HomeMy WebLinkAboutTPFA 00 AGENDA 08-17-98 AGENDA
SPECIAL MEETING ... THI~ TUSTIN PUBLIC FINANL
AUGUST 17, 1998
AUTHORITY
TPFA
8-17-98
CALL TO ORDER
ROLL CALL
REGULAR BUSINESS (ITEM 1)
1,
TUSTIN PUBLIC FINANCING AUTHORITY REVENUE BONDS (TUSTIN RANCH)
SERIES C
In February 1996, the City Council approved the formation of the Tustin Financing
Authority to facilitate the reorganization of Assessment Districts 85-1 and 86-2,
and the concurrent refinancing of the outstanding debt of the two Districts into
Reassessment District 95-1, made up of owner occupied residential property with
fixed rate bond assessments, and Reassessment District 95-2 made up of
commercial and vacant parcels with variable rate assessments. As stated in the
East Tustin Development Agreement, as vacant parcels are developed as owner
occupied residential property, the variable rate debt is converted to fixed rate debt
for the remaining life of the original issue and the parcels become part of
Assessment District 95-1.
Recommendation by the Finance Department:
,
Adopt the following 'Resolution No. TPFA 98-1 of the Tustin Public Financing
Authority authorizing the issuance of not to exceed $4,195,000 aggregate
principal amount of Tustin Public Financing Authority Bonds (Tustin Ranch),
Series C, approving the execution and delivery of a Second Supplemental
Indenture of Trust and Bond Purchase Agreements, and preparation of an
Official Statement and other matters related thereto; approving forms of the
Second Supplemental Indenture of Trust, Bored Purchase Agreement for
City Bonds, Bond Purchase Agreement for Authority Bonds, and the
preliminary Official Statement:
RESOLUTION NO. TPFA 98-1 - A RESOLUTION OF THE BOARD OF
DIRECTORS OF THE TUSTIN PUBLIC FINANCING AUTHORITY
AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $4,195,000
AGGREGATE PRINCIPAL AMOUNT OF TUSTIN PUBLIC FINANCING
AUTHORITY REVENUE BONDS (TUSTIN RANCH), SERIES C, APPROVING
THE EXECUTION AND DELIVERY OF A SECOND SUPPLEMENTAL
INDENTURE OF TRUST AND BOND PURCHASE AGREEMENTS AND THE
PREPARATION OF AN OFFICIAL STATEMENT AND OTHER- MATTERS
RELATED THERETO
Agenda - Tustin Public Financing Authority - Page I
2. Adjourn th,
City Council.
OTHER BUSINESS
ADJOURNMENT
stin Public Financing Authorit'
;eting and reconvene as the
Agenda - Tustin Public Financing Authority - Page 2
DATE:
August 17, 1998
TPFA
8-17-98
lnter-Com
-TO:
FROM:
SUBJECT:
William A. Huston, Executive Director, Tustin Public Financing Authority
Ronald A. Nault, Finance Director
TUSTIN PUBLIC FINANCING AUTHORITY REVENUE BONDS
(TUSTIN RANCH) SERIES C
SUMMARY: In February of 1996 the City Council approved the formation of the Tustin
Financing Authority to facilitate the reorganization of Assessment Districts 85-1 and 86-2, and
the concurrent refinancing of the outstanding debt of the two Districts into Reassessment
District 95-1, made up of owner occupied residential property with fixed rate bond assessments,
and Reassessment District 95-2 made up of commercial and vaCant parcels with variable rate
assessments. In keeping with the City Council's policy as. stated in the East TuStin
Development Agreement, as vacant-parcels are developed as owner occupied residential
property, the variable rate debt is converted to fixed rate debt for the remaining life of the
original issue and the parcels become part of Assessment District 95-1.
RECOMMENDATION:
Adopt Resolution TPFA No. 98-1 of the Tustin Public Financing Authority authorizing the
issuance of not to exceed $4,'195,000 aggregate principal amount of Tustin Public Financing
Authority Bonds (Tustin Ranch), Series C, Approving the execution and delivery of a Second
Supplemental Indenture of Trust and Bond Purchase Agreements, and preparation of an
Official Statement and other matters related thereto, approving forms of the 'enclosed Second
Supplemental Indenture of Trust; Bond Purchase Agreement for City Bonds; Bond Purchase
Agreement for Authority Bonds; and the preliminary Official Statement.
2. Adjourn the Tustin Public Financing Authority Meeting and reconvene as the City Council.
FISCAL IMPACT:
None.
DISCUSSION:
The City of Tustin Reassessment District 95-2 is supported by variable rate debt, with liens applied to
vacant and commercial parcels within the District. The City Council's policy as stated in the East
Tustin Development Agreement requires that as parcels are developed as owner occupied residential
property, the Developer will convert the outstanding variable rate for said parcels in Assessment
District .95-2 to fixed rate debt and the parcels are transferred to Assessment District 95-1. The
Developer, The Irvine Company, has requested that certain parcels with variable rate liens totalling
approximately $4.2 million be converted to fixed rate and transferred to Assessment District 95-1.
This is the second conversion from variable to fixed rate in the Reassessment District. Net of this
conversion, there will be approximately $33.6 million outstanding Reassessment District 95-2 Bonds
with maturities in 2011 and 2013.
Ronald A. Nault
Finance Director
RAN:ts
Attachments
RAN:TPFA98BondConversion.August
1 RESOLUTION NO. TPFA 98-1
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A RESOLUTION OF THE BOARD OF DIRECTORS OF
THE TUSTIN PUBLIC FINANCING AUTHORITY
AUTHORIZING THE ISSUANCE OF NOT TO EXCEED
$4,195,000 AGGREGATE PRINCIPAL AMOUNT OF
TUSTIN PUBLIC FINANCING AUTHORITY REVENUE
BONDS (TUSTIN RANCH), SERIES C, APPROVING THE
EXECUTION AND DELIVERY OF A SECOND
SUPPLEMENTAL INDENTURE OF TRUST AND BOND
PURCHASE AGREEMENTS AND THE PREPARATION OF
AN OFFICIAL STATEMENT AND OTHER MATTERS
RELATED THERETO
WHEREAS, the Tustin Public Financing Authority (the "Authority") was established for
the purpose, among others, of providing for the financing or refinancing of public capital
improvements of any local agency through the purchase by the Authority of obligations of such
local agency pursuant to a bond purchase agreement;
WHEREAS, pursuant to the Indenture of Trust, dated as of February 1, 1996 (the
"Original Indenture"), by and between the Authority and State Street Bank and Trust Company
of California, N.A., as trustee (the "Trustee"), the Authority issued its Revenue Bonds (Tustin
Ranch), Series A (the "Series A Bonds") in the aggregate principal amount of $35,705,000;
WHEREAS, the proceeds of the Series A Bonds were used to purchase $35,705,000
aggregate principal amount of City of Tustin Limited Obligation Improvement Bonds,
Reassessment District No. 95-1 (Tustin Ranch);
WltEREAS, the Original Indenture provides that, in order to Provide the funds required
to acquire certain other fixed rate assessment bonds of the City of Tustin (the "City"), in addition
to the Series A Bonds, the Authority may, subject to the requirements of the Bond Law, by
Supplemental Indenture establish one or more Series of Bonds payable from Revenues on a
parity with the Series A Bonds and secured by a lien upon and pledge of Revenues equal to the
lien and pledge securing the Series A Bonds, and that the Authority may issue and the Trustee
may authenticate and deliver Bonds of any Series so established, in such principal amount as
shall be determined by the Authority in said Supplemental Indenture, but only upon compliance
by the Authority with the provisions of the Original Indenture;
WHEREAS, pursuant to the Original Indenture, as amended and supplemented by the
First Supplemental Indenture, dated as of November 1, 1997, by and between the Authority and
the Trustee, the Authority issued its Revenue Bonds (Tustin Ranch), Series B (the "Series B
Bonds"), in aggregate principal amount of $3,300,000 and the proceeds of the Series B Bonds
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were used to purchase $3,300,000 aggregate principal amount of City of Tustin Limited
Obligation Improvement Bonds, Reassessment District No. 95-2 (Tustin Ranch), Fixed Rate
Bonds, Group One;
WHEREAS, in order to refinance certain public capital improvements, the City of Tustin
(the "City") is issuing not to exceed $4,195,000 of its Limited Obligation Improvement Bonds,
Reassessment District No. 95-2 (Tustin Ranch), Fixed Rate Bonds, Group Two (the "Group Two
Bonds");
WHEREAS, the Authority desires to assist the City with the Group Two Bonds
refinancing by purchasing the Group Two Bonds from the City;
WHEREAS, in order to provide the funds necessary to purchase the Group Two Bonds
from the City, the Authority desires to authorize the issuance of the Tustin Public Financing
Authority Revenue Bonds (Tustin Ranch), Series C (the "Series C Bonds"), in an aggregate
principal amount of not to exceed $4,195,000;
WHEREAS, in order to provide for the authentication and delivery of the Series C
Bonds, to establish and declare the terms and conditions upon which the Series C Bonds are to be
issued and secured and to secure the payment of the principal thereof, premium, if any, and
interest thereon, the Authority proposes to enter into a Second Supplemental Indenture of Trust
with the Trustee (such Second Supplemental Indenture of Trust, in the form presented to this
meeting, with such changes, insertions and omissions as are made pursuant to this Resolution,
being referred to herein as the "Second Supplemental Indenture");
WHEREAS, the Authority proposes to purchase the Group Two Bonds pursuant to a
Bond Purchase Agreement between the City and the Authority (such Bond Purchase Agreement,
in the form presented to this meeting, with such changes, insertions and omissions as are made
pursuant to this Resolution, being referred to herein as the "City Purchase Agreement");
WHEREAS, the Authority has found and determined that the purchase of the Group
Two Bonds by the Authority will result in substantial public benefits, namely, the interest
savings with respect to the Group Two Bonds to be achieved by reason of the credit rating to be
assigned to the Series C Bonds;
WHEREAS, PaineWebber Incorporated (the "Underwriter") has presented the Authority
with a proposal,, in the form of a Bond Purchase Agreement, to purchase the Series C Bonds from
the Authority (such Bond Purchase Agreement, in the form presented to this meeting, with such
changes, insertions and omissions as are made pursuant to this Resolution, being referred to
herein as the "Authority Purchase Agreement");
WHEREAS, there have been prepared and submitted to this meeting forms of:
(a) the Second Supplemental Indenture;
(b) the City Purchase Agreement;
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(c) the Authority Purchase Agreement; and
(d) the Preliminary Official Statement to be used in connection with the offering and
sale of the Series C Bonds (such Preliminary Official Statement in the form presented to this
meeting, with such changes, insertions and omissions as are made pursuant to this Resolution,
being referred to herein as the "Preliminary Official Statement"); and
WHEREAS, the Authority desires to proceed to issue and sell the Series C Bonds and to
authorize the execution of such documents and the performance of such acts as may be necessary
or desirable to effect the offering, sale and issuance of the Series C Bonds;
NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of the Tustin
Public Financing AuthoriW as follows:
Section 1. Subject to the provisions of Section 2 hereof, the issuance of the Series C
Bonds, in the aggregate principal amount of not to exceed $4,195,000, on the terms and
conditions set forth in, and subject to the limitations specified in, the Indenture, is hereby
authorized and approved. The Series C Bonds shall be dated, shall bear interest at the rates, shall
mature on the dates, shall be issued in the form, and shall be as otherwise provided in the Second
Supplemental Indenture, as the same shall be completed as provided in this Resolution.
Section 2. The Second Supplemental Indenture, in substantially the form submitted.to
this meeting and made a part hereof as though set forth herein, be and the same is hereby
approved. The Chairperson of the Board of Directors, or such other member of the Board of
Directors as the Chairperson may designate, the Executive Director of the Authority, the
Assistant Executive Director of the Authority and the Treasurer of the Authority (the
"Authorized Officers") are, and each of them is, hereby authorized and directed, for and in the
name of the Authority, to execute and deliver the Second Supplemental Indenture in the form
submitted to this meeting, with such changes, insertions and omissions as the Authorized Officer
executing the same may require or approve, such requirement or approval to be conclusively
evidenced by the execution of the Second Supplemental Indenture by such Authorized Officer;
provided, however, that such changes, insertions and omissions shall not authorize an aggregate
principal amount of Series C Bonds in excess of $4,195,000, shall not result in a final maturity
date of the Series C Bonds later than September 2, 2013 and shall not result in a tree interest cost
on the Series C Bonds in excess of 6.50%.
Section 3. The City Purchase Agreement, in substantially the form submitted to this
meeting and made a part hereof as though set forth in full herein, be and the same is hereby
approved. The Authorized Officers are, and each of them is, hereby authorized and directed, for
and in the name of the Authority, to execute and deliver the City Purchase Agreement in the form
presented to this meeting, with such changes, insertions and omissions as the Authorized Officer
executing the same may require or approve, such requirement or approval to be conclusively
evidenced by the execution of the City Purchase Agreement by such Authorized Officer.
Section 4. The Authority Purchase Agreement, in substantially the form submitted to
this meeting and made a part hereof as though set forth in full herein, be and the same is hereby
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approved. The Authorized Officers are, and each of them is, herebY authorized and directed, for
and i~x the name of the Authority, to execute and deliver the Authority Purchase Agreement in
the form presented to this meeting, with such changes, insertions and omissions as the
Authorized Officer executing the same may require or approve, such requirement or approval to
be conclusively evidenced by the execution of the Authority Purchase Agreement by such
Authorized Officer; provided, however, that such changes, insertions and omissions shall not
result in an aggregate underwriter's discount (not including any original issue discount) fi'om the
principal amount of the Series C Bonds in excess of 1.5% of the aggregate principal amount of
the Series C Bonds.
Section 5. The Preliminary Official Statement, in substantially the form presented to this
meeting and made a part hereof as though set forth in full herein, with such changes therein as
may be approved by an Authorized Officer, be and the same is hereby approved, and the use of
the Preliminary Official Statement in connection with the offering and sale of the Series C Bonds
is hereby authorized and approved. The Authorized Officers are, and each of them is, hereby
authorized and directed, for and in the name of the Authority, to certify to the Underwriter that
the Preliminary Official Statement has been "deemed final" for purposes of Rule 15c2-12
promulgated by the Securities and Exchange Commission.
Section 6. The preparation and delivery of a final Official Statement (the "Official
Statement"), and its use in connection with the offering and sale of the Series C Bonds, be and
the same is hereby authorized and approved. The Official Statement shall be in substantially the
form of the Preliminary Official Statement with such changes, insertions and omissions as may
be approved by an Authorized Officer, such approval to be conclusively evidenced by the
execution and delivery thereof. The Authorized Officers are, and each of them is, hereby
authorized and directed to execute the final Official Statement and any amendment or
supplement thereto, for and in the name of the Authority.
Section 7. The Authorized Officers are hereby authorized and directed to investigate, or
cause to be investigated, the availability and economic viability of bond insurance for the Series
C Bonds and, if such insurance is determined to be cost effective, to select a bond insurer and to
negotiate the terms of such bond insurance.
Section 8. The Authorized Officers are, and each of them hereby is, authorized and
directed to execute and deliver any and all documents and instruments and to do and cause to be
done any and all acts and things necessary or proper for carrying out the issuance of the Series C
Bonds and the transactions contemplated by the Indenture, the City Purchase Agreement, the
Authority Purchase Agreement, the Official Statement and this Resolution.
Section 9. All actions heretofore taken by the officers and employees of the Authority
with respect to the issuance and sale of the Series C Bonds, or in connection with or related to
any of the agreements or documents referenced herein, are hereby approved,' confirmed and
ratified.
Section 10. This Resolution shall take effect immediately upon its adoption.
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APPROVED and ADOPTED by the Board of Directors of the Tustin Public Financing
Authority on August 17, 1998.
Chairperson
ATTEST:
Secretary
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STATE OF CALIFORNIA )
COUNTY OF ORANGE )
SS
I, Pamela Stoker, Secretary of the Tustin Public Financing Authority hereby certify that
the foregoing is a full, tree and correct copy of a Resolution duly adopted at a meeting of the
Board of Directors of said Authority duly and regularly held on August 17, 1998, of which
~neeting all of the members of said Board of Directors had due notice and at which a majority
thereof were present; and that at said meeting said Resolution was adopted by the following
vote:
AYES: DIRECTORS:
NOES: DIRECTORS:
ABSENT: DHLECTORS'
An agenda of said meeting was posted at least 72 hours before said meeting at 300
Centennial Way, Tustin, California, a location freely accessible to members of the public, and a
brief general description of said Resolution appeared on said ag<ada.
I further certify that I have carefully compared the same with the original minutes of said
meeting on file and of record in my office; that the foregoing Resolution is a full, tree and correct
copy of the original Resolution adopted at said meeting and entered in said minutes; and that said
Resolution has not been amended, modified or rescinded since the date of its adoption, and the
same is now in full force and effect.
Dated: ., 1998
Secretary
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SECOND SUPPLEMENTAL INDENTURE OF TRUST
by and between the
TUSTIN PUBLIC FINANCING AUTHORITY
and
· STATE STREET BANK AND TRUST COMPANY
OF CALIFORNIA, N.A., as Trustee
Dated as of ,1998
RELATING TO
TUSTIN PUBLIC FINANCING AUTHORITY
REVENUE BONDS (TUSTIN RANCH), SERIES C
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Section 14.01.
Section 14.02.
Section 14.03.
Section 14.04.
Section 14.05.
Section 14.06.
Section 14.07.
Section 14.08.
Section 14.09.
Section 14.10.
Section 14.11.
TABLE OF CONTENTS
Page
ARTICLE XIV
SERIES C BONDS
Definitions ............................................................................................................. 3
Authorization and Issuance of Series C Bonds ..................................................... 4
Terms of Series C Bonds ...................................................................................... 4
Form of Series C Bonds ........................................................................................ 6
Book-Entry Series C Bonds ................... , .............................................................. 6
Application of Proceeds of the Series C Bonds .................................................... 8
Program Fund ...................................... : ................................................................. 8
Redemption of Series C Bonds ............................................................................. 8
Series C Tax Covenants ...................................................................................... 10
Series C Continuing Disclosure .......................................................................... 11
Sale of Group Two Bonds; Sale of Property ...................................................... 11
Section 14.12. Insurer (Series C) To Be Deemed Owner; Rights of the Insurer (Series C);
Payments by the Insurer (Series C); Notices ................................................................... 11
Section 14.13. Deposits to Policy Payments Account (Series C); Payments Under the
Insurance Policy (Series C) ............... , .............................................................................. 12
Section 14.14.
Section 14.15.
Section 14.16.
Section 14.17.
Section 14.18.
Notices to Rating Agencies ................................................................................. 14
References to Insurer and Insurance Policy ........................................................ 14
Effect of Second Supplemental Indenture .......................................................... 15
Execution in Several Counterparts ...................................................................... 15
Effective Date of Second Supplemental Indenture ............................................. 15
Exhibit C Form of Series C Bond
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-i-
SECOND SUPPLEMENTAL INDENTURE OF TRUST
THIS SECOND SUPPLEMENTAL INDENTURE OF TRUST (this "Second
Supplemental Indenture")dated as of , 1998, is by and between the TUSTIN
PUBLIC FINANCING AUTHORITY, a joint exercise of powers authority organized and
existing under and by virtue of the laws of the State of California (the "Authority"), and STATE
STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., a national banking
association organized and existing under and by virtue of the laws of the United States of
America, as trustee (the "Trustee").
WITNESSETH:
WHEREAS, the Authority is a joint exercise of powers authority duly organized and
existing under the provisions of ArtiCles 1 through 4 (commencing with Section 6500) of
Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the "Act"),
and is authorized pursuant to Article 4 of the Act (the "Bond Law") to borrow money for the
purpose of financing the acquisition of bonds, notes and other obligations to provide financing or
refinancing for public capital improvements of local agencies within the State of California;
WHEREAS, pursuant to the Indenture of Trust, dated as of February 1, 1996 (the
"Original Indenture"), by and between the Authority and the Trustee, the Authority issued its
Revenue Bonds (Tustin Ranch), Series A (the "Series A Bonds") in the aggregate principal
amount of $35,705,000;
WHEREAS, the proceeds of the Series A Bonds were used to purchase $35,705,000
aggregate principal amount of City of Tustin Limited Obligation Improvement Bonds,
Reassessment District No. 95-1 (Tustin Ranch);
WHEREAS, the Original Indenture provides that, in order to provide the funds required
to acquire certain other fixed rate assessment bonds of the City of Tustin (the "City"), in addition
to the Series A Bonds, the Authority may, subject to the requirements of the Bond Law, by
Supplemental Indenture establish one or more Series of Bonds payable from Revenues on a
parity with the Series A Bonds and secured by a lien upon and pledge of Revenues equal to the
lien and pledge securing the Series A Bonds, and that the Authority may issue and the Trustee
may authenticate and deliver Bonds of any Series so established, in such principal amount as
shall be determined by the Authority in said Supplemental Indenture, but only upon compliance
by the Authority with the provisions of the Original Indenture;
WHEREAS, pursuant to the Original Indenture, as amended and supplemented by the
First Supplemental Indenture of Trust, dated as of November 1, 1997, by and between the
Authority and the Trustee (as so amended and supplemented the "First Amended Indenture"), the
Authority issued its Revenue Bonds (Tustin Ranch), Series B (the "Series B Bonds") in
aggregate principal amount of $3,300,000, the proceeds of which were used to purchase
$3,300,000 aggregate principal amount of City of Tustin Limited Obligation Improvement
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Bonds, Reassessment District No. 95-2 (Tustin Ranch), Fixed Rate Bonds, Group One
(capitalized undefined terms shall have the meanings ascribed thereto in the First Amended
Indenture);
WHEREAS, in order to refinance certain public capital improvements, the City of Tustin
(the "City") is issuing not to exceed $ of its Limited Obligation Improvement Bonds,
Reassessment District No. 95-2 (Tustin Ranch), Fixed Rate Bonds, Group Two (the "Group Two
Bonds");
WHEREAS, the Authority desires to assist the City with the Group Two Bonds
refinancing by purchasing the Group Two Bonds from the City;
WHEREAS, in order to provide for the authentication and delivery of the Series C
Bonds, to establish and declare the terms and conditions upon which the Series C Bonds are to be
issued and to secure the payment of the principal thereof and interest thereon, the Authority has
authorized the execution and delivery of this Second Supplemental Indenture; and
WHEREAS, the Authority has determined that all acts and proceedings required by law
necessary to make the Series C Bonds, when executed by the Authority, authenticated and
delivered by the Trustee, and duly issued, the valid, binding and legal special obligations of the
Authority, and to constitute this Second Supplemental Indenture a valid and binding agreement
for the uses and purposes herein set forth in accordance with its terms, have been done and taken,
and the execution and delivery of this Second Supplemental Indenture have been in all respects
duly authorized;
NOW, THEREFORE, in consideration of the covenants and provisions herein set forth
and for other valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto do hereby agree that the First Amended Indenture is hereby
amended by adding thereto an additional Article as follows:
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ARTICLE XIII
SERIES C BONDS
Section 14.01. Definitions. Unless the context otherwise requires, the terms defined in
this Section, for all purposes of this Indenture and of any indenture supplemental hereto and of
any certificate, opinion or other document herein mentioned, have the meanings herein specified,
to be equally applicable to both the singular and plural forms of any of the terms herein defined.
"Book-Entry Bonds (Series C)" means the Series C Bonds registered in the name of the
nominee of DTC (Series C), or any successor securities depository for the Series C Bonds, as the
registered owner thereof pursuant to the terms and provisions of Section 14.05.
"Cede & Co. (Series C)" means Cede & Co., the nominee of DTC (Series C), and any
successor nominee of DTC (Series C) with respect to the Series C Bonds.
"Closing Date (Series C)" means the date on which the Series C Bonds are delivered to
the Original Purchaser (Series C), being ., 1998.
"Code (Series C)" means the Internal Revenue Code of 1986.
"Continuing Disclosure Agreement (Series C)" means the Continuing Disclosure
Agreement, dated as of ., 1998, by and between the City and the Trustee, as
originally executed or as the same may from time to time be amended in accordance with the
terms thereof.
"DTC (Series C)' means The Depository Trust Company, a limited-purpose trust
company organized under the laws of the State of New York, and its successors as securities
depository for the Series C Bonds, including any such successor appointed pursuant to Section
14.05.
"Second Supplemental Indenture" means the Second Supplemental Indenture of Trust,
dated as of ,1998, by and between the Authority and the Trustee.
"Group Two Bonds" means the City of Tustin Limited Obligation Improvement Bonds, .
Reassessment District No. 95-2 (Tustin Ranch): Fixed Rate Bonds, Group Two, which are issued
under and pursuant to the Fiscal Agent Agreement (95-2) and which bear interest at a fixed rate.
"Insurance Policy (Series C)" means the Municipal BOnd Insurance Policy, and any
Endorsement thereto, issued by the Insurer (Series C) guaranteeing the scheduled payment of the
principal of and interest on the Series C Bonds.
"Insurer (Series C)" means Financial Security Assurance Inc., a New York stock
insurance company, or any successor thereto.
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"Insurer's Fiscal Agent (Series C)" means a fiscal agent appointed by the Insurer
(Series C) for purposes of, and in accordance with the terms contained in, the Insurance Policy
(Series C).
"Original Purchaser (Series C)" means PaineWebber Incorporated, as the original
purchaser of the Series C Bonds.
"Participant (Series C)" means any entity which is recognized as a participant by DTC
(Series C) in the book-entry system of maintaining records with respect to Book-Entry Bonds
(Series C).
"Participating Underwriter (Series C)" has the meaning ascribed thereto in the
Continuing Disclosure Agreement (Series C).
"Purchase Agreement (Group Two),' means the Bond Purchase Agreement, dated as of
., 1998, by and between the City and the Authority, relating to the acquisition by the
Authority of the Group Two Bonds.
"Rebate Requirement (Series C)" has the meaning ascribed to Rebate Requirement in
the Tax Certificate (Series C).
"Series C Bonds" means the Tustin Public Financing Authority Revenue Bonds (Tustin
Ranch), Series C, issued hereunder.
"Tax Certificate (Series C)" means the Tax Certificate executed by the Authority and
the City at the time of issuance of the Series C Bonds relating to the requirements of Section 148
of the Code (Series C), as originally executed and as it may from time to time be amended in
accordance with the provisions thereof.
Section 1.4.02. Authorization and Issuance of Series C Bonds. The Series C Bonds
shall be designated as the "Tustin Public Financing Authority Revenue Bonds (Tustin Ranch),
Series C", and shall be secured and payable from the Revenues and other assets pledged
hereunder, as provided herein. The aggregate principal amount of Series C Bonds that may be
issued and Outstanding under this Indenture shall not exceed $ , except as may be
otherwise provided in Section 2.08. On the Closing Date (Series C), the Authority shall execute
and the Trustee shall authenticate the Series C Bonds and deliver the Series C Bonds to the
Original Purchaser (Series C) in the aggregate principal amount of $
Section 14.03. Terms of Series C Bonds. (a) The Series C Bonds shall be issued in
fully registered form without coupons in denominations of $5,000 or any integral multiple
thereof, so long as no Series C Bond shall have more than one maturity date. The Series C
Bonds shall be dated as of ,1998, shall mature on September 2 in each of the years
and.in the amounts, and shall bear interest (calculated on the basis of a 360-day year comprised
of twelve 30-day months) at the rates, as follows:
DOCSLA 1:258243.3
42081-4-TH6-08/10/98
Maturity P ri nc i pal I ntere st
(September 2) Amount Rate
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2012
2013
$
(b) The Interest Payment Dates for the Series C Bonds shall commence on ,
199 . Interest on the Series C Bonds shall be payable from the Interest Payment Date next
prec~ing the date of authentication thereof unless (i) a Series C Bond is authenticated on or
before an Interest Payment Date and after the close of business on the preceding Record Date, in
which event it shall bear interest from such Interest Payment Date, (ii) a Series C Bond is
authenticated on or before the first Record Date therefor, in which event interest thereon shall be
payable from ,1998, or (iii) interest on any Series C Bond is in default as of the date of
aUthentication thereof, in which event interest thereon shall be payable from the date to which
interest has been paid in full, payable on each Interest Payment Date. Interest shall be paid on
each Interest Payment Date to the Persons in whose names the ownership of the Series C Bonds
is registered on the Registration Books at the close of business on the immediately preceding
Record Date, except as provided below. Interest on any Series C Bond which is not punctually
paid or duly provided for on .any Interest Payment Date shall be payable to the Person in whose
name the ownership of such Series C Bond is registered on the Registration Books at the close of
business on a special Record Date to be established by the Trustee for the payment of such
defaulted interest to be fixed by the Trustee, notice of which shall be given to such Owner not
less than ten days prior to such special Record Date. Interest shall be paid by check of the
Trustee mailed by first class mail, postage prepaid, on each Interest Payment Date to the Series C
Bond Owners at their respective addresses shown on the Registration Books as of the close of
business on the preceding Record Date.
(c) The principal of and premium, if any, on the Series C Bonds shall be payable in
lawful money of the United States of America upon presentation and surrender thereof at the
Office of the Trustee. Payment of principal of and premium, if any, on any Series C Bond shall
be made only upon presentation and surrender of such Series C Bond at the Office of the Trustee.
(d) The Series C Bonds shall be initially issued registered in the name of "Cede &
Co.,' as nominee of the Depository Trust Company, New York, New York, and shall be
evidenced by one Series C Bond maturing on each maturity date, to be in denomination
DOCSLA 1:258243.3
42081-4-TH6-08/10/98.
corresponding to the total principal designated to mature on such date. Registered ownership of
the Series C Bonds, or any portion thereof, may not thereafter be transferred except as set forth in
Section 14.05.
(e) The Series C Bonds shall be subject to redemption as provided in Section 14.08.
Section 14.04. Form of Series C Bonds. The Series C Bonds shall be in substantially
the form set forth in Exhibit C hereto, with appropriate or necessary insertions, omissions and
variations as permitted or required hereby. Only such of the Bonds as shall bear thereon a
certificate of authentication substantially in the form set forth in Exhibit C hereto, manually
executed by the Trustee, shall be valid or obligatory for any purpose or entitled to the benefits of
this Indenture, and such certificate of or on behalf of the Trustee shall be conclusive evidence
that the Bonds so authenticated have been duly executed, authenticated and delivered hereunder
and are entitled to the benefits of this Indenture.
Section 14.05. Book-Entry Series C Bonds. (a) Except as provided in subparagraph
(c) of this Section, the registered Owner of all of the Series C Bonds shall be DTC (Series C) and
the Series C Bonds shall be registered in the'name of Cede & Co. (Series C), as nominee for
DTC (Series C). Notwithstanding anything to the contrary contained in this Indenture, payment
of interest with respect to any Series C Bond registered as of each Record Date in the name of
Cede & Co. (Series C) shall be made by wire transfer of same-day funds to the account of Cede
& Co. (Series C) on the payment date for the Series C Bonds at the address indicated on the
record date or special record date for Cede & Co. (Series C) in the Registration Books or as
otherwise provided in the Representation Letter.
(b) The Series C Bonds shall be initially issued in the form of separate single fully
registered Series C Bonds in the amount of each separate stated maturity of the Series C Bonds.
Upon initial issuance, the ownership of such Series C Bonds 'shall be registered in the
Registration Books in the name of Cede & Co. (Series C), as nominee of DTC (Series C). The
Trustee and the Authority may treat DTC (Series C) (or its nominee) as to the sole and exclusive
Owner of the Series C Bonds registered in its name for the purposes of payment of the principal,
Redemption Price or interest with respect to the Series C Bonds, selecting the Series C Bonds or
portions thereof to be redeemed, giving any notice permitted or required to be given to Owners
of Series C Bonds under this Indenture, registering the transfer of Series C Bonds, obtaining any
consent or other action to be taken by Owners of Series C Bonds and for all other purposes
whatsoever, and~ neither the Trustee nor the Authority shall be affect'ed by any notice to the
contrary. Neither the Trustee nor the Authority shall have any responsibility or obligation to any
Participant (Series C), any person claiming a beneficial ownership interest in the Series C Bonds
under or through DTC (Series C) or any Participant (Series C), or any other person which is not
shown on the Registration Books as being an Owner, with respect to the accuracy of any records
maintained by DTC (Series C) or any Participant (Series C); the payment by DTC (Series C) or
any Participant (Series C) of any amount in respect of the principal, Redemption Price or interest
with respect to the Series C Bonds; any notice which is permitted or required to be given to
Owners of Series C Bonds under this Indenture; the selection by DTC (Series C) or any
Participant (Series C) of any person to receive payment in the event of a partial redemption of the
DOCSI.A ! :258243.3
42081-4-TH6-08/10/98
Series C Bonds; or any consent given or other action taken by DTC (Series C) as Owner of
Series C Bonds. The Trustee shall pay all principal, premium, if any, and interest with respect to
the Series C Bonds, only to DTC (Series C), and all such payments shall be valid and effective to
fully satisfy and discharge the Authority's obligations with respect to the principal, premium, if
any, and interest with respect to the Series C Bonds to the extent of the sum or sums so paid.
Except under the conditions of (c) below, no person other than DTC (Series C) shall receive an
executed Series C Bond for each separate stated maturity. Upon delivery by DTC (Series C) to
the Trustee of written notice to the effect that DTC (Series C) has determined to substitute a new
nominee in place of Cede & Co. (Series C), and subject to the provisions herein with respect to
record dates, the term "Cede & Co. (Series C)" in this Indenture shall refer to such new nominee
of DTC (Series C).
(c) In the event (i) DTC (Series C), including any successor as securities depository
for the Series C Bonds, determines not to continue to act as securities depository for the Series C
Bonds, or (ii)the Authority determines that the incumbent securities depository shall no longer
so act, and delivers a written certificate to the Trustee to that effect, then the Authority will
discontinue the book-entry system with the incumbent securities depository for the Series C
Bonds. If the Authority determines to replace the incumbent securities depository for the Series
C Bonds with another qualified securities depository, the Authority shall prepare or direct the
preparation of a new single, separate fully registered Series C Bond for the aggregate
Outstanding principal amount of Series C Bonds of each maturity, registered in the name of such
successor or substitute qualified securities depository, or its nominee, or make such other
arrangement acceptable to the Authority, the Trustee and the successor securities depository for
the Series C Bonds as are not inconsistent with the terms of this Indenture. If the Authority fails
to identify another qualified successor securities depository of the Series C Bonds to replace the
incumbent securities depository, then the Series C Bonds shall no longer be restricted to being
registered in the Registration Books in the name of the incumbent securities depository or its
nominee, but shall be registered in whatever name or names the incumbent securities depository
for the Series C Bonds, or its nominee, shall designate. In such event the Trustee shall
authenticate and deliver a sufficient quantity of Series C Bonds as to carry out the transfers and
exchanges provided in Sections 2.05, 2.07 and 2.08. All such Series C Bonds shall be in fully
registered form in denominations authorized by this Indenture.
(d) Notwithstanding any other provision of this Indenture to the contrary, so long as
any Series C Bond is registered in the name of DTC (Series C), or its nominee, all payments with
respect to the principal, premium, if any, and interest with respect to such Series C Bond and all
notices with respect to such Series C Bond shall be made and given, respectively, as provided in
the Representation Letter.
(e) In connection with any notice or other communication to be provided to Owners
of Book-Entry Bonds (Series C) pursuant to this Indenture by the Authority or the Trustee with
respect to any consent or other action to be ~aken by Owners, the Authority or the Trustee, as the
case may be, shall establish a record date for such consent or other action and give DTC (Series
C) notice of such record date not less than 15 calendar days in advance of such record date to the
extent possible.
DOCSLA 1:258243.3
42081-4-TIt6-08/10/98
Section 14.06. Application of Proceeds of the Series C Bonds. On the Closing Date
(Series C), the amount of $ .w, constituting the proceeds of sale of the Series C Bonds,
shall be deposited in the Program Fund.
Section 14.07. Program Fund. On the Closing Date (Series C) there shall be deposited
in the Program Fund the amount specified in Section 14.06. On the Closing Date (Series C), the
Trustee shall withdraw from the Program Fund the amount of $ . and apply such
amount to the purchase on such date of the Group Two Bonds, all pursuant t0-~nd in accordance
with the provisions of the Purchase Agreement (Group Two). In accordance with the Purchase
Agreement (Group Two), the ownership of the Group Two Bonds shall be registered to the
Trustee upon the acquisition thereof.
Section 14.08. Redemption of Series C Bonds. (a) Optional Redemption. The Series
C Bonds maturing on or after September 2, 20w shall be subject to optional redemption in
whole, or in part in authorized denominations, among maturities on such basis as shall be
designated by the Authority in a Written Certificate of the Authority filed with the Trustee, on
any Interest Payment Date on or after September 2, 20~, at the following respective Redemption
Prices (expressed as percentages of the principal amount of the Series C Bonds to be redeemed),
plus accrued interest thereon to the date of redemption:
Redemption Dates
Redemption Price
The provisions of this subsection (a) shall not be applicable to circumstances under which
the Series C Bonds are subject to mandatory redemption pursuant to the following subsection (b)
of this Section.
(b) Mandatory Redemption From Principal Prepayments. The Series C Bonds shall
be subject to mandatory redemption, in whole, or in part in authorized denominations, on any
Interest Payment Date, from and to the extent of any Principal Prepayments with respect to the
Group Two Bonds, at the following respective Redemption Prices (expressed as percentages of
the principal amount of the Series C Bonds to be redeemed), plus accrued interest thereon to the
date of redemption:
Redemption Dates
Redemption Price
The principal amount of Series C Bonds to be redeemed pursuant to this subsection (b)
from any Principal Prepayments shall be the greatest principal amount of Series C Bonds, the
Redemption Price of which is less than or equal to such Principal Prepayments, as specified in a
Written Request of the Authority dellvered to the Trustee. In the event that the Fiscal Agent (95-
2) shall mail notice of the redemption of any Group Two Bonds which will produce Principal
Prepayments, the Trustee shall concurrently mail notice of the redemption of Series C Bonds
pursuant to this subsection (b), such redemption to occur on the date fixed for such redemption of
the Group Two Bonds. The proceeds of any such redemption of the Group Two Bonds shall be
IX)CSLA 1:258243.3
42081-4-TH6-08/1 (I/98
applied by the Trustee to pay the Redemption Price of Series C Bonds pursuant to this subsection
(b) on the date of such redemption of the Group Two Bonds.
For purposes of the selection of Series C Bonds for redemption pursuant to this
subsection (b), the Series C Bonds shall be selected for redemption among maturities by the
Authority (evidenced pursuant to a Written Certificate of the Authority delivered to the Trustee
at least 60 days prior to the redemption date or such later date as shall be acceptable to the
Trustee) on such basis that the remaining payments of principal of and interest on the Group Two
Bonds, together with other available Revenues attributable thereto, will be sufficient on a timely
basis to pay debt service on the Series C Bonds, as shall be demonstrated in a report of an
Independent Financial Consultant filed with the Trustee.
(c) Mandatory Sinking Fund Redemption. The Series C Bonds maturing on
September 2, shall be subject to mandatory sinking fund redemption, in part, on September
2 in each year, commencing September 2, , at a Redemption Price equal to the principal
amount of the Series C Bonds to be redeemed, without premium, plus accrued interest thereon to
the date of redemption, in the aggregate respective principal amounts in the respective years as
follows:
Sinking Fund
Redemption Date
(September 2)
Principal Amount
to be
Redeemed
$
$
$
If some but not all of the Series C Bonds maturing on September 2, ~ are redeemed
pursuant to Section 14.08(a), the principal amount of Series C Bonds maturing on September 2,
to be redeemed pursuant to Section 14.08(c) on any subsequent September 2 shall be
'reduced, by $5,000 or an integral multiple thereof, as designated by the Authority in a Written
Certificate of the Authority filed with the Trustee; provided, however, that the aggregate amount
of such reductions shall not exceed the aggregate amount of Series C Bonds maturing on
September 2, ~ redeemed pursuant to Section 14.08(a). If some but not all of the Series C
Bonds maturing on September 2, ~ are redeemed pursuant to Section 14.08(b), the principal
amount of Series C Bonds maturing on September 2, ~ to be subsequently redeemed pursuant
to Section 14.08(c) shall be reduced by the aggregate principal amount of the Series C Bonds
maturing on September 2, ~ so redeemed pursuant to Section 14.08(b), such reduction to be
allocated as nearly as practicable on a pro rata basis in amounts of $5,000 or integral multiples
thereof, as determined by the Authority, notice of which determination shall be given by the
Authority to the Trustee at least 45 days prior to such redemption date.
The Series C Bonds maturing on September 2, 2013 shall be subject to mandatory
sinking fund redemption, in pan, on September 2 in ,__ and 2013, at a Redemption Price
equal to the principal amount of the Series C Bonds to be redeemed, without premium, plus
IX)CSI.A 1:258243.3
42081-4-Tit6-08/10/98
accrued interest thereon to the date of redemption, in the aggregate respective principal amounts
in the respective years as follows:
Sinking Fund
Redemption Date
(September 2)
Principal Amount
to be
Redeemed
2013 (Maturity)
If some but not all of the Series C Bonds maturing on September 2, 2013 are redeemed
pursuant to Section 14.08(a), the principal amount of Series C Bonds maturing on September 2,
2013 to be redeemed pursuant to Section 14.08(c) on any subsequent September 2 shall be
reduced, by $5,000 or an integral multiple thereof, as designated by the Authority in a Written
Certificate of the Authority filed with the Trustee; provided, however, that the aggregate amount
of such reductions shall not exceed the aggregate amount of Series C Bonds maturing on
September 2, 2013 redeemed pursuant to Section 14.08(a). If some but not all of the Series C
Bonds maturing on September 2, 2013 are redeemed pursuant to Section 14.08(b), the principal
amount of Series C Bonds maturing on September 2, 2013 to be subsequently redeemed pursuant
to Section 14.08(c) shall be reduced by the aggregate principal amount of the Series C Bonds
maturing on September 2, 2013 so redeemed pursuant to Section 14.08(b), such reduction to be
allocated as nearly as practicable on a pro rata basis in amounts of $5,000 or integral multiples
thereof, as determined by the Authority, notice of which determination shall be given by the
Authority to the Trustee at least 45 days prior to such redemption date.
Section 14.09. Series C Tax Covenants. (a) The Authority shall not take any action, or
fail to take any action, if such action or failure to take suCh action would adversely affect the
exclusion from gross income of interest on the Series C Bonds under Section 103 of the Code
(Series C). Without limiting the generality of the foregoing, the Authority shall comply with the
requirements of the Tax Certificate (Series C), which is incorporated herein as if fully set forth
herein. This covenant shall survive payment in full or defeasance of the Series C Bonds.
(b) In the event that at any time the Authority is of the opinion that for purposes of
this Section it is necessary or helpful to restrict or limit the yield on the investment of any
moneys held by the Trustee in any of the funds or accounts established hereunder, the Authority
shall so instruct the Trustee in writing, and the Trustee shall take such action as may be necessary
in accordance with such instructions.
(c) Notwithstanding any provisions of this Section, if the Authority shall provide to
the Trustee an opinion of Bond Counsel to the effect that any specified action required under this
Section is no longer required or that some further or different action is required to maintain the
exclusion from federal income tax of interest on the Series C Bonds, the Trustee may
conclusively rely on such opinion in complying with the requirements of this Section and of the
Tax Certificate (Series C), and the covenants hereunder shall be deemed to be modified to that
extent.
DOCSI.A 1:258243.3
42081-4-'FH6-08/10/98
10
Section 1.4.10. Series C Continuing Disclosure. Pursuant to the Continuing Disclosure
Agreement (Series C), the City has undertaken all responsibility for compliance with continuing
disclOsure requirements with respect to the Series C Bonds, and the Authority shall have no
liability to the holders of the Series C Bonds or any other person with respect to such disclosure
matters. The Trustee hereby covenants and agrees that it will comply with and carry out all of
the provisions of the Continuing Disclosure Agreement (Series C). Notwithstanding any other
provision of this Indenture, failure of the City or the Trustee to comply with the Continuing
Disclosure Agreement (Series C) shall not be considered an Event of Default, however, the
Trustee may (and, at the written direction of any Participating Underwriter (Series C) or the
holders of at least 25%'aggregate principal amount of Outstanding Series C Bonds, shall) or any
holder or beneficial owner of the Series C Bonds may take such actions as may be necessary and
appropriate to compel performance, including seeking mandate or specific performance by court
order.
Section 14.11. Sale of Group Two iBonds; Sale of Proper_ty. The Authority shall not
sell any Group Two Bond without the consent of the Insurer (Series C). The Authority shall not,
without the consent of the Insurer (Series C), give its consent, pursuant to Section 8836 of the
Act, to the sale at a lesser minimum price or without a minimum price of any property upon
which are levied assessments securing the Group Two Bonds.
Section 14.12. Insurer (Series C) To Be Deemed Owner; Rights of the Insurer
(Series C); Payments bv the Insurer (Series C); Notices. (a) Notwithstanding any provision of
this Indenture to the contrary, so long as the Insurer (Series C) is not in default in its payment
obligations under the Insurance Policy (Series C), the Insurer (Series C) shall at all times be
deemed the sole and exclusive Owner of the Outstanding Series C Bonds for the purposes of all
approvals, consents, waivers, institution of any action, and the direction of all remedies,
including but not limited to approval of or consent to any Supplemental Indenture which requires
the consent or approval of the Owners of a majority of the aggregate principal amount of Bonds
then Outstanding pursuant to this Indenture; provided that the Insurer (Series C) shall not be
deemed to be the sole and exclusive Owner of the Outstanding Series C Bonds with respect to
any Supplemental Indenture which seeks to amend or supplement this Indenture for the purposes
set forth in clause (i) of the first paragraph of Section 9.01(a), and provided further that the
Insurer (Series C) shall not be deemed the sole and exclusive Owner of the Outstanding Series C
Bonds with respect to any Supplemental Indenture, and shall not have the right to direct or
consent to Authority, Trustee or Owner action as provided herein, if:
(i) the Insurer (Series C) shall be in payment default under the Insurance
Policy (Series C);
(ii) any material provision of the Insurance Policy (Series C) shall be held to be
invalid by a final, non-appealable order-of a court of competent jurisdiction, or the
validity or enforceability thereof shall be contested by the Insurer (Series C); or
(iii) a proceeding shall have been instituted in a court having jurisdiction in the
premises seeking an order for relief, rehabilitation, reorganization, conservation,
DOCSLA 1:258243.3
42081-4-TH6-08/10/98
11
liquidation or dissolution in respect of the Insurer (Series C) under Article 16 of lhe
Insurance Law of the State of New York or any successor provision thereto and such
proceeding is not terminated for a period of 90 consecutive days or such court enters an
order granting the relief sought in such proceeding.
(b) To the extent that the Insurer (Series C) makes payment of principal of or interest
on a Series C Bond, it shall become the Owner of such portion of such Series C Bond and the
right to receive payment of such principal or interest, and shall be fully subrogated to all of the
Owner's rights thereunder in accordance with the terms of the Insurance Policy (Series C) to the
extent of such payment, including the Owner's rights to payment thereof.
(c) In the event that the principal of or interest on a Series C Bond shall be paid by
the Insurer (Series C) pursuant to the terms of the Insurance Policy (Series C), (i) such Series C
Bond shall continue to be "outstanding" under the Indenture, (ii)the pledge of the amounts on
depoSit in the funds and accounts established hereunder and of the Revenues and all covenants,
agreements and other obligations of the Authority hereunder shall continue to exist, (iii)the
Insurer (Series C) shall be fully subrogated to all of the rights of such Owner in accordance with
the terms and conditions of subparagraph (b) above and the Insurance Policy (Series C), and (iv)
the Indenture shall not be discharged unless and until all amounts due to the .Insurer (Series C)
have been paid in full.
(d) If an Event of Default shall have occUrred and be continuing, the Insurer (Series
C) may, regardless of whether a claim has been made under the Insurance Policy (Series C), at
any time and at its sole option, pay tothe Owners of the Series C Bonds all or any portion of the
principal of or interest on such Series C Bonds (at a price equal to 100% of the par amount
thereof) prior to the stated maturity dates thereof; provided, however, that such payment by the
Insurer (Series C) shall not accelerate the Authority's obligation to pay principal of or interest on
such Series C Bonds. The Trustee shall accept such payments on behalf of the Owners of the
Series C Bonds and the obligations of the Insurer (Series C) under the Insurance Policy (Series
C) shall be discharged to the extent of such payments.
(e) The Insurer (Series C) shall be notified by the Trustee (i) within one Business Day
of the Trustee's having ~knowledge of the occurrence of any Event of Default, and (ii) of any
redemption of Series C Bonds (including the principal amount and CUSIP numbers of such
Series C Bonds to be redeemed) at the same time that the Owners of the Series C Bonds to be
redeemed are notified. In addition, all notices, reports, certificates and opinions to be delivered
to or by the Trustee or to the Owners or available at the request of the Owners pursuant to this
Indenture shall also be delivered to the Insurer (Series C).
(f) The Trustee shall also notify the Insurer (Series C) immediately upon the
resignation or removal of the Trustee or the appointment of a successor Trustee..
Section 14.13. Deposits to Policy Payments Account (Series C); Payments Under the
Insurance Policy (Series C). (a) So long as the. Insurance Policy (Series C) shall be in full force
and effect, the Authority and the Trustee hereby agree to comply with the provisions of this
Section.
12
DOCSLA ! :258243.3
42081-4-TH6-08/10/98
(b) If, on the third Business Day prior to an Interest Payment Date, maturity date or
redemption date, the Trustee determines that there will be insufficient funds in the funds and
accounts established hereunder available to pay the principal of or interest on the Series C Bonds
on such Interest Payment Date, maturity date or redemptiOn date, the Trustee shall give notice to
the Insurer (Series C) and to the Insurer's Fiscal Agent (Series C) (if any) by telephone or
telecopy of the amount of such deficiency by 12 noon New York City time on such Business
Day. If, on the second Business Day prior to such Interest Payment Date, maturity date or
redemption date, there continues to be a deficiency in the amount available to pay the principal
of or interest on the Series C Bonds due on such Interest Payment Date, maturity date or
redemption date, the TruStee shall make a claim under the Insurance Policy (Series C) and give
notice to the Insurer (Series C) and the Insurer's Fiscal Agent (Series C) (if any) by telephone of
the amount of such deficiency, and the allocation of such deficiency among the amount required
to pay the principal of or interest on the Series C Bonds, confirmed in writing to the Insurer
(Series C) and the Insurer's Fiscal Agent (Series C) (if any) by 12 noon, New York City time, on
such second Business Day.
The Trustee shall establish and maintain a separate special purpose trust account for the
benefit of Owners of the Series C Bonds known as the Policy Payments Account (Series C) and
over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee
shall deposit any amount paid under the Insurance Policy (Series C) in the Policy Payments
Account (Series C) and distribute such amount only for purposes of making the payments for
which a claim was made. Such amounts shall be received by the Trustee in trust for the Owners
of the Series C Bonds. Such amounts shall be disbursed by the Trustee to Owners of the Series
C Bonds in the same manner as payments of principal of and interest on the Series C Bonds are
to be made under the provisions hereof regarding payment of Bonds. It shall not be necessary for
such payments to be made by checks or wire transfers separate from the check or wire transfer
used to pay principal of and interest on the Series C Bonds with other funds available to make
such payments. Funds held in the Policy Payments Account (Series C) shall not be invested by
the Trustee and may not be applied to satisfy any costs, expenses or liabilities of the Trustee.
(c) Funds received by the Trustee as a result of any claim under the Insurance Policy
(Series C) shall be deposited by the Trustee in the Policy Payments Account (Series C) and used
solely for payment to the Owners of Series C Bonds and may not be applied to satisfy any costs,
expenses or liabilities of the Trustee. Any funds remaining in the Policy Payments Account
(Series C) following an Interest Payment Date, maturity date .or redemption date, as applicable,
shall promptly be remitted to the Insurer (Series C), except for funds held for the payment of
Series C Bonds which have matured or been called for redemption but which have not been
surrendered for payment.
(d) The rights granted under this Indenture and the Fiscal Agent Agreement (95-2) to
the Insurer (Series C) to request, consent to or direct any action are rights granted to the Insurer
(Series C) in consideration of its issuance of the Insurance Policy (Series C). Any exercise by
the Insurer (Series C) of such rights is merely an exercise of the contractual rights of the Insurer
(Series C) and shall not be construed or deemed to be taken for the benefit of or on behalf of the
DOCSI.A 1:258243.3
42081-4-TH6-08/l 0/98
13
Owners, nor does such action evidence any position of the Insurer (Series C), positive or
negative, as to whether Owner consent is required in addition to consent of the Insurer (Series C).
(e) The Authority hereby agrees, to the extent permitted by law, to pay or reimburse
the Insurer (Series C) any and all charges, fees, costs and expenses which the Insurer (Series C)
may reasonably pay or incur, including, but not limited to, fees and expenses of attorneys,
accountants, consultants and auditors and reasonable costs of investigations, in connection with
(i) the administration, enforcement, defense or preservation of any rights in respect of any of this
Indenture and the Fiscal Agent Agreement (95-2), (ii) the pursuit of any remedies under this
Indenture or the Fiscal Agent Agreement (95-2) or otherwise afforded by law or equity, (iii) any
amendment, waiver or other action with respect to, or related to this Indenture or the Fiscal
Agent Agreement (95-2) whether or not executed or completed, (iv) the violation by the
Authority or the City of any law, rule or regulation, or any judgment, order or decree applicable
to it, or (v) any litigation or other dispute in connection with this Indenture or the Fiscal Agent
Agreement (95-2) or the transactions contemplated thereby, other than amounts resulting from
the failure of the Insurer to honor its obligations under the Insurance Policy (Series C). The
Insurer (Series C) reserves the right to charge a reasonable fee as a condition to executing any
amendment, waiver or consent proposed in respect of the Indenture or the Fiscal Agent
Agreement (95-2).
(f) The Insurer (Series C) shall be entitled to pay principal of and interest on the
Series C Bonds that shall become Due for Payment but shall be unpaid by reason of Nonpayment
by the Authority (as such terms are defined in the Insurance Policy (Series C)) thereof in
accordance with this Indenture, whether or not the Insurer (Series C) has received a Notice (as
defined in the Insurance Policy (Series C)) of Nonpayment or a claim upon the Insurance Policy
(Series C).
(g) The Trustee shall promptly notify the Insurer (Series C) of either of the following
as to which it has actual knowledge: (i) the commencement of any proceeding by or against, the
Authority or the City commenced under the United States Bankruptcy Code or any successor
statute or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law
(an "Insolvency Proceeding"), and (ii) the making of any claim in connection with any
Insolvency Proceeding seeking the avoidance as a preferential transfer (a "Preference Claim") of
any payment of principal of or interest on the Series C Bonds.
Section 14.14. Notices to Rating Agencies. The Trustee shall provide Moody's, if the
Series C Bonds are then rated by Moody's, and S&P, if the Series C Bonds are then rated by
S&P, with written notice of any material amendments to the Indenture or the Fiscal Agent
Agreement (95-2) at least ten days prior to the effective date thereof.
Section 14.15. References to Insurer and Insurance Policy. The references to the
Insurer contained in the Indenture in Section 1.01 (in the definition of "Moody's" and in the
definition of "S&P"), in Section 7.01 (c), in Section 7.04(c), in Section 8.01 (b), in Section 9.01,
in Section 10.01(e), in Section 11.03, in Section 12.03, in Section 12.07 and in Section 12.12
shall, from and after the effective date of the Second Supplemental Indenture, be deemed to be
DOCSLA ! :258243.3
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references to the Insurer, the Insurer (Series B) and the Insurer (Series C). The reference to the
Insurance Policy contained in the Indenture in Section 10.01 (e) shall, from and after the effective
date of the Second Supplemental Indenture, be deemed to be a reference to the Insurance Policy,
the Insurance Policy (Series B) and the Insurance Policy (Series C).
Section 1.4.1.6. Effect of Second Supplemental Indenture. This Second Supplemental
Indenture and all of the terms and provisions herein contained shall form part of the Indenture as
fully and with the same effect as if all such terms and provisions had been set forth in the
Indenture. The Indenture .is hereby'ratified and confirmed and shall continue in full force and
effect in accordance with the terms and provisions thereof, as heretofore amended and
supplemented, and as amended and supplemented hereby. If there shall be any conflict between
the terms of this Second Supplemental Indenture and the terms of the Indenture (as in effect on
the day prior to the effective date of this Second Supplemental Indenture), the terms of this
Second Supplemental Indenture shall prevail.
Section 14.17. Execution in Several Counterparts. This Second Supplemental
Indenture may be executed in any number of counterparts and each of such counterparts shall for
all purposes be deemed to be an original; and all such counterparts, or as many of them as the
Authority and the Trustee shall preserve undestroyed, shall together constitute but one and the
same instrument.
Section 14.18. Effective Date of Second Supplemental Indenture.
Supplemental Indenture shall take effect upon the Closing Date (Series C).
This Second
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15
IN WITNESS WHEREOF, the Authority has caused this Second Supplemental
Indenture to be' signed in its name by its officer thereunto duly authorized, and the Trustee has
caused this Second Supplemental Indenture to be signed in its corporate name by its officer
thereunto duly authorized, all as of the day and year first above written.
TUSTIN PUBLIC FINANCING AUTHORITY
By:
G. W. Jeffries
Treasurer
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A., as Trustee
By:
Authorized Officer
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16
EXHIBIT C
FORM OF SERIES C BOND
No.
TUSTIN PUBLIC FINANCING AUTHORITY
REVENUE BOND
(TUSTIN RANCH),
SERIES C
RATE OF INTEREST:
MATURITY DATE:
ORIGINAL ISSUE DATE:
., 1998
CUSIP:
REGISTERED OWNER:
PRINCIPAL AMOUNT:
The TUSTIN PUBLIC FINANCING AUTHORITY, a joint powers authority organized
and existing under the laws of the State of California (the "Authority"), for value received,
hereby promises to pay (but only out of the Revenues and other moneys and securities
hereinafter referred to) to the Registered Owner identified above or registered assigns (the
"Registered Owner"), on the Maturity Date identified above or on any earlier redemption date,
the Principal Amount identified above in lawful money of the United States of America; and to
pay interest thereon at the Rate of Interest identified above in like lawful money from the date
hereof, which date shall be the Interest Payment Date (as hereinafter defined) next preceding the
date of authentication of this Bond (unless this Bond is authenticated on or before an Interest
Payment Date and after the fifteenth calendar day of the month preceding such Interest Payment
Date, in which event it shall bear interest from such Interest Payment Date, or unless this Bond is
authenticated on or prior to , 1998, in which event it shall bear interest from the
Original Issue Date identified above; provided, however, that if, at the time of authentication of
this Bond, interest is in default on this Bond, this Bond shall bear interest from the Interest
Payment Date to which interest hereon has previously been paid or made available for payment),
payable semiannually on March 2 and September 2 in each year, commencing ,199_
IX)CS I.A 1 .,_.,8_43.3
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(the "Interest Payment Dates"), until payment of such Principal Amount in full. The Principal
Amount hereof is payable upon surrender hereof upon maturity or earlier redemption at the
principal corporate trust office (the "Trust Office") of State Street Bank and Trust Company of
California, N.A., as trustee (the "Trustee"), in Los Angeles, California. Interest hereon is
payable by check of the Trustee mailed by first class mail on each Interest Payment Date to the
Registered Owner hereof at the address of the Registered Owner as it appears on the Registration
Books of the Trustee as of the close of business on the fifteenth calendar day of the month
preceding such Interest Payment Date.
This Bond is one of a duly authorized issue of bonds of the Authority designated the
"Tustin Public Financing Authority Revenue Bonds (Tustin Ranch), Series C" (the "Series C
Bonds"), limited in principal amount to $ , secured by the Indenture of Trust, dated
as of February 1, 1996, by and between the Authority and the Trustee, as amended and
supplemented by the First Supplemental Indenture of Trust, dated as of November 1, 1997, and
the Second Supplemental Indenture of Trust, dated as of ., 1998, by and between the
Authority and the Trustee (as so amended and supplemented, the "Indenture"). The Authority has
previously issued its Tustin Public Financing Authority Revenue Bonds (Tustin Ranch), Series A
(the "Series A Bonds"), with which the Series C Bonds are on parity. The Authority may issue
additional bonds on a parity with the Series A Bonds and the Series C Bonds, in accordance with
the terms of, and upon satisfaction of the conditions contained in, the Indenture; the Series A
Bonds and the Series C Bonds, together with any such additional bonds, are referred to as the
"Bonds". Reference is hereby made to the Indenture and all indentures supplemental thereto for a
description of the rights thereunder of the owners of the Bonds, of the nature and extent of the
Revenues (as that term is defined in the Indenture), of the rights, duties and immunities of the
Trustee and of the rights and obligations of the Authority thereunder; and all of the terms of the
Indenture are hereby incorporated herein and constitute a contract between the Authority and the
Registered Owner hereof, and to all of the provisions of which Indenture the Registered Owner
hereof, by acceptance hereof, assents and agrees.
The Bonds are authorized to be issued pursuant to the provisions of the Marks-Roos
Local Bond Pooling Act of 1985, constituting Article 4 (commencing with Section 6584) of
Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the "Bond
Law"). The Bonds are special obligations of the Authority and, as and to the extent set forth in
the Indenture, .are payable solely from and secured by a first lien on and pledge of the Revenues
and certain assets held by the Trustee as provided in the Indenture. All of the Bonds are equally
secured by a pledge of, and lien upon, all of the Revenues and such assets, and the Revenues and
such assets constitute a trust fund for the security and payment of the principal of and interest on
the Bonds. The full faith and credit of the Authority is not pledged for the payment of the
principal of or interest or redemption premiums, if any, on the Bonds. The Bonds are not secured
by a legal or equitable pledge of, or charge, lien or encumbrance upon, any of the property of the
Authority or any of its income or receipts, except the Revenues and such assets as provided in the
Indenture.
The Bonds have been issued to provide a portion of the funds to acquire certain
assessment bonds (the "Assessment Bonds") issued by the City of Tustin, a municipal
DOCSLA 1:258243.3
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C-2
corporation organized and existing under the laws of the State of California (the "City"). The
Revenues which secure the Bonds and from which the Bonds are payable consist primarily of
amounts derived from the Assessment Bonds, as more fully set forth in the Indenture. The Series
C Bonds have been issued to provide a portion of the funds to acquire certain Assessment Bonds
designated the City of Tustin Limited Obligation Improvement Bonds, Reassessment District
No. 95-2 (Tustin Ranch), Fixed Rate Bonds, Group Two (the "Group Two Bonds").
The Series C Bonds maturing on or after September 2, , are subject to optional
redemption in whole, or in part on such basis among maturities as shall be designated by the
Authority and by lot within a maturity, on any Interest Payment Date on or after September 2,
, at. the following respective redemption prices (expressed as percentages of the principal
amount of the Series C Bonds to be redeemed), plus accrued interest thereon to the date of
redemption:
Redemption Dates
Redemption Price
The Series C Bonds shall be subject to mandatory redemption, in whole, or in part on any
Interest Payment Date, from and to the extent of any prepayment of reassessments securing the
Group Two Bonds, which prepayment results in a redemption of Group Two Bonds, as more
particularly set forth in the Indenture, at the following respective redemption prices (expressed as
percentages of the principal amount of the Series C Bonds to be redeemed), plus accrued interest
thereon to the date of redemption.
Redemption Dates
Redemption Price
The Series C Bonds maturing on September 2, 20__ shall be subject to mandatory
sinking fund redemption, in part, by lot, on September 2 in 20__, 20__ and 20__, at a redemption
price equal to the principal amount of the Series C Bonds to be redeemed, without premium, plus
accrued interest thereon to the date of redemption, in the aggregate respective principal amounts
specified in the Indenture.
The Series C Bonds maturing on September 2, 2013 shall be subject to mandatory
sinking fund redemption, in part, by lot, on September 2 in each year, commencing September 2,
20 , at a redemption price equal to'the principal amount of the Series C Bonds to be redeemed,
with--out premium, plus accrued interest thereon to the date of redemption, in the aggregate
respective principal amounts specified in the Indenture.
The Trustee on behalf and at the expense of the Authority shall mail (by first class mail)
notice of any redemption to the respective owners of any Series C Bonds designated for
redemption, at their respective addresses appearing on the Registration Books maintained by the
Trustee, at least 30 but not more than 60 days prior to the redemption date; provided, however,
that neither failure to receive any such notice so mailed nor any defect therein shall affect the
validity of the proceedings for the redemption of such Series C Bonds or the cessation of the
DOCSI.A 1:258243.3
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C-3
accrual of interest thereon. The redemption price of the Series C Bonds to be redeemed shall be
paid only upon presentation and surrender thereof at the Trust Office of the Trustee. From and
after the date fixed for redemption of any Bonds, interest on such Bonds will cease to accrue.
The Series C Bonds are issuable as fully registered Bonds without coupons 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 Indenture, fully registered Series C Bonds may be
exchanged at the Trust Office of the Trustee for a like aggregate principal amount and maturity
of fully registered Series C Bonds of other authorized denominations.
This Bond is transferable by the Registered Owner hereof, in person or by his attorney
duly authorized in writing, at the Trust Office of the Trustee, but only in the manner, subject to
the limitations and upon payment of the charges provided in the Indenture, and upon surrender
and cancellation of this Bond. Upon such transfer a new fully registered Series C Bond or Series
C Bonds, of authorized denomination or denominations, for the same aggregate principal amount
and of the same maturity will be issued to the transferee in exchange herefor. The Authority and
the Trustee may treat the Registered Owner hereof as the absolute owner hereof for all purposes,
and the Authority and the Trustee shall not be affected by any notice to the contrary.
The Indenture and the rights and obligations of the Authority and of the owners 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 Indenture; provided that no such
modification or amendment shall (a) extend the maturity of or reduce the interest rate on any
Bond or the amount of principal thereof without the express written consent of the owner of such
Bond, (b) reduce the percentage of Bonds required for the written consent to any such
amendment or modification, or (c) permit the creation of any lien on the Revenues and other
assets pledged under the Indenture, or deprive the Bonds owners of the lien created under the
Indenture on the Revenues and such other assets, without the consent of the owners of all
outstanding Bonds.
It is hereby certified that all things, conditions 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 required by the
Constitution and statutes of the State of California and by the Bond Law and the amount of this
Bond, together with all other indebtedness of the Authority, does not exceed any limit prescribed
by the Constitution or statutes of the State of California or by the Bond Law.
This Bond shall not be entitled to any benefit under the Indenture or become valid or
obligatory for any purpose, until the certificate of authentication hereon shall have been manually
signed by the Trustee.
Unless this Bond is presented by an authorized representative of The Depository Trust
Company to the Trustee for regiStration, transfer, exchange or payment, and any Bond issued is
registered in the name of Cede & Co. or such other name as requested by an authorized
representative of The Depository Trust Company and any payment is made to Cede & Co., ANY
C-4
DOCSLA 1:258243.3
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TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
IN WITNESS WHEREOF, the Authority has caused this Bond to be executed in its name
and on its behalf by the facsimile signatures of its Chairman and Secretary all as of the Original
Issue Date identified above.
TUSTIN PUBLIC FINANCING
AUTHORITY
By:
Chairman
[SEAL]
Attest:
By:
Secretary
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C-5
STATEMENT OF INSURANCE
Financial Security Assurance Inc. ("Financial Security"), New York, New York, has delivered its
municipal bond insurance policy with respect to the scheduled payments due of principal of and
interest on this BOnd to the Trustee, or its successor, as trustee for the Series C Bonds. Said
policy is on file and aVailable for inspection at the Office of the Trustee and a copy thereof may
be obtained from Financial Security or the Trustee.
D(K'S LA 1:258243.3
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Series C Bonds described in the within-mentioned Indenture and
registered on the Registration Books.
Date:
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A., as
Trustee
By:
Authorized Signatory
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ASSIGNMENT
For value received the undersigned hereby sells, assigns and transfers unto
whose address and social security or other tax
identifying r~umber is ., the within-mentioned Bond and hereby
irrevocably constitute(s) and appoint(s) attorney, to
transfer the same on the registration books of the Trustee with full power of substitution in the
premises.
Dated:
Signature Guaranteed:
Note: Signature(s) must be guaranteed by an eligible
guarantor.
Note: The signature(s) on this Assignment must
correspond with the name(s) as written on the face of
the within Bond in every particular without alteration or
enlargement or any change whatsoever.
DOCSLA 1:258243.3
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C-8
TUSTIN PUBLIC FINANCING AUTHORITY
REVENUE BONDS
(TUSTIN RANCH)
SERIES C
BOND PURCHASE AGREEMENT
,1998
Tustin Public Financing Authority
c/o City of Tustin
300 Centennial Way
Tustin, Califomia 92680
Ladies and Gentlemen:
PaineWebber Incorporated (the "Underwriter") offers to enter into this Bond
Purchase Contract (this "Purchase Agreement'') with the Tustin Public Financing Authority (the
"Authority") with regard to the purchase and sale of the Bonds described herein, which will be
binding upon the Authority and the Underwriter upon the Authority's acceptance hereof. All
capitalized terms not otherwise defined herein shall have the meanings prescribed in the
Indenture (defined below).
1. Purchase, Sale and Delivery of the Bonds.
(a) Upon the terms and conditions and upon the basis of the
representations, warranties and agreements hereinafter set forth, including the simultaneous
purchase of certain limited obligation bonds (the "Local Obligations") of Reassessment District
No. 95-2 (the "District") of the City of Tustin (the "City"), the Underwriter hereby agrees to
purchase from the Authority and the Authority agrees to sell to the Underwriter all (but not less
than all) of the Authority's $ aggregate principal amount of Revenue Bonds (Tustin
Ranch), Series C (the "Bonds"), at the aggregate purchase Price of $ (being the principal
amount of the Bonds less an Underwriter's discount of $ and less Original issue discount
of $ ). The Bonds will have the maturities and shall bear interest as set forth in Exhibit A
hereto. The Bonds will be subject to redemption and such other terms as set forth in the
Indenture of Trust, dated as of February 1, 1996 (the "Original Indenture"), as amended and
supplemented by a First Supplemental Indenture of Trust, dated as of November 1, 1997 (the
"First Supplemental Indenture"), and a Second Supplemental Indenture of Trust, dated as of
, 1998 (the "Second Supplemental Indenture") (the Original Indenture, as amended
and supplemented by the First Supplemental Indenture and the Second Supplemental Indenture,
the "Indenture"), each by and between the Authority and State Street Bank and Trust Company
of California, N.A., as trustee (the "Trustee"), and shall be issued in book-entry only form.
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(b) The Bonds shall be issued and secured under the provisions of the
Indenture, and shall be as described in the Indenture. Pursuant to a Resolution of the Authority
adopted on , 1998 (the "Bond Resolution"), the Authority has authorized (i) the
issuance of the Bonds, (ii) the execution and delivery of the First Supplemental Indenture, this
Purchase Agreement, a Purchase Agreement by and between the City and the Authority (the
"Local Obligation Purchase Agreement," and together with the Bonds, the Second Supplemental
Indenture and this Purchase Agreement, the "Authority Documents") and the Official Statement
(as defined below) and (iii) the use of the Preliminary Official Statement of the City and the
Authority dated . , 1998, relating to the Bonds together with all appendices thereto
(the "Preliminary Official Statement") and the Official Statement in connection with the offering
and sale of the Bonds.
The Local Obligation Bonds shall be issued and secured under the provisions of
the Fiscal Agent Agreement, dated as of February 1, 1996 (the "Original Fiscal Agent
Agreement"), as amended and supplemented by a First Supplemental Fiscal Agent Agreement,
dated as of September 1, 1996 (the "First Supplemental Fiscal Agent Agreement"), a Second
Supplemental Fiscal Agent Agreement, dated as of November 1, 1997 (the "Second
Supplemental Fiscal Agent Agreement"), and a Third Supplemental Fiscal Agent Agreement,
dated as of ., 1998 (the "Third Supplemental Fiscal Agent Agreement") (the Original
Fiscal Agent Agreement, as amended and supplemented by the First Supplemental Fiscal Agent
Agreement, the Second Supplemental Fiscal Agent Agreement and the Third Supplemental
Fiscal Agent Agreement, the "Fiscal Agent Agreement"), each by and between the City and State
Street Bank and Trust of California, N.A., as fiscal agent (the "Fiscal Agent"), and shall be as
described in the Fiscal Agent Agreement. Pursuant to a Resolution of the City adopted on
, 1998 (the "City Bond Resolution"), the City has authorized (i) the issuance of the
Local Obligations, and (ii) the execution and delivery of' the Third Supplemental Fiscal Agent
Agreement, the Local Obligation Purchase Agreement and a Continuing Disclosure Agreement
by and between the City and the Fiscal Agent (the "Continuing Disclosure Agreement") (the
Fiscal Agent Agreement, the Local Obligation Purchase Agreement and the Continuing
Disclosure Agreement are hereinafter referred to as the "City Documents"). The Local
Obligations will be secured by reassessments levied on the .property within the District. In
connection with the establishment of the District and the reassessments imposed in connection
therewith, the City adopted a resolution of intention to form the District and a resolution
approving an engineer's report and confirming the reassessments .(the "Procedural Resolutions").
The City Bond Resolution and the Procedural Resolutions are herein collectively referred to as
the City Resolutions.
The proceeds of the Bonds shall be applied to acquire the LOcal Obligations. The
proceeds of the Local Obligations shall be applied (i) to establish the Reserve Account (as
defined and described in the Fiscal Agent Agreement), (ii) pay the costs of issuance of the Local
Obligations and (iii) to purchase and cancel $ principal amount of the City's Limited
Obligation Improvement Bonds, Reassessment District No. 95-2 (Tustin Ranch), Series A (the
"Prior Bonds") pursuant to the Indenture.
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-2-
(c) The Underwriter agrees to offer all the Bonds to the public initially
at the prices (or yields) set forth in Exhibit A hereto and on the cover page of the Official
Statement of the Authority pertaining to the Bonds, dated , 1998 (the Official
Statement, derived from the Preliminary Official Statement, together with all appendices thereto,
and with such supplements thereto as are consented to in writing by the Authority and the
Underwriter, is herein called the "Official Statement"). Subsequent to the initial public offering
of the Bonds, the Underwriter reserves the right to change the public offering prices (or yields) as
it deems necessary in connection with the marketing of the Bonds. The Bonds may be offered
and sold to certain dealers at prices lower than such initial public offering prices.
(d) The Authority shall deliver to the Underwriter six (6) copies of the
Official Statement manually executed on behalf of the Authority by the Chairman. The
Authority shall also deliver a sufficient number of copies of the Official Statement to enable the
Underwriter to distribute a single copy of each Official Statement to any potential customer of
the Underwriter requesting an Official Statement during the time period beginning when the
Official Statement becomes available and ending on the End Date (defined below). The
Authority shall deliver these copies to the Underwriter within seven (7) business days after the
execution of this Purchase Agreement. The Underwriter covenants to file the Official Statement
with a nationally recognized municipal securities information repository ("NRMSIR") on a
timely basis. The term "End Date" means the later of such time as (i) the Authority delivers the
Bonds to the Underwriter or (ii) the Underwriter does not retain an unsold balance of the Bonds
for sale to the public. Unless the Underwriter gives notice to the contrary, the End Date shall be
deemed the Closing Date.
An authorized officer of the Authority and of the City have certified to the
Underwriter on behalf of the Authority and the City that such Preliminary Official Statement was
deemed to be final as of its date for purposes of Rule 15c2-12, with the exception of certain final
pricing and related information referred to in Rule 15c2-12. The Underwriter has distributed a
single copy of each Preliminary Official Statement to potential customers on request.
(e) At : A.M., Califomia time, on , 1998, or at such
other time or on such earlier or later business day as shall have been mutually agreed upon by the
Authority and the Underwriter (the "Closing Date"), the Authority will deliver (i) the Bonds to
The Depository Trust Company ("DTC") in New York, New York, and (ii) the closing
documents hereinafter mentioned at the offices of Orrick, Herrington & Sutcliffe LLP ("Bond
Counsel"), or such other place to be mutually agreed upon by the Authority and the Underwriter.
Subject to the provisions of this Purchase Agreement, the Underwriter will accept such delivery
from the Authority. The Underwriter will pay the purchase price of the Bonds as set forth in
Section l(a) hereof by wire transfer of immediately available funds. The date of this payment
and delivery, together with the delivery of the aforementioned documents, is herein called the
"Closing Date."
2. Representations, Warranties and Agreements of the Authority.
Authority hereby represents and warrants to and agrees with the Underwriter that:
The
DOCSLA 1:258244.1
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-3-
(a) The Authority is a joint powers authority, duly organized and
existing under the laws of the State, including the Joint Exercise of Powers Act (Section 6500 et
seq. of the California Government Code) (the "JPA Act");
(b) The Authority has, and at the Closing Date will have, full legal
right, power and authority (i) to execute, deliver and perform its obligations under the Authority
Documents, (ii) to adopt the Bond Resolution, (iii) to issue, sell and deliver the Bonds to the
Underwriter as provided herein, and (iv) to carry out, give effect to and consummate the
transactions contemplated by the Authority Documents, the Bond Resolution and the Official
Statement;
(c) The Authority is, and at the Closing Date will be, in compliance, in
all respects, with the Authority Documents;
(d) The Authority has duly and validly adopted the Bond Resolution
and approved the execution and delivery of the Bonds and the Authority Documents, and the
performance by the Authority of its obligations contained therein, and the taking of any and all
action as may be necessary to carry out, give effect to and consummate the transactions
contemplated by each of said documents. The Authority Documents and the Bonds have been,
or on or before the Closing Date will be, duly executed and delivered by the Authority, and, on
the Closing Date, the Bonds, when authenticated and delivered to the Underwriter in accordance
with the Indenture, and the Authority Documents will constitute legally valid and binding
obligations, enforceable against the Authority in accordance with their respective terms, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, or
similar laws or equitable principles relating to Or limiting creditors' rights generally;
(e) The Authority is not, and at the Closing Date will not be, in breach
of or in default under any applicable law or. administrative rule or regulation of the State of
California (the "State") or the United States of America, or of any department, division, agency
or instrumentality of either thereof, or under any applicable court or administrative decree or
order, or under any loan agreement, note, resolution, indenture, contract, agreement or other
instrument to which the Authority is a party or is otherwise subject or bound, a consequence of
which could be to materially and adversely affect the ability of the Authority to perform its
obligations under the Bonds or the Authority Documents;
(f) The adoption of the Bond Resolution and the execution and
delivery of the Bonds and the Authority Documents and compliance with the provisions thereof
will not conflict with or constitute a breach of or default under any applicable law or
administrative rule or regulation of the State of California or the United States of America, or of
any department, division, agency or instrumentality of either thereof, or under any applicable
court or administrative decree or order, or under any loan agreement, note, resolution, indenture,
contract, agreement or other instrument to which the Authority is a party or is otherwise subject
or bound, a consequence of which could be to materially and adversely affect the ability of the
Authority to perform its obligations under the Bonds or the Authority Documents;
DOCSLA 1:258244. l
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-4-
(g) Except as may be required under the blue sky laws of any state, all
approvals, consents, authorizations, elections and orders of or filings or registrations with any
governmental authority, board, agency or commission having jurisdiction which would constitute
conditions precedent to, or the absence of which would materially adversely affect, the ability of
the Authority to perform its obligations under any of the Authority Documents, or under the
Bonds, or any other applicable agreements, have been obtained and are in full force and effect;
(h) The Bonds, the Indenture and the Bond Resolution conform as to
form and tenor to the descriptions thereof contained in the Preliminary Official Statement, and
which will be contained in the Official Statement as of the Closing Date, and when delivered to
and paid for by the Underwriter on the Closing Date as provided herein, the Bonds will be
validly issued and outstanding;
(i) The Preliminary Official Statement provided to the Underwriter
has been deemed final by the Authority, as required by Rule 15c2-12. As of the date thereof, the
Preliminary Official Statement (other than information with respect to the Developer, as to which
the Authority shall not be required to express any view) did not contain any untrue statement of a
material fact or. omit a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading; the
Official Statement (other than information with respect to the Developer, as to which the
Authority shall not be required to express any view) does not, as of the Closing Date, and will
not contain any untrue or misleading statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading;
(j) Until the date which is 25 days after the End Date, if any event
shall occur of which the Authority is aware, as a result of which it may be necessary to
supplement the Official Statement in order to make the statements contained in the Official
Statement, in light of the circumstances existing at such time, not misleading, the Authority shall
forthwith notify the Underwriter of any such event of which it has knowledge and shall cooperate
fully in furnishing any information available to it for any supplement to the Official Statement
necessary, as required by subparagraph (i) of this Paragraph 2;
(k) After the Closing and until the date which is 25 days after the End
Date (i) the Authority will not adopt any amendment of or supplement to the Official Statement
to which the Underwriter shall object in writing or which shall be disapproved by counsel for the
Underwriter, and (ii) if any event relating to or affecting the Authority shall occur as a result of
which it is necessary, in the opinion of counsel for the Underwriter, to amend or supplement the
Official Statement in order to make the Official Statement not misleading in the light of the
circumstances existing at the time it is delivered to an initial purchaser of the Bonds, the
Authority will forthwith prepare and furnish to the Underwriter a reasonable number of copies of
an amendment of or supplement to the Official Statement (in form and substance satisfactory to
counsel for the Underwriter) which will amend or supplement the OffiCial Statement so that it
will not contain an untrue statement of a material fact necessary in order to make the statements
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therein, in the light of the circumstances existing at the time the Official Statement is delivered to
an initial purchaser of the Bonds, not miSleading. The costs of preparing any necessary
amendment or supplement to the Official Statement shall be borne by the Authority or the City.
For the purposes of this section the Authority will furnish such information with respect to itself
as the Underwriter may from time to time request;
(1) The Indenture will create a valid pledge of lien upon and security
interest in the Local Obligations and the interest thereon and the moneys in all funds and
accounts established therein, subject in all cases to the provisions permitting the application
thereof for the purposes and on the terms and conditions set forth therein;
(m) No action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, regulatory agency, public board or body is pending, or to the
knowledge of the Authority threatened in any way, affecting the existence of the Authority or the
titles of its officers to their respective offices or seeking to restrain or to enjoin the issuance, sale
or delivery of the Bonds, the application of the proceeds thereof, or the purchase of the Local
Obligations pledged or to be pledged to paY the principal of and interest in the Bonds, or in any
way contesting or affecting the validity or enforceability of the Bond Resolution, the Bonds or
the Authority Documents, or any action of the Authority contemplated by any of said documents,
or in any way contesting the completeness or accuracy of the Preliminary Official Statement or
the Official Statement or the powers of the Authority or its authority with respect to the Bond
Resolution, the Bonds or the Authority Documents, or any action of the Authority contemplated
by any of said documents, or which would adversely affect the exemption of interest paid on the
Bonds from federal income taxation or California personal income taxation, nor to the
knowledge of the Authority is there any basis therefor;
(n) The Authority will furnish such information, execute such
instruments and take such other action in cooperation with the Underwriter as the Underwriter
may reasonably request in order for the Underwriter to qualify the Bonds for offer and sale under
the "blue sky" or other securities laws and regulations of such states and other jurisdictions of the
United States as the Underwriter may designate; provided, however, the Authority shall not be
required to register as a dealer or a broker of securities or consent to the jurisdiction of any State
of the United States, other than the State of California;
(o) Any certificate signed by any authorized official of the Authority
authorized to do so shall be deemed a representation and warranty by the Authority to the
Underwriter as to the statements made therein;
(p) During the period from the date hereof until the Closing Date, the
Authority agrees to furnish the Underwriter with copies of any documents it files with any
regulatory authority which are requested by the Underwriter;
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(q) The Authority is not in default, nor has the Authority been in.
default at any time, as to the payment of principal or interest with respect to an obligation issued
by the Authority or with respect to an obligation guaranteed by the Authority as guarantor;
(r) The Authority has not been notified of any listing or proposed
listing by the Internal Revenue Service to the effect that the Authority is a bond issuer whose
arbitrage certificates may not be relied upon; and
(s) The Authority will apply the proceeds from the sale of the Bonds
as set forth in and for the purposes specified in the Indenture.
3. Conditions to the Obligations of the Underwriter.
The obligations of the Underwriter to accept delivery of and pay for the Bonds on
the Closing Date shall be subject, at the option of the Underwriter, to the accuracy in all material
respects of the representations and warranties on the part of the Authority contained herein, as of
the date' hereof and as of the Closing Date, to the accuracy in all material respects of the
statements of the officers and other officials of the Authority and other persons and entities made
in any certificates or other documents furnished pursuant to the provisions hereof, to the
performance by the Authority of its obligations to be performed hereunder at or prior to the
Closing Date and to the following additional conditions:
(a) At the Closing Date, the Authority Documents, the City
Documents, the Authority Bond Resolution and the City Resolutions and any other applicable
agreements shall be in full force and effect, and shall not have been amended, modified or
supplemented, except aS may have been agreed to in writing by the Underwriter, and there shall
have been taken in connection therewith, with the issuance of the Bonds and the Local
Obligations and with the transactions contemplated thereby, all such actions as, in the opinion of
Bond Counsel, shall be necessary and appropriate;
(b) At the Closing Date, the Official Statement shall be in form and
substance satisfactory to the Underwriter, the Authority and the City;
(c) At the time of the Closing Date, the reassessments for the Local
Obligations shall have been approved and confirmed by the City and recorded in the office of the
Orange County Recorder;
(d) Between the date hereof and the Closing Date, the market price or
marketability of the Bonds at the initial offering prices shall not have been materially adversely
affected, in the judgment of the Underwriter (evidenced by a written notice to the Authority
terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by
reason of any of the following:
(i) legislation introduced in or enacted (or resolution passed)
by the Congress of the United States of America or recommended to the Congress by the
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President of the United States, the Department of the Treasury, the Internal Revenue Service, or
any member of Congress, or favorably reported for passage to either House of Congress by any
committee of such House to which 'such legislation has been referred for consideration, or a
decision rendered by a court established under Article III of the Constitution of the United States
of America or by the Tax Court of the United States of America, or an order, ruling, regulation
(final, temporary or proposed), press release or other form of notice issued or made by or on
behalf of the Treasury Department or the Internal Revenue Service of the United States of
America, with the purpose Or effect, directly or indirectly, of imposing federal income taxation
upon the interest as would be received by the holders of the Bonds or the Local Obligations;
(ii) legislation introduced in or enacted (or resolution passed)
by the Congress of the United States of America, or an order, decree or injunction issued by any
court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed),
press release or other form of notice issued or made by or on behalf of the Securities and
Exchange Commission, or any other governmental agency having jurisdiction of the subject
matter, to the effect that the Bonds or the Local Obligations, obligations of the general character
of the Bonds or the Local Obligations, including any or all underlying arrangements, are not
exempt from registration under or other requirements of the Securities Act of 1933, as amended,
or that the Indenture is not exempt from qualification under or other requirements of the Trust
Indenture Act of 1939, as amended, or that the issuance, offering or sale of the Bonds or the
Local Obligations or of obligations of the general character of the Bonds or the LOcal
Obligations, including any or all underwriting arrangements, as contemplated hereby or by the
Official Statement or otherwise, is or would be in violation of the federal securities laws as
amended and then in effect;
(iii) a general suspension of trading in securities on the New
York Stock Exchange, or a general banking moratorium declared by Federal, State of New York
or State of California officials authorized to do so;
(iv) the withdrawal or downgrading of any rating of any
securities of the Authority or the City by a national rating agency;
(v) any amendment to the federal or California Constitution or
action by any federal or California court, legislative body, regulatory body or other authority
materially adversely affecting the tax status of Authority or the City, the property, income or
securities (or interest thereon) of either, the validity or enforceability of the reassessments or the
ability of the Authority to issue the Bonds or the City to issue the Local Obligations as
contemplated by the Indenture, the Fiscal Agent Agreement and the Official Statement;
(vi) the entry of an order by a court of competent jurisdiction
which enjoins or restrains the City from issuing permits, licenses or entitlements within the City,
which order, in the reasonable opinion of the Underwriter, materially and adversely affects
proposed developments within the District in particular or the City in general;
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(vii) any legislation, ordinance, rule or regulation shall be
introduced in, or be enacted by any governmental body, department or agency of the State or a
decision by any court of competent jurisdiction within the State or any court of the United States
shall be rendered which, in the reasonable opinion of the Underwriter, materially adversely
affects the market price of the Bonds;
(viii) additional material restrictions not in force as of the date
hereof shall have been imposed upon trading in securities generally by any governmental
authority or by any national securities exchange which restrictions materially adversely affect the
Underwriter's ability to market the Bonds; or
(ix) the United States has become engaged in hostilities which
have resulted in a declaration of war or a national emergency or there has occurred any other
outbreak or escalation of hostilities or a national or international calamity or crisis, financial or
otherwise, the effect of such outbreak, calamity or crisis on the financial markets of the United
States, being such as, in the reasonable opinion of the Underwriter, would affect materially and
adversely the ability of the Underwriter to market the Bonds.
(e) On or prior to the Closing Date, the Underwriter shali have
received counterpart originals or certified copies of the following documents, in each case
satisfactory in form and substance to the Underwriter, or shall have waived the receipt of such
documents as a condition to the Underwriter's purchase of the Bonds:
(i)
the Official Statement, executed on behalf of the City and
the Authority;
(ii) fully executed copies of the City Documents, the Authority
Documents and the Representation Letter of the City, in the form attached hereto as Exhibit B
(the "Representation Letter") and certified copies of the Bond Resolution and the City
Resolutions;
(iii) an approving opinion of Bond Counsel dated the Closing
Date and substantially in the form included as APPENDIX B to the Official Statement, together
with a letter from such counsel, dated the Closing Date and addressed to the Underwriter, to the
effect that the foregoing opinion may be relied upon by the Underwriter to the same extent as if
such opinion were addressed to it;
(iv) a supplemental opinion of Bond Counsel, dated as of the
Closing Date and addressed to the Underwriter, in form and substance satisfactory to the
Underwriter and its counsel, to the effect that:
(A) the Authority Documents and the City Documents,
other than the Indenture which shall be covered in the opinion of Bond Counsel referred to in
Section 3(e)(iii), have been duly authorized, executed and .delivered by the City and 'the
Authority and constitute the legal, valid and binding obligations of each, are in full force and
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effect as of the Closing Date, and are enforceable in accordance with their respective terms,
except as enforcement thereof may be limited by bankruptcy, insolvency or other laws affecting
enforcement of creditors rights and by the application of equitable principles if equitable
remedies are sought;
(B) the statements contained in the Official Statement
on the cover page and under the captions "INTRODUCTION," "THE SERIES C BONDS,"
"SECURITY FOR THE SERIES C BONDS," "CONTINUING DISCLOSURE,"
"CONCLUDING INFORMATION - Tax Matters" and APPENDIX A-"SUMMARY OF
INDENTURE AND FISCAL AGENT AGREEMENTS," and insofar as such statements purport
to summarize certain provisions relating to the Bonds, the Local Obligations, the Indenture, the
Fiscal Agent Agreement and the Continuing Disclosure Agreement and such firm's opinions
regarding certain federal tax aspects are accurate in all material respects; provided that Bond
Counsel need not express any opinion with respect to any financial or statistical information
contained therein;
(C) neither the Bonds nor the Local Obligations are
subject to the registration requirements of the Securities Act of 1933, as amended, and neither the
Indenture nor the Fiscal Agent Agreement is exempt from qualification pursuant to the Trust
Indenture Act of 1939, as amended; and
(D) the Bonds were validly issued under the provisions
of the JPA Act and the Indenture, and the Local Obligations representing the unpaid
reassessments were validly issued under the proviSions of the Improvement Bond Act of 1915
(Sections 8500 and following, California Streets and Highways Code; hereafter referred to as the
"Act") and the Fiscal Agent Agreement.
(v) An opinion, dated as of the Closing Date and addressed to
the Underwriter, of Woodruff, Spradlin & Smart as City Attorney and counsel to the Authority,
in form and substance acceptable to the Underwriter and its counsel, to the effect that:
(A) the Authority is a joint powers authority, duly
organized and validly existing pursuant to the Constitution and the laws of the State of California
with full legal right, power and authority to adopt the Bond Resolution, to issue the Bonds and to
perform all of its obligations under the Bonds and the Authority Documents;
(B) the City is a general law city, duly organized and
validly existing pursuant to the Constitution and the laws of the State of California with full legal
right, power and authority to adopt the City Resolutions, to issue the Local Obligations and to
perform all of its obligations under the Local Obligations and the City Documents;
(C) the preparation and distribution of the Preliminary
Official Statement and the Official Statement and the execution and delivery of the Bonds and
the Authority Documents and the City Documents have been duly approved by the Authority and
the City, as the case may be;
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(D) the Bonds and the Authority Documents constitute
the legal, valid and binding obligations of the Authority enforceable against the Authority in
accordance with their respective terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights in general and to the
application of equitable principles if equitable remedies are sought;
(E) the Local Obligations and the City Documents
constitute the legal, valid and binding obligations of the City enforceable against the City in
accordance with their reSpective terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights in general and to the
application of equitable principles if equitable remedies are sought;
(F) to the best of such firm's knowledge, no action, suit,
proceeding, inquiry or investigation, at law or in equity, before or by any court, regulatory
agency, public board or body is pending or threatened in any way affecting the existence of the
City or the Authority or the titles of the officers of each to their respective offices, or seeking to
restrain or to enjoin the execution and delivery of the Authority Documents or the City
Documents, or the issuance, sale or delivery of the Local Obligations or the Bonds or the
application of the proceeds thereof, or the collection or application of the reassessments to pay
the principal of and interest on the Local Obligations, or in any way contesting or affecting the
validity or enforceability of the Local Obligations or the Bonds, this Purchase Agreement or any
other Authority Document or City Document or any action of the Authority or the City
contemplated by any of said documents;
(G) neither the Authority nor the City is in breach of or
in default under any applicable law or administrative rule or regulation of the State of California
or the United States of America, or of any department, division, agency or instrumentality of
either thereof, or Under any applicable court or administrative decree or order, or under any loan
agreement, note, resolution, indenture, contract, agreement or other instrument to which the
Authority or the City is a party or is otherwise subject or bound, a consequence of which could
be to materially and adversely affect the ability of the Authority or the City to perform their
obligations under the Bonds, the Authority Documents or the City Documents;
(H) the adoption of the Bond Resolution and the
Resolutions, and the execution and delivery of the Bonds, the Local Obligations and the
Authority Documents and City Documents and compliance with the provisions of each, will not
conflict with or constitute a breach of or default under any applicable law or administrative rule
or regulation of the State of California or the United States of America, or of any department,
division, agency or instrumentality of either thereof, or under any applicable court or
administrative decree or order, or under any loan agreement, note, ordinance, resolution,
indenture, contract, agreement or other instrument to which the Authority or the City, as the case
may be, is a party or is otherwise subject or bound, a consequence of which could be to
materially and adversely affect the ability of the Authority or the City to perform their obligation
under the Bonds or any Authority Documents or City Documents, as the case may be;
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(I) all approvals, consents, authorizations, elections and
orders of or filings or registrations with any governmental authority, board, agency or
commission having jurisdiction which would constitute a condition precedent to, or the absence
of which would materially adversely affect, the ability of the Authority to perform its obligations
under the Bonds or any Authority Document or the performance by the City of its obligations
under the Local Obligations or any City Document, have been obtained or made, as the case may
be, and are in full force and effect; and
(J) as of the Closing Date, the information contained in
the Official Statement (excluding therefrom statistical and financial data) is true and correct and
such information does not contain any untrue statement of a material fact required to be stated in
the Official Statement or omit to state any fact necessary to make the statements made therein, in
light of the circumstances under which they are made, not misleading in any material respect;
(vi) the opinion of Orrick, Herrington & Sutcliffe LLP,
Disclosure Counsel, dated the Closing Date, addressed to the Underwriter, to the effect that
based upon an examination which such firm has made, which shall be specified, and without
having undertaken to determine independently the accuracy or completeness of the statements
contained in the Official Statement, no information came to the attention of the attorneys in such
firm rendering legal services in connection with representation of the Underwriter which caused
them to believe that the Official Statement as of its date (except for any financial, statistical and
economic data or forecasts, numbers, charts, graphs, estimates, projections, assumptions or
expressions of opinion and any information about valuation or appraisals and any information
under the captions "THE SERIES C BONDS- Book Entry System- Debt Service Schedule,"
"BOND INSURANCE," "CONCLUDING INFORMATION- Tax Matters," APPENDIX D-
"INSURANCE POLICY SPECIMEN" and APPENDIX B -"PROPOSED FORM OF OPINION
OF BOND COUNSEL," or otherwise about book-entry, DTC or the Bond Insurer included
therein, as to which such firm shall not be required to express any opinion or view) contained any
untrue statement of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading in any material respect;
(vii) a certificate, dated as of the Closing Date and signed by a
duly authorized official of the City and the Authority, certifying that (i)the representations and
warranties of the Authority contained herein and the City contained in the City's Representation
Letter are true and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date; (ii)no event has occurred since the date of the Official
Statement affecting the City or the Authority which should be disclosed in the Official Statement
for the purposes for which it is to be used in order to make the statements and information
contained in the Official Statement not misleading in any material respect; and (iii) the Authority
has complied with all the agreements and has satisfied all the .conditions on its part to be
performed or satisfied under this Purchase Agreement at and prior to the Closing Date;
(viii) an appraisal of the District;
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(ix) the opinion of counsel to the Trustee, the Fiscal Agent and
State Street Bank and Trust ~Company of California, N.A., as dissemination agent (together,
"State Street"), dated the Closing Date, addressed to the Underwriter, in form and substance
acceptable to counsel for the Underwriter substantially to the following effect:
(A) State Street is a national banking association
organized and existing under and by virtue of the laws of the United States of America;
(B) State Street has duly authorized the execution and
delivery of the Indenture, the Fiscal Agent Agreement and the Continuing Disclosure Agreement
(the "State Street Documents");
(C) the State Street Documents have been duly entered
into and delivered by State Street and assuming due, valid and binding authorization, execution
and delivery by the other parties thereto, constitutes the legal, valid and binding obligations of
State Street, enforceable against State Street in accordance with their terms, except as the
enforceability thereof may be limited by applicable bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally, or by general principles of equity;
(D) acceptance by State Street of the duties and
obligations under the State Street Documents and compliance with provisions thereof will not
conflict with or constitute a breach of or default under any law or administrative regulation to
which State Street is subject;
(E) all approvals, consents and orders of any
governmental authority or agency having jurisdiction in the matter which would constitute a
· condition precedent to the performance by State Street of its duties and obligations under the
State Street Documents have been obtained and are in full force and effect;
(x) a certificate of State Street, dated the Closing Date,
addressed to the Underwriter, in form and substance acceptable to counsel for the Underwriter to
the following effect:
(A) State Street is a national banking association, and is
organized and existing under and by virtue of the laws of the United States of America, and has
the full power and authority to accept and perform its duties under the State Street Documents;
(B) subject to the provisions of the Indenture, the
Trustee will apply the proceeds from the Bonds to the purposes specified in the Indenture;
Trustee;
(c)
the Bonds have been duly authenticated on behalf of
(D) there is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, regulatory agency, public board or body
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is pending or, to the.best of its knowledge, threatened in any way affecting the existence of State
Street, or seeking to restrain or to enjoin the execution and delivery of the State Street
Documents, or the authentication of the Bonds, by State Street, or in any way contesting or
'affecting the validity or enforceability, as against State Street, of the State Street Documents or
any action of State Street contemplated by any of said documents, or in which an adverse
outcome would materially and adversely affect the ability of State Street to perform its
obligations under the State Street Documents;
(E) State Street is not in breach of or in default under
any applicable law or administrative rule or regulation of the State or the United States of
America, or of any department, division, agency or instrumentality of either thereof, or under any
applicable court or administrative decree or order, or under any loan agreement, note, resolution,
indenture, contract, agreement or other instrument to which State Street is a party or is otherwise
subject or bound, a consequence of which could be to materially and adversely affect the ability
of State Street to perform its obligations under the State Street Documents;
(F) the authentication of the Bonds, and the execution
and delivery of the State Street Documents by State Street, and compliance with the provisions
of each, will not conflict with or constitute a breach of or default under any applicable law or
administrative rule or regulation of the State or the United States of America, or of any
department, division, agency or instrumentality of either thereof, or under any applicable court or
administrative decree or order, or under any loan agreement, note, ordinance, resolution,
indenture, contract, agreement or other instrument to which State Street is a party or is otherwise
subject or bound, a consequence of which could be to materially and adversely affect the ability
of State Street to perform its obligations under the State Street Documents;
(G) within the scope of its fiduciary obligations under
the Indenture, the Trustee agrees to cooperate with the Underwriter and its counsel, at the
expense of the Underwriter, in endeavoring to qualify the Bonds for offering and sale under the
securities or blue sky laws of such jurisdictions of the United' States as the Underwriter' may
request; provided, however, that the Trustee will not be required to execute a special or general
consent to service of process or qualify as a foreign corporation in connection with any such
qualification in any jurisdiction in which it is not now so subject;
(xi) The no-arbitrage or tax certificate of the Authority in form
and substance acceptable to the Bond Counsel;
(xii) Evidence that the federal tax information Form 8038-G
with respect to the Bonds has been prepared for filing and mailed; and
(xiii) A certificate addressed to the Underwriter from The Irvine
Company to the effect that (1) the statements relating to it, its proposed development, its property
ownership and its contractual arrangements, if any, contained in the Official Statement do not
contain any untrue statement of a material fact or omit to state a material fact required to be
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stated therein or necessary to make the statements therein, in the light of the circumstances in
which they were made, not misleading; and (2)no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, regulatory agency, public board or
body, is pending or, to its knowledge, threatened in any way seeking to restrain or to enjoin the
development of any of its property securing the Bonds or the carrying on of its business affairs;
(xiv) An opinion of counsel to The Irvine Company, in form and
substance satisfactory to the Underwriter and its counsel; and
(xv) Such additional legal opinions, certificates, instruments and
other documents as the Underwriter may reasonably request to evidence the truth and accuracy,
as of the date hereof and as of the Closing Date, of the statements and information contained in
the Official Statement, of the Authority's representations and warranties contained herein and the
City's representations and warranties contained in the Representation Letter and the due
performance or satisfaction by the City and the Authority at or prior to the Closing Date of all
agreements then to be performed and all conditions then to be satisfied by the City and the
Authority in connection with the transactions contemplated hereby and by the Official Statement,
the City Documents and the Authority Documents.
If any of the conditions to the obligations of the Underwriter contained in this
section or elsewhere in this Purchase Agreement shall not have been satisfied when and as
required herein, all obligations of the Underwriter hereunder may be terminated by the
Underwriter at, or at any time prior to, the Closing Date by written notice to the Authority.
4. Expenses.
(a) The Underwriter shall be under no obligation to pay, and the
Authority shall pay or cause to be paid, whether out of the proceeds of the Bonds or otherwise,
all expenses incident to the performance of the Authority's and the City's obligations hereunder,
including but not limited to: the cost of printing and delivering the Bonds to the Underwriter and
the Local Obligations to the Authority; the cost of preparation, printing (and/or word processing
and reproduction), distribution and delivery of the Bond Resolution, the Resolutions, and the cost
of printing distribution and delivery of the Preliminary Official Statement and the Official
Statement and all other agreements and documents contemplated hereby (and drafts of any
thereof) in such reasonable quantities as requested by the Underwriter; the fees and expenses in
connection with obtaining a delinquency report and statement of direct and overlapping bonded
debt from California Municipal Statistics, Inc.; and the fees and disbursements of State Street,
Bond Counsel, any accountants, financial advisors or other engineers or experts or consultants
the Authority or the City has retained in connection with the Bonds and the Local Obligation and
any out-of-pocket disbursements of the Authority or the City to be paid from the proceeds of the
Bonds or the Local Obligations.
(b) Whether or not the Bonds are delivered to the Underwriter as set
forth herein, the Authority shall be under no obligation to pay, and the Underwriter shall pay the
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cost of preparation of any "blue sky" or legal investment memoranda and this Purchase
Agreement, expenses to qualify the Bonds for sale under any "blue sky" or other state securities
laws, the fees, if any, payable to the California Debt Advisory Commission on account of the
Bonds, and all other expenses incurred by the Underwriter in connection with its public offering
and distribution of the Bonds (except those specifically enumerated in paragraph (a) of this
section), including the fees and disbursements of its counsel and any advertising expenses.
5. Notices. Any notices, requests, directions, instruments or other
communications required or permitted to be given hereunder shall be in writing and shall be
given when delivered, against a receipt, or mailed certified or registered, postage prepaid, to the
Authority, the CitY and the Underwriter at the respective addresses below.
If to the Authority:
Tustin Public Financing Authority
c/o City of Tustin
300 Centennial Way
Tustin, California 92680
Attention: Finance Director
If to the City:
City of Tustin
300 Centennial Way
Tustin, California 92680
Attention: Finance Director
If to the Underwriter:
PaineWebber Incorporated
725 South Figueroa Street, 41 st Floor
Los Angeles, California 90017
Attention: Municipal Finance Department
provided, however, that all such notices, requests or other communications may be made by
telephone and promptly confirmed by writing. The Authority, City and the Underwriter may, by
notice given as aforesaid, specify a different address for any such notices, requests or other
communications.
6. Parties in Interest. This Purchase Agreement is made solely for the benefit
of the Authority and the Underwriter (including successors or assigns of the Underwriter) and no
other person shall acquire or have any right hereunder or by virtue hereof.
7. Survival of Representation and Warranties. The representations and
warranties of the City and the Authority set forth in or made pursuant to this Purchase Agreement
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shall not be deemed to have been discharged, satisfied or otherwise rendered void by reason of
the Closing or termination of this Purchase Agreement and regardless of any investigations made
by or on behalf of the Underwriter (or statements as to the results of such investigations)
concerning such representations and statements of the City and the Authority and regardless of
delivery of and payment for the Bonds.
8. Effective. This Purchase Agreement shall become effective and binding
upon. the respective parties hereto upon the execution of the acceptance hereof by the Authority
and shall be valid and enforceable as of the time of such acceptance.
9. Applicable Law; Nonassignability. This Purchase Agreement shall be
governed by the laws of the State of California. This Purchase Agreement shall not be assigned
by the Authority.
10. Execution of Counterparts.. This Purchase Agreement may be executed in
several counterparts, each of which shall be regarded as an original and all of which shall
constitute one and the same.
11. No Prior Agreements. This Purchase Agreement supersedes and replaces
all prior negotiations, agreements and understandings between the parties hereto in relation to the
sale of Bonds by the Authority and represents the entire agreement of the parties as to the subject
matter herein.
12. Partial Unenforceability. Any provision of this Purchase Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Purchase Agreement or affecting the validity or enforceability of
such provision in any other jurisdiction.
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13. Capitalized Terms. Terms with initial capital letters not otherwise defined
herein shall have the meanings assigned to them in the Indenture.
Very truly yours,
PAINEWEBBER INCORPORATED
By'
Name
Title
ACCEPTED:
TUSTIN PUBLIC FINANCING AUTHORITY
By:
Authorized Officer
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Exhibit A
Maturity Schedule for the Bonds
Maturity Principal Interest
(September 2) Amount Rate
Yield
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2012
2013
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EXHIBIT B
REP~SENTATION LETTER
The City of Tustin (the "City") hereby certifies in connection with the Bond
Purchase Agreement (the "Purchase Agreement"), dated as of , 1998, between
PaineWebber Incorporated and the Tustin Public Financing Authority, as follows (capitalized
terms not otherwise defined herein shall have the meaning set forth in the Purchase Agreement):
The City hereby represents and warrants to and agrees with the Underwriter that:
(a) The City is a Califomia general law city, duly organized and
validly existing pursuant to the Constitution and laws of the State of California;
(b) The City has, and at the Closing Date will have, full legal right,
power and authority (i) to execute, deliver and perform its obligations under the City Documents,
(ii) to adopt the City Resolutions, (iii)to issue, sell and deliver the Local Obligations to the
Authority as provided in the Local Obligation Purchase Agreement, and (iv)to carry out, give
effect to and consummate the transactions contemplated by the City Documents, the City
Resolutions and the Official Statement;
(c) The City is, and at the Closing Date will be, in compliance, in all
respects, with the City Documents;
(d) The City Council has duly and validly adopted the City
Resolutions 'and approved the execution and delivery of the Local Obligations and the City
Documents, and the performance by the City of its obligations contained therein, and the taking
of any and all action as may be necessary to carry out, give effect to and consummate the
transactions contemplated by each of said documents. The City Documents and the Local
Obligations have been, or on or before the Closing Date will be, duly executed and delivered by
the City, and, on the Closing Date, the Local Obligati°ns, the City Documents will constitute
legally valid and binding obligations, enforceable against the City in accordance with their
respective terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws or equitable principles relating to or limiting
creditors' rights generally;
(e) The City is not, and at the Closing Date will not be, in breach of or
in default under any applicable law or administrative rule or regulation of the State of California
(the "State") or the United States of America, or of any department, division, agency or
instrumentality of either thereof, or under any applicable court or administrative decree or order,
or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument
to which the City is a party or is otherwise subject or bound, a consequence of which could be to
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materially and adversely affect the ability of the City to perform its obligations under the Local
Obligations or the other City Documents;
(f) The adoption of the City Resolutions and the execution and
delivery of the Local Obligations and the City Documents or any other applicable agreements
and the other instruments contemplated by any of such documents to which the City is a party,
and compliance with the proVisions thereof, will not conflict with or constitute a breach of or
default under any applicable law or administrative rule or regulation of the State of California or
the United States of America, or of any department, division, agency or instrumentality of either
thereof, or under any applicable court or administrative decree or order, or under any loan
agreement, note, resolution, indenture, contract, agreement or other instrument to which the City
is a party or is otherwise subject or bound, a consequence of which could be to materially and
adversely affect the ability of the City to perform its obligations under the Bonds or the City
Documents;
(g) Except as may be required under the blue sky laws of any state, all
approvals, consents, authorizations, elections and orders of or filings or registrations with any
governmental authority, board~ agency or commission having jurisdiction which would constitute
conditions precedent to, or the absence of which would materially adversely affect, the ability of
the City to perform its obligations under any of the City Documents, or under the Local
Obligations, or any other applicable agreements, have been obtained and are in full force and
effect;
(h) The Local Obligations, the Fiscal Agent Agreement, the
Continuing Disclosure Agreement and the Procedural Resolutions conform as to form and tenor
to the descriptions thereof contained in the Preliminary Official Statement, and which will be
contained in the Official Statement as of the Closing Date, and when delivered to and paid for by
the Underwriter on the Closing Date as provided herein, the Local Obligations will be validly
issued and outstanding;
(i) The reassessments constituting the security for the Local
Obligations have been duly and lawfully levied under and pursuant to the Municipal
Improvement Act of 1913 (Sections 10000 and following, California Streets and Highways
Code), the Improvement Bond Act of 1915 (Division 10 of the California Streets and Highways
Code), as amended, and such reassessments constitute valid and legally binding liens on the
' properties on which they have been levied;
(j) There are no outstanding reassessment liens levied by the City
against any of the properties within the District which are senior to the assessment liens referred
to in paragraph (i) hereof, and the City has no present intention of conducting further proceedings
leading to the levying of additional assessments against any of the properties within the District;
(k) The Preliminary Official Statement provided to the Underwriter
has been deemed final by the City, as required by Rule 15c2-12. As of the date thereof, the
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Preliminary Official Statement (other than information with respect to the Developer, as to which
the City shall not be required to express any view) did not contain any untrue statement of a
material fact or omit a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading; the
Official Statement (other than information with respect to the Developer, as to which the City
shall not be required to express any view) does not and, as of the Closing Date, will not contain
any untrue or misleading statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not
misleading;
(1) Until the date which is 25 days after the End Date, if any event
shall occur of which the City is aware, as a result of which it may be necessary to supplement the
Official Statement in order to make the statements contained in the Official Statement, in light of
the circumstances existing at such time, not misleading, the City, shall forthwith notify the
Underwriter of any such event of which it has knowledge and shall cooperate fully in furnishing
any information available to it for any supplement to the Official Statement necessary, as
required by subparagraph (m) below;.
(m) After the Closing and until the date which is 25 days after the End
Date (i)the City will not adopt any amendment of or supplement to the Official Statement to
which the Underwriter shall object in writing or which shall be disapproved by counsel for the
Underwriter, and (ii) if any event relating to or affecting the City shall occur as a result of which
it is necessary, in the opinion of counsel for the Underwriter, to amend or supplement the Official
Statement in order to make the Official Statement not misleading in the light of the
circumstances existing at the time it is delivered to an initial purchaser of the Bonds, the City
will forthwith prepare and furnish to the Underwriter a reasonable number of copies of an
amendment of or supplement to the Official Statement (in form and substance satisfactory to
counsel for the Underwriter) which will amend or supplement the Official Statement so that it
will not contain an untrue statement of a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time the Official Statement is delivered to
an initial purchaser of the Bonds, not misleading. The costs of preparing any necessary
amendment or supplement to the Official Statement shall be borne by the City. For the purposes
of this section the City will furnish such information with respect to itself as the Underwriter
may from time to time request;
(n) The Fiscal Agent Agreement will create a valid pledge of and lien
upon the unpaid assessments in the Subject Area of the District and the interest thereon and the
moneys in all funds and accounts established therein, subject in all cases to the provisions
permitting the application thereof for the purposes and on the terms and conditions set forth
therein;
(o) No action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, regulatory agency, public board or body is pending, or to the
knowledge of the City threatened in any way, affecting the existence of the City or the titles of its
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officers to their respective offices or seeking to restrain or to enjoin the issuance, sale or delivery
of the Local Obligations, the application of the proceeds thereof, or the collection or application
of reassessments pledged or to be pledged to pay the principal of and interest on the Local
Obligations, or the pledge thereof, or in any way contesting or affecting the validity or
enforceability of the .City Resolutions, the Local Obligations or the City Documents, or any
action of the City contemplated by any of said documents, or in any way contesting the
completeness or accuracy of the Preliminary Official Statement or the Official Statement or the
powers of the City or its authority with respect to the City Resolutions, the Local Obligations or
the City Documents, or any action of the City contemplated by any of said documents, or which
would adversely affect the exemption of interest paid on the Local Obligations from federal
income taxation or California personal income taxation, nor to the knowledge of the City is there
any basis therefor;
(p) The City will furnish such information, execute such instruments
and take such other action in cooperation with the Underwriter as the Underwriter may
reasonably request in order for the Underwriter to qualify the Bonds for offer and sale under the
"blue sky" or other securities laws and regulations of such states and other jurisdictions of the
United States as the Underwriter may designate; provided, however, the City shall not be
required to register as a dealer or a broker of securities or consent to the jurisdiction of any State
of the United States, other than the State of California;
(q) Any certificate signed by any authorized official of the City
authorized to do so shall be deemed a representation and warranty by the City to the Underwriter
as to the statements made therein;
(r) During the period from the date hereof until the Closing Date, the
City agrees to furniSh the Underwriter with copies of any documents it files with any regulatory
authority which are requested by the Underwriter;
(s) The City is not in default, nor has the City been in default at any
time, as to the payment of principal or interest with respect to an obligation issued by the City or
with respect to an obligation guaranteed by the City as guarantor;
(t) The City has not been notified of any listing or proposed listing by
the Internal Revenue Service to the effect that the City is a bond issuer whose arbitrage
certificates may not be relied upon;
(u) The City will apply the proceeds from the sale of the Local
Obligations as set forth in and for the purposes specified in the City Resolutions and the Fiscal
Agent Agreement;
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(v) The City will undertake, pursuant to the Fiscal Agent Agreement
and the Continuing Disclosure Agreement, to provide certain annual financial information and
information about the property in the District, together with notices of the occurrence of certain
events, if material. A copy of the Continuing Disclosure Agreement is set forth in Appendix C
of the Preliminary Official Statement and will also be set forth in the Official Statement, and the
specific nature of the information to be contained in the Annual Report (as defined in the
Continuing Disclosure Agreement) or the notices of material events is set forth in the Continuing
Disclosure Agreement.
Very truly yours,
CITY OF TUSTIN
By'
Ronald A. Nault
Finance Director
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