory,Purchase Date, as the case may be, the Tender Agent shall direct the Trustee to draw
on the Liquidity Facility by 11:00 A.M. or, in the case of a Daily Mode, by 11:45 A.M. in an
amount equal to the Purchase Price of all Bonds tendered or deemed tendered less the aggregate
amount of remarketing proceeds received from the remarketing of Bonds.
(D) Payment of Purchase Price. At or before 2:30 P.M. on the Purchase Date
or Mandatory Purchase Date, as the case may be, and upon receipt by the Tender Agent of 100%
of the aggregate purchase price of the tendered Bonds, the Tender Agent shall pay the Purchase
Price of the Bonds from the Purchase Fund to the Holders thereof by bank wire transfer. Such
payments shall be made in immediately available funds. If at 5:00 P.M. on any Purchase Date or
Mandatory Purchase Date, as the case may be, any balance remains in the Purchase Fund or
Liquidity Deposit Account in excess of any unsatisfied purchase obligation, such excess shall be
promptly returned to the Liquidity Facility Provider.
(E) Inadequate Funds for Tenders. If the funds available for purchases of
Bonds pursuant to this"Article XVI are inadequate for the purchase of all Bonds tendered on any
Purchase Date, no purchase shall be consummated and the Tender Agent shall, after any
applicable grace period: (i) return all tendered Bonds to the Holders thereof; (ii) return all
moneys held in the Remarketing Proceeds Account to the Remarketing Agent for return to the
Persons providing such moneys; and (iii) return all moneys held in the Liquidity Deposit
Account to the Liquidity Facility Provider.
(F) Remarketing of Provider Bonds. The Remarketing Agent shall offer for
sale and use its best efforts to sell all Provider Bonds provided that such Provider Bonds may be
remarketed only upon the condition that, prior to completion of the sale thereof and pursuant to
such remarketing, the Liquidity Facility shall have been reinstated by its terms with respect to
such Provider Bonds by the amount of such funds, such amount not to be less than the principal
amount of such remarketed Provider Bonds plus accrued interest thereon and written notice of
such reinstatement shall be provided to the Tender Agent. The Tender Agent, only upon receipt
of written notice from the Liquidity Facility Provider with respect to reinstatement of the
Liquidity Facility, will request the Trustee to register such remarketed Provider Bonds in the
name of the purchasers thereof.
(G) The Remarketing Agent shall not remarket any Bonds to the County or
any officers.or agents thereof in their official capacity, and the County will not purchase any
Bonds from the Remarketing Agent.
Section 16.07. Source of Funds for Purchase of Bonds. By the time required in
Section 16.06(D) hereof on the Purchase Date or the Mandatory Purchase Date, as the case may
be, the Tender Agent shall purchase tendered Bonds from the tendering Holders at the Purchase
Price by wire transfer in immediately available funds. Funds for the payment of such Purchase
Price shall be derived solely from.the following sources in the order of priority indicated and
neither the Tender Agent nor the Remarketing Agent shall be obligated to provide funds from
any other source:
DOC SSI-'1:468343.5 1
. sD �
(1) immediately available funds on deposit in the Remarketing
Proceeds Account; and
(2) immediately available funds on deposit in the Liquidity
Deposit Account.
Section 16.08. Delivery of Bonds. On each Purchase Date or Mandatory
Purchase Date, as the case may be, the Bonds shall be delivered as follows:
(1) Bonds sold by the Remarketing Agent and purchased with
moneys described in Section 16.07(1) hereof shall be delivered by the Remarketing Agent to the
purchasers of those Bonds by 3:00 P.M.;.and
(2) Bonds purchased by the Tender Agent with moneys described
in Section 16.07(2) hereof shall be registered immediately in the name of the Provider or its
nominee on or before 2:30 P.M.
Section 16.09. Undelivered Bonds. If Bonds to be purchased are not delivered by
the Holders to the Tender Agent by 12:00 noon on the Purchase Date or the Mandatory Purchase
Date, as the case may be, the.Tender Agent shall hold any funds received for the purchase of
those Bonds in trust in a separate account and shall pay such funds to the former Holders of the
Bonds upon presentation of the Bonds. Such undelivered Bonds shall cease to accrue interest as
to the former Holders on the Purchase Date or the Mandatory Purchase Date, as the case may be,
and moneys representing the Purchase Price shall be available against delivery of those Bonds at
the Principal Office of the Tender Agent; provided, however, that any funds which shall be so
held by the Tender Agent and which remain unclaimed by the former Holder of a Bond not
presented for purchase for a period of two years after delivery of such fiends to the Tender Agent,
shall, to the extent permitted by law,upon request in writing by the County.and the furnishing of
security or indemnity to the Tender Agent's satisfaction, be paid to the County free of any trust
or lien and thereafter the former Holder of such Bond shall look only to the County and then only
to the extent of the amounts so received by the County without any interest thereon and the
Tender Agent shall have no further responsibility with respect to such moneys or payment of the
purchase price of such Bonds. The Tender Agent shall authenticate a replacement Bond for any
undelivered Bond which may then be remarketed by the Remarketing Agent.
Section 16.10.No Purchases or Sales After Payment Default. Anything in this
Trust Agreement to the contrary notwithstanding, if there shall have occurred and be continuing
an Event of Default described in subsection (a) or (b) of Section 8.01 hereof, the Remarketing
Agent shall not remarket any Bonds..
Section 16.11. The Remarketing Agent for 2001 Bonds. The County hereby
appoints Bear, Stearns & Co. Inc. as Remarketing Agent for the Series 2001 Bonds. Each
successor Remarketing Agent appointed in accordance with this Trust Agreement shall designate
its principal office and signify its acceptance of the duties and obligations imposed upon it as
described herein by a written instrument of acceptance delivered to the County, the Trustee and
the Liquidity Facility Provider.
The Remarketing Agent shall:
DOCSSI'1:468343.5 32
(a) hold all moneys delivered to it hereunder for the purchase of Bonds in trust
for the exclusive benefit of the Person or Persons that shall have so delivered such moneys until
the Bonds purchased with such moneys shall have been delivered to or for the account of such
Person or Persons;
(b) keep such books and records as shall be consistent with prudent industry
practice and to make such books and records available for inspection by the County, the
Liquidity Facility Provider, the Trustee and the Tender Agent at all reasonable times;
(c) determine the Daily Rates, the Weekly Rates and the Fixed Rate and give
notice of such rates to the Trustee, the Tender Agent and the County in accordance with
Article 13 hereof,
(d) offer for sale and use its best efforts to find purchasers for Provider Bonds
and the Variable Rate Bonds tendered for purchase, any such sale to be made at a price equal to
100% of the principal amount thereof,plus accrued interest, if any, to the purchase date, in
accordance with the terms of this Trust Agreement, provided, however, that if there shall have
occurred and be continuing an Event of Default described in subsection (a) or (b) of Section 8.01
of which the Remarketing Agent has notice, there shall be no sales of Bonds pursuant to Section
16.10; and
(e) deliver to the Tender Agent all Variable Rate Bonds held by it in accordance
with the terms of the Trust Agreement and the Remarketing Agreement.
The Remarketing Agent may in good faith hold any other form of indebtedness
issued by the County; own, accept or negotiate any drafts, bills of exchange, acceptances or
obligations thereof, and make disbursements therefor and enter into any commercial or business
arrangement therewith; all without any liability on the part of the Remarketing Agent for any real
or apparent conflict of interest by reason of any such actions.
Section 16.12. Qualifications of Remarketin AAUzent. The Remarketing Agent
shall be authorized by law to perform all the duties imposed upon it. The Remarketing Agent
may at any time resign and be discharged of the duties and obligations described in this Trust
Agreement by giving at least thirty (30) days' notice to the County, the Trustee, the Liquidity
Facility Provider and the Tender Agent. Successor Remarketing Agents may be appointed from
time to time by the County. The Remarketing Agent may be removed at any time by the County
upon written notice to the Remarketing Agent, the Liquidity Facility Provider, the Tender Agent
and the Trustee, so long as a successor Remarketing Agent shall have assumed the duties thereof
by the effective date of such removal.
Notwithstanding any other provision to the contrary contained herein, any
corporation or association into which Bear, Steams.& Co. Inc., as Remarketing Agent, or any
successor thereto, may be converted or merged, or with which it may be consolidated, or to
which it may sell or transfer its marketing business and assets as a whole or substantially as a
whole, shall become successor Remarketing Agent hereunder and fully vested with all of the
rights, powers, trusts, duties and obligations of Remarketing Agent hereunder, without the
execution or filing of any instrument or any further act.
DOCS S P I:468343.5 33
.�� y
Section 16.13. 'Fender A.Rent. The County hereby appoints BNY Western Trust
Company, as the Tender Agent, and it and each successor Tender Agent appointed in accordance
with this Trust Agreement shall designate its principal corporate office and signify its acceptance
of the duties and obligations imposed upon it as described herein by a written instrument of
acceptance delivered to the County, the Trustee, the Liquidity Facility Provider and the
Remarketing Agent. Each Tender Agent shall:
(a) hold all Bonds delivered to it for purchase hereunder in trust for the
exclusive benefit of the respective Holders that shall have so delivered the Bonds until
moneys representing the purchase price of the Bonds shall have been delivered to or for
the account of or to the order.of such Holders;
(b). hold all moneys delivered to it hereunder for the purchase of Bonds in
trust in noncommingled funds for the exclusive benefit of the Person that shall have so
delivered such moneys until the Bonds purchased with such moneys shall have been
delivered to it for the account of such Person and, thereafter, for the benefit of the
Holders tendering the Bonds; and
(c) keep such books and records as shall be consistent with prudent industry
practice and to make such books and records available for inspection by the County, the
Trustee and the Remarketing Agent.
Section 16.14. Qualifications of Tender Agent. (A) Any successor Tender Agent
shall be a bank:, banking institution or trust company duly organized under the laws of the United
States of America or any state or territory thereof, having (or whose parent holding company
has) a combined capital stock, surplus and undivided profits of at least $125,000,000, and
authorized by law to perform all duties imposed upon it hereunder. Each Tender Agent shall
have an office or agency or drop location in New York, New York. A Tender Agent may at any
time resign and be discharged of its duties and obligations by giving at least sixty (60) days'
notice to the County, the Trustee, the Remarketing Agent, all Holders of Variable Rate Bonds
then Outstanding and the Liquidity Facility Provider. Any Tender Agent may be removed at any
time by the County upon notice to the Trustee, the Liquidity Facility Provider and the
Remarketing Agent. Any such resignation or removal shall not take effect until the appointment
of a successor Tender Agent. Successor Tender Agents may be appointed from time to time by
the County. The Trustee shall provide notice of such successor Tender Agent to all Holders of
the Variable Rate Bonds.
(B) Upon the resignation or removal of a Tender Agent, such Tender Agent
shall deliver any Bonds and moneys held by it in such capacity to its successor.
Section 16.15. Requirements for Liquidity Facility. (A) The initial Liquidity
Facility for the 2001 Bonds will be the Standby Bond Purchase Agreement issued by
Westdeutsche Landesbank Girozentrale , providing for payments to or upon the order of the
Trustee of amounts up to (i) the principal amount of the 2001 Bonds bearing interest at a Daily
Rate or a Weekly Rate when due upon purchase pursuant to a tender, and (ii) days' (or such
other period acceptable to the Rating Agencies) interest on the 2001 Bonds calculated at the rate
of twelve percent (12%) per annum.
DOCSSr I:468343.5 34
Upon any reduction in the aggregate principal amount of 2001 Bonds
Outstanding, the Trustee shall request the Liquidity Facility Provider to make permanent
correlative reductions in the amounts that may be drawn under the Liquidity Facility. If at any
time there shall cease to be any 2001 Bonds Outstanding hereunder, the Trustee shall promptly
surrender the Liquidity Facility to the Liquidity Facility Provider, in accordance with the terms
of the Liquidity Facility, for cancellation.
The Trustee shall notify the County not less than 100 days prior to the Expiration
Date of the Liquidity Facility of its pending expiration and, unless otherwise instructed by the
County, shall automatically request extensions of the Liquidity Facility no later than sixty (60)
days prior to the Interest Payment Date immediately preceding the scheduled Expiration Date of
the Liquidity Facility and shall give the County, the Tender Agent and the Remarketing Agent
notice of any extension of the Liquidity, and shall cause written notice of the Liquidity Facility
Provider's approval of such extension to be delivered to the Trustee, the Tender Agent, the
Remarketing Agent and the County no later than forty-five (45) days prior to the scheduled
Expiration Date of the existing Liquidity Facility. Copies of such notices shall also be provided
to the Rating Agencies.
(B) At any time, the County may provide for the delivery to the Trustee of, or
request that the Trustee execute, an Alternate Liquidity Facility. If an Alternate Liquidity
Facility shall meet the following criteria: (i) the Alternate Liquidity Facility shall comply with
the definition of Liquidity Facility set forth in this Trust Agreement; and (ii) the amount payable
under such Alternate Liquidity Facility is at least equal to the aggregate principal amount of
2001 Bonds Outstanding plus interest to accrue thereon, such interest coverage to be calculated
in the same manner as calculated in connection with the Liquidity Facility which is being
replaced by such Alternate Liquidity Facility, then the Trustee shall accept such Alternate
Liquidity Facility and cause the mandatory purchase of the 2001 Bonds affected thereby on the
Substitution Date and comply with the direction of the County, if any, accompanying it.
(C) The Trustee shall give notice, in the name o_f the County, of any
amendment or termination or expiration of any Liquidity Facility and of the provision of any
Alternate Liquidity Facility and, if appropriate, notice of mandatory purchase in connection with
a Substitution Date, which notice shall (i) describe generally the Liquidity Facility in effect prior
to such amendment, termination, expiration or provision and the Alternate Liquidity Facility in
effect or to be in effect upon such amendment, termination, expiration or provision and (ii) state
the date of such amendment, termination, expiration or provision. Such notice shall be given by
first class mail to all Holders of 2001 Bonds promptly upon notice of such amendment,
termination,.expiration or provision, except that if, as a result of such amendment, termination or
expiration, the 2001 Bonds shall be subject to mandatory purchase, such notice shall be given as
provided in Section 16.05(c) and shall, if such information is furnished by the County, state the
rating category or categories (including any refinements or gradations thereof), if any, in which
such 2001 Bonds are expected to be rated as a result of such amendment, termination, expiration.
or provision. A copy of such notice shall also be provided to the Rating Agencies.
(D) Anything in this Trust Agreement to the contrary notwithstanding, not
later than five (5) days prior to the Expiration Date or in the event that a termination of a
Liquidity Facility shall.require a purchase of 2001 Bonds, the Trustee shall not surrender any
DOCtiffF1:468343.5 35
evidence of such Liquidity Facility until the Trustee shall have made such drawings, if any, or
taken such other actions,.ifany, thereunder as shall be required under this Trust Agreement ill
order to provide sufficient moneys for the related purchase of 2001 Bonds and such moneys shall
have been provided to the Tender Agent; thereafter, such Liquidity Facility may be returned to
the Liquidity Facility Provider which issued it for disposition in accordance with its.terms.
(E) Anything in the Trust Agreement to the contrary notwithstanding, the
Liquidity Facility Provider's consent to actions hereunder where otherwise required shall not be
required during any period that the Liquidity Facility Provider fails to honor a properly presented
drawing under the Liquidity Facility. '
ARTICLE XVII
MISCELLANEOUS PROVISIONS
Section 17.01. Time Reference. All reference herein to times shall refer to
Eastern time in effect during the referenced circumstance:
Section 17.02. Validity of Supplement. The County and the Trustee hereby
determine that the amendments set forth herein do not under the terms of the Trust Agreement
materially, adversely affect the interest of the Holders, shall become binding without the written
consents of any Holders, and are incompliance with the provisions of Section TO l of the Trust
Agreement.
Section 17.03. Terms of 2001 Bonds Subject to the frust A>reement. Except as
in this First Supplemental Trust Agreement expressly provided, every term and condition
contained in the Trust Agreement shall apply to this First Supplemental Trust Agreement and to
the 2001 Bonds with the same force and effect as if the same were herein set forth at length, with
such omissions, variations and modifications thereof as may be appropriate to make the same
conform to this First Supplemental Trust Agreement.
This First Supplemental Trust Agreement and all the terms and provisions herein
contained shall form part of the Trust.Agreement as fully and with the same effect as if all such
terms and provisions had been set forth in the Trust Agreement. The Trust Agreement is hereby
ratified and confirmed and shall continue in full force and effect in accordance with the terms
and provisions thereof, as supplemented and amended hereby. .
Section 17.04. Execution in Counterparts. This First Supplemental Trust
Agreement may.be executed in several counterparts, each of which shall be deemed an original,
and all of which shall constitute but one and the same instrument.
Section 17.05. Notices; Notices to Rating Agencies. (A) All written notices to be
given hereunder shall be given by mail to the party entitled thereto at its address set forth below,
or atsuch other address as such party may provide to the other party in writing from time to time,
namely:
If to the County: County of Contra Costa
County Administrator's Office
DOCSSF 1:468341.5 36
651 Pine Street
Martinez, California 94553-0063
If to the Trustee or Tender Agent: BNY Western Trust Company
550 Kearny Street, Suite 600
San Francisco, California 94108
Attention: Corporate Trust
If to the Liquidity Facility
Provider:
Remarketing Agent: Bear, Stearns & Co. Inc.
245 Park Avenue, 10`h Floor
New York, New York 10167
Attention: Kyle Pulling
Tel: (212) 272-4930
Fax: (212) 272-7008
(B) The Trustee shall give written notice to the Rating Agencies of the
acceleration, redemption or defeasance of any Bonds, the extension, termination, amendment,
acceleration, substitution or expiration of any Liquidity Facility any mode change and the
amendment of the Trust Agreement, and any change in the Remarketing Agent, the Trustee or
the.Tender Agent.
Section 17.06. Effective Date of First Supplemental Trust Ac-,reement. This First
Supplemental Trust Agreement shall take effect upon its execution and delivery.
[REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY]
DOC SSF 1:468343.5 37
IN WITNESS WHEREOF, the parties hereto have executed this First
Supplemental Trust Agreement by their officers thereunto duty authorized as of the day and year
first written above.
COUNTY OF CONTRA COSTA
By
Chair of the Board of Supervisors
ATTEST:
Clerk of the Board of Supervisors
BNY WESTERN TRUST COMPANY
By
Authorized Officer
DOCSSF I:468343.5 38
EXHIBIT A
[FORM OF 2001 Bond]
No. $
COUNTY OF CONTRA COSTA, CALIFORNIA
TAXABLE PENSION OBLIGATION BONDS
REFUNDING SERIES 2001
THE OBLIGATIONS OF THE COUNTY HEREUNDER. INCLUDING
THE OBLIGATION TO MAKE ALL PAYMENTS OF INTEREST
AND PRINCIPAL WHEN DUE, ARE OBLIGATIONS OF THE
COUNTY IMPOSED BY LAW AND ARE ABSOLUTE AND
UNCONDITIONAL, WITHOUT ANY RIGHT OF SET-OFF OR
COUNTER CLAIM. THIS BOND DOES NOT CONSTITUTE AN
OBLIGATION OF THE COUNTY FOR WHICH THE COUNTY IS
OBLIGATED OR PERMITTED TO LEVY OR PLEDGE ANY FORM
OF TAXATION OR FOR WHICH THE COUNTY HAS LEVIED OR
PLEDGED OR WILL LEVY OR PLEDGE ANY FORM OF
TAXATION. NEITHER THE BONDS NOR THE OBLIGATION OF
THE COUNTY TO MAKE PAYMENTS ON THE BONDS
CONSTITUTE AN INDEBTEDNESS OF THE COUNTY, THE STATE
OF CALIFORNIA, OR ANY OF ITS POLITICAL SUBDIVISIONS
WITHIN THE MEANING OF ANY CONSTITUTIONAL OR
STATUTORY DEBT LIMITATION OR RESTRICTION.
Interest Maturity Dated
Rate Date Date CUSIP
June 1,
REGISTERED HOLDER:
PRINCIPAL SUM: DOLLARS
The COUNTY OF CONTRA COSTA, a political subdivision, duly organized and
validly existing under and pursuant to the Constitution and laws of the State of California (the
"County"), for value received, hereby promises to pay to the registered owner identified above or
registered assigns, on the maturity date specified above (subject to any right of prior redemption
hereinafter provided for) the principal sum specified above, together with interest on such
principal sum from the date of issuance of this Bond until the principal hereof shall have been
paid at the interest rates per annum determined as set forth below, payable on each Interest
Payment Date (as defined.below). Interest due on or before the maturity or redemption of this
DOCSSPI A63343.i A-1
,5-
D L/
Bond shall be payable only by check mailed by first-class mail to the registered owner hereof as
of the close of business of the Trustee on the Record Date (as defined below) immediately
preceding an Interest Payment Date; provided that with respect to Bonds in a Daily Mode or a
Weekly Mode or upon the written request of a Bondholder of$1,000,000 or more in aggregate
principal amount of Bonds of the Series of which this Bond is one received by the Tender Agent
prior to the applicable Record Date, interest shall be paid by wire transfer in immediately
available funds. The principal hereof is payable in lawful money of the United States of
America upon presentation of this Bond at the corporate trust office of BNY Western Trust
Company (the "Trustee"), in San Francisco, California. Capitalized terms used herein and not
defined herein shall have the meanings ascribed to such terms in the Trust Agreement (defined
below).
This Bond is one of a duly authorized issue of bonds of the County designated as
its "Taxable Pension Obligation Bonds" (the "Bonds") and is one of a duly authorized series of
such Bonds known as"Refunding Series 2001" (the "Series 2001 Bonds'') in aggregate principal
amount of Million Hundred Thousand Dollars ($ ), all of
like tenor and date (except for such variations, if any, as may be required to designate varying
numbers, maturities and interest rates), and is issued under and pursuant to the provisions of
Articles 10 and 11 of Chapter 3 of Division 2 of Title 5 of the Government Code of the State of
California, and all laws amendatory thereof or supplemental thereto (the "Act") and under and
pursuant to.the provisions of a trust agreement, dated as of February 1, 1994, as amended from
time to time (the "Trust Agreement"), between the County and First Interstate Bank of
California, as prior trustee, including as amended by a First Supplemental Trust Agreement,
dated as of January 1, 2001, between the County and the Trustee (copies of the Trust Agreement.
are on file at the corporate trust office of the Trustee in ). The County
has issued an initial series of Bonds, the 1994 Series A Bonds, in the aggregate principal amount
of$337,365,000, a portion of which was refunded by the Series 2001 Bonds and which are
issued and payable on a parity with the Series 2001 Bonds.
Additional bonds may be issued which will rank equally as to security with the
Bonds, but only subject to the conditions and upon compliance with the procedures set forth in
the Trust Agreement. Reference is hereby made to the Act and to the Trust Agreement and any
and all amendments thereof and supplements thereto for a description of the terms on which the
Bonds are issued, the provisions with regard to the nature and extent of the Revenues, the rights
of the registered owners of the Bonds, security for payment of the Bonds, remedies upon default
and limitations thereon, and amendment of the Trust Agreement (with or without consent of the
registered owners of the Bonds); and all the terms of the Trust Agreement are hereby
incorporated herein and constitute a contract between the County and the registered owner of this
Bond, to all the provisions of which the registered owner of-this Bond, by acceptance hereof,
agrees and consents.
The Bonds shall be payable at a Daily Rate, a Weekly Rate or a Fixed Rate (each
a"Mode") as specified by the County, at the direction of the County, effective for periods
selected by the County from time to time. Payment of the purchase price of the Bonds will be
initially supported by a standby bond purchase agreement (as supplemented and amended and as
to any substitute therefor, the "Liquidity Facility") to be executed and delivered by Westdeutsche
Landesbank Giorzentrale (together with any successor thereto or provider of an Alternate
DOCSSF 1:468343.5 A-2
Liquidity Facility,the"Liquidity Facility Provider") and the County dated as of January 1,
?001, as amended from time to time.
Interest Accrual Period
The term "Interest Accrual Period" means.the period during which a Bond
accrues interest payable on any Interest Payment Date applicable thereto. With respect to Bonds
in the Daily Mode, the Interest Accrual Period shall commence on (and include).the first day of
each month and shall extend through (and include) the last day of such month; provided, that if
such month is the month in which the Bonds are authenticated and delivered, or if the Bonds are
changed to the Daily Mode during such month, the Interest Accrual Period shall commence on
the date of authentication and delivery of the Bonds or the Mode Change Date, as the case may
be; provided, further, that if no interest has been paid on Bonds in the Daily Mode, interest shall
accrue from the date of original authentication and delivery of the Bonds or the Mode Change.
Date, as appropriate. With respect to a Bond in a Mode other than the Daily Mode, the Interest
Accrual Period shall commence on (and include) the last Interest Payment Date to which interest
has been paid (or, if no interest has been paid in such Mode, from the date of original
authentication and delivery of such Bond, or the Mode Change Date, as the case may be) to, but
not including, the Interest Payment Date on which interest is to be paid. If, at the time of
authentication of any Bond, interest is in default or overdue on the Bonds, such Bond shall bear
interest from the date to which interest has previously been paid in full or made available for
payment in full on Outstanding Bonds.
Interest Payment Date
The term "Interest Payment Date" means each date on which interest is to be paid
and is: (i) with respect to a Bond in the Daily Mode, the first Business Day of each month, (ii)
with respect to a Bond in the Weekly Mode, the first Business Day of each month; (iii) with
respect to a Bond in the Fixed Rate Mode, each Stated Interest Payment Date (beginning with the
first Stated Interest Payment Date that occurs no earlier than three months atter the
commencement of the Fixed Rate Mode for such Bond); (iv) with respect to Provider Bonds, the
dates required under the applicable Liquidity Agreement; and (v) (without duplication as to any
Interest Payment Date listed above) any Mode Change Date and each Maturity Date and, with
respect to the 1994 Series A Bonds, June 1 and December 1 of each year..commencing June 1,
1994.
Interest Period
The term "Interest Period" means, for a Bond in a particular Mode, the period of
time that such Bond bears interest at the rate (per annum).which becomes effective at the
beginning of such period. The Interest Period for each Mode is as follows:
(1) for a Bond in the Daily Mode, the period from (and
including) the Mode Change Date upon which such Bond is changed to the Daily Mode to (but
excluding) the next Rate Determination Date for such Bond, and thereafter the period from and
including the current Rate Determination Date for such Bond to (but excluding) the next Rate
Determination Date for such Bond and ;
DOCSSF1:-68343.5 A-3
(?) for a Bond in the Weekly Mode, the period from (and
including) the Mode Change Date upon which such Bond is changed to the Weekly Mode to
(and including) the next Tuesday, and thereafter the period from (and including) each
Wednesday to (and including) the next Tuesday.
Rate Determination Date
The term "Rate Determination Date" means the date on which the interest rate on
a Bond shall be determined, which, (i) in the case of the Daily Mode, shall be each Business Day
commencing with the first day the Bonds become subject to the Daily Mode; (ii) in the case of
the initial conversion to the Weekly Mode, shall be no later than the Business Day prior to the
Mode Change Date, and thereafter, shall be each Tuesday or, if Tuesday is not a Business Day,
the next succeeding day or, if such day is not a Business Day, then the Business Day next
preceding such Tuesday; and (iii) in the case of the Fixed Rate Mode, shall be a date determined
by the Remarketing Agent which shall be at least one Business Day prior to the Mode.Change
Date.
The interest rate for any Bond in the Daily Mode or Weekly Mode shall be the
rate of interest per annum determined by the Remarketing Agent on and as of the applicable Rate
Determination Date as the minimum rate of interest which, in the opinion of the Remarketing
.Agent under then-existing market conditions would result in the sale of such Bond on the Rate
Determination Date at a price equal to the principal amount thereof, plus accrued and unpaid
interests, if any. In the event (i) the Remarketing Agent fails or is unable to determine the
interest rate for any Bond or,(ii) the method by which the Remarketing Agent determines the
interest rate with respect to a Bond shall be.held to be unenforceable by a court of law of
competent jurisdiction, the Alternate Rates described in the Trust Agreement shall apply and
continue to apply until such time as the Remarketing Agent again lawfully makes such
determinations.
The Holders of Bonds in a Daily Mode or a Weekly Mode may elect to have their
Bonds purchased on any Business Day at a price equal to the Purchase Price which will be paid
by the Tender Agent upon compliance with the provisions of the Trust Agreement, including,
(i) in the case of Bonds in a Daily Mode, upon delivery of an irrevocable telephonic notice of
tender to the Remarketing Agent not later than 11:00 A.M. on the Purchase Date specified by the
Holder; and (ii) in the case of Bonds in a Weekly Mode, upon delivery of an irrevocable written
notice of tender or irrevocable telephonic notice of tender to the Remarketing Agent, promptly
confirmed in writing to the Tender Agent, not later than 4:00 P.M. on a Business Day not less
than seven (7) days before the Purchase Date specified by the Holder in such notice.
This Bond is subject to mandatory tender for purchase at a purchase price equal to
100% of the principal amount hereof, plus accrued interest to the date fixed for purchase on the
following dates:
(1) Bonds to be changed from one Mode to another Mode are
subject to mandatory purchase on the Mode Change Date;
DOC SSF{:468343.5 A-4
J
(2) In the event the County notifies the Tender Agent and the
Trustee that an Alternate Liquidity Facility will be delivered in substitution of the current
Liquidity Facility, the Bonds having the benefit of the Liquidity Facility shall be subject to
mandatory purchase at the purchase price thereof on the Substitution Date;
(3) As to all Bonds of a Series secured by a Liquidity Facility
on the Business Day designated by the Trustee, which day shall be not more than ten (I 10) days
following receipt by the Trustee of notice from the Liquidity Facility Provider that an '`Event of
Default" that requires mandatory purchase has occurred under the Liquidity Agreement with
respect to such Series of Bonds; and
(4) As to all Bonds secured by a Liquidity Facility, on the
Business Day not later than five (5).days preceding the Expiration Date of any Liquidity Facility
with respect to such Series of Bonds.
Interest payable on any Bond shall cease to accrue (i) on the mandatory purchase
date for such Bond if the owner of such Bond has not tendered such Bond on such purchase date,
provided that there has been irrevocably deposited with the Trustee an amount sufficient to pay
the purchase price thereof, including interest accrued thereon to such date; (ii) on the maturity
date thereof, provided that there has been irrevocably deposited with the Trustee an amount
sufficient to pay the principal amount thereof, plus interest accred thereon to such date; or (iii)
on the redemption date thereof, provided that the redemption notice requirements set forth in the
Trust Agreement have been followed with respect to such Bond and there has been irrevocably .
deposited with the Trustee an amount sufficient to pay the redemption price thereof, plus interest
accrued thereon to such date. The owner of such Bond shall not be entitled to any other payment
for such Bond, and such Bond shall no longer be outstanding and entitled to the benefits of the
Trust Agreement, except for such payment from moneys held by the Trustee for such payment.
The interest rate borne by this Bond shall not exceed twelve percent (12%) per
annum, unless this Bond is a Provider.Bond or the maximum interest rate permitted by law.
When a Daily Mode or a Weekly Mode is in effect, interest shall be calculated on the basis of a
360 day.year.. When a Fixed Rate Mode is in effect, interest shall be calculated on the basis of a
360 day year comprised of twelve 30-day months. Payment of interest on each Bond shall be
made on each Interest Payment Date for such Bond for unpaid interest accrued during the
Interest Accrual Period to the Holder of record of such Bond on the applicable Record Date.
Some or all of the Bonds in any Mode, other than the Fixed Rate Mode, may be
changed to any other Mode.at the times and in the manner hereinafter provided. Subsequent to
such change in Mode (other than a change to the Fixed Rate Mode), any Bond may again be
changed to a different Mode at the times and in the manner provided in the Trust Agreement.
The Fixed Rate Mode shall be in effect until the maturity date, or acceleration thereof prior to
the maturity date, and may not be changed to any other Mode.
Bonds in the Daily Mode or the Weekly Mode are subject to optional redemption
by the County, in whole or in part, in Authorized Denominations on any date, at a redemption
price equal to the principal amount thereof, plus accrued and unpaid interest, if any, to the
redemption date without premium.
DOCSSI-'1:468343.5 A-5
Bonds in the Fixed Rate Mode are subject to redemption in whole on any date or
in part on any Interest Payment Date as specified in the Trust Agreement.
The Bonds maturing on June 1, 2014, upon notice as provided in the Trust
Agreement, shall also be subject to mandatory sinking fund redemption prior to maturity, in part
on June 1 of each year on the dates and in the amount of the mandatory sinking account
payments set forth in the Trust Agreement at a redemption price equal to the sum of the principal
amount thereof plus accrued interest thereon to the redemption date, without premium.
If this Bond is called for redemption and payment is duly provided therefor as
specified in the Trust Agreement, interest shall cease to accrue hereon from and after the date
fixed for redemption.
If an Event of Default shall occur, the principal of all Bonds may be declared due
and payable upon the conditions, in the manner and with the effect provided in the Trust
Agreement. The Trust Agreement provides that in certain events such declaration and its
consequences may be rescinded by the Holders of not less than a majority in aggregate principal
amount of the Bonds then outstanding or by the Trustee.
The Bonds in a Daily Mode or a Weekly Mode are issuable only as fully
registered Bonds without coupons in denominations of$100,000 or any integral multiple thereof,
and Bonds in a Fixed Mode may be in denominations of$5,000 or any integral multiple thereof.
Subject to the limitations and upon payment of the charges, if any, provided in the Trust
Agreement, Bonds may be exchanged, at the corporate trust office of the Trustee, for a like
aggregate principal amount of Bonds of other authorized denominations.
This Bond is transferable by the registered owner hereof, in person or by an
attorney duly authorized in writing, at the corporate trust office of the Trustee, but only in the
manner, subject to the limitations and upon payment of the charges, if any, provided in the Trust
Agreement, and upon surrender and cancellation of this Bond. Upon such transfer a Bond or
Bonds, of authorized denomination or denominations, for the same aggregate principal amount,
will be issued to the transferee in exchange hereof.
The County and the Trustee may treat the registered owner hereof as the absolute
owner hereof for all purposes, and the County and the Trustee shall not be affected by any notice
to the contrary.
The Trust Agreement and the rights and obligations of the County and of the
Holders of the Bonds and of the Trustee may be modified or amended from time to time and at
any time in the manner, to the extent, and upon the terms provided in the Trust Agreement.
Neither the members of the County nor any natural person executing the Bonds
shall be liable personally on the Bonds or be subject to any personal liability or accountability by
reason of the issuance thereof.
It is hereby certified and recited that any and all conditions, things and acts
required to exist, to have happened and to have been performed precedent to and in the issuance
of this Bond do exist, have happened and have been performed in due time, form and manner as
DOCSSF 1:168343.5 A-6
required by the provisions of the Act and by the Constitution and laws of the State of California,
and that the amount of this Bond,'together with all other indebtedness of the County, does not
exceed any limit prescribed by the Act, or by the Constitution and laws of the State of California,
and is not in excess of the amount of Bonds permitted to be issued under the Trust Agreement.
This Bond shall not be entitled to any benefit under the "Crust Agreement, or
become valid or obligatory for any purpose, until the certificate of authentication and registration
hereon endorsed shall have been signed by the Trustee or the Tender Agent..
IN WITNESS WHEREOF, COUNTY OF CONTRA COSTA lias caused this
Bond to be executed in its name and on its behalf by the manual signature of its Chair of the
Board of Supervisors and the Treasurer-Tax Collector of the County and its seal to be
reproduced hereon and attested by the manual signature of its Clerk of the Board of Supervisors,
all as of the date of initial issuance and delivery hereof.
COUNTY OF CONTRA COSTA
By
Chair of the Board of Supervisors
By
Treasurer-Tax Collector
ATTEST:
Clerk of the Board of Supervisors
DOC'SSF 1:468343.5 A-7
[FORM OF CERTIFICATE OF'AUTHENTICATION
TO APPEAR ON SERIES 2001 BONDS
This is one of the Bonds described in the within-mentioned Trust Agreement
which has been registered and authenticated on:
BNY WESTERN TRUST COMPANY, as Trustee
By
DATE Authorized Signatory
BNY WESTERN TRUST COMPANY, as Tender
Agent
By
DATE Authorized Signatory
DOC SSP I:468343.5 A-8
a,6-01
[FORM OF ASSIGNMENT TO
APPEAR ON SERIES 2001 BONDS]
.For value received the undersigned hereby sells, assigns and transfers unto
(Taxpayer Identification Number: ) the within Bond and all rights
thereunder, and hereby irrevocably constitutes and appoints attorney to transfer the
within bond on the books kept for registration thereof, with full power of substitution in the
premises. .
Dated:
PLEASE INSERT SOCIAL SECURITY NUMBER, TAXPAYER IDENTIFICATION
NUMBER OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
Note: The signature to this Assignment must correspond with the name as written on the face of
the Bond in every particular, without alteration or enlargement or any change whatever.
Signature Guaranteed:
Notice: Signature must be guaranteed by an eligible guarantor institution.
UOCSSF I A68343.s A-9
EXHIBIT B
ELIGIBLE SECURITIES FOR DEFEASANCE PURPOSES
1. Non-callable obligations of, or obligations guaranteed as to principal and interest by. the
United States or any agency or instrumentality thereof: when such obligations are backed by the
full faith and credit of the United States. These include, but are not limited to:
• U.S. Treasury Obligations
All direct or fully guaranteed obligations
• Farmers Home Administration
Certificates of beneficial ownership
• General Services Administration
Participation certificates
• U.S. Maritime Administration
Guaranteed,Title XI.financing
• Small Business Administration
Guaranteed participation certificates
Guaranteed pool certificates
• Government National Mortgage Association (GNMA)
GNMA - guaranteed mortgage-backed securities
GNMA - guaranteed participation certificates
• U.S. Department of Housing and Urban Development
Local authority bonds.
• Washington Metropolitan Area Transit Authority
Guaranteed transit bonds
• State and Local Government Series
• Veterans Administration
Guaranteed REMIC Pass-through certificates
2. Non-callable obligations of government-sponsored agencies that are not backed by the
full faith and credit of the U.S. Government. These include, but are not limited to:
• Federal Home Loan Mortgage Corp. (FHLMC)
Debt Obligations
DOCSSF 1:468343.5 B-1
Z),
• Farm credit System (Formerly: Federal Land Banks, Intermediate Credit Banks,
and Banks for Cooperatives)
Consolidated Systemwide bonds and notes
• Federal Home Loan Banks (FHL Banks)
Consolidated debt obligations
• Federal National Mortgage Association (FNMA)
Debt Obligations
• Student Loan Marketing Association(SLMA)
.Debt obligations
• Resolution Funding Corp. (REFCORP)
Debt obligations
• U.S. Agency for International Development (U.S. A.I.D.)
Guaranteed Notes (must mature at least 4 business days before the appropriate
payment date)
3. Certain stripped securities where the principal-only and interest-only strips are derived
from non-callable obligations issued by the U.S. Treasury, and REFCORP securities stripped by
the Bank of New York. (No custodial receipts, i.e. CATs, TIGERS, unit investment trusts and
mutual funds, etc. will be permitted).
DOCSSF I A68343.5 B-2