HomeMy WebLinkAbout1998-09-17 - Resolution No. 98-12•
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YORBA LINDA WATER DISTRICT
RESOLUTION NO. 98-12
RESOLUTION OF THE BOARD OF DIRECTORS OF YORBA
LINDA WATER DISTRICT, ORANGE COUNTY, CALIFORNIA,
PROVIDING FOR THE ISSUANCE AND SALE OF 510,105,000
GENERAL OBLIGATION REFUNDING BONDS FOR
IMPROVEMENT DISTRICT NO. 2, SERIES 1998, OF SAID
DISTRICT
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TABLE OF CONTENTS S
Page
ARTICLE I
Section I.I. Definitions..
DEFINITIONS
.
ARTICLE II
2
THE BONDS
Section 2.1.
Authorization of Bonds, Denominations, Maturities and Payments
6
Section 2.2.
Transfer and Exchange of Bonds
7
Section 2.3.
Re<_i;, rmtion Books
8
Section 2.4.
Form ::nd Execution of Bonds
8
Section 2.5.
Authentication of Bonds
8
Section 2.6.
Temporary Bonds
8
Section 2.7.
Bonds Mutilated, Lost, Destroyed or Stolen
9
Section 2.8.
Book Entry
9
ARTICLE III
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS
Section 3.1. Issuance of the Bonds ..................................................................................................1 1
Section 3.2. Application of Proceeds of the Bonds I 1
Section 3.3. Cost of Issuance Fund I I
Section 3.4. Validity of Bonds ........................................................................................................1 1
ARTICLE IV
REDEMPTION OF BONDS
Section 4.1. Redemption I 1
ARTICLE V
SECURITY OF BONDS; INTEREST AND SINKING FUND; INVESTMENTS
Section 5.1. Security of Bonds; Interest and Sinking Fund ............................................................1 l
Section 5.2. Investment of Moneys .................................................................................................13
ARTICLE VI
PARTICULAR COVENANTS
Section 6.1. Punctual Payment ........................................................................................................13
Section 6.2. Extension of Payment of Bonds ..................................................................................13
Section 6.3. Power to Issue Bonds and Make Pledge and Assignment ..........................................13
Section 6.4. Tax Covenants Relating to Bonds ...............................................................................13
Section 6.5. Rebate Fund ................................................................................................................14
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Section 6.6. Continuing Disclosure .................................................................................................17
Section 6.7. Further Assurances ......................................................................................................17
ARTICLE VII
THE PAYING AGENT
Section 7.1. The Paying Agent ........................................................................................................17
ARTICLE VIII
DEFEASANCE
Section 8.1. Discharge of Resolution ..............................................................................................20
Section 8.2. Discharge of Liability on Bonds .................................................................................21
Section 8.3. Deposit of Money or Securities with Paying Agent ...................................................21
Section 8.4. Payment of Bonds After Discharge of Resolution ......................................................21
ARTICLE IX
AGREEMENTS
Section 9.1. Sale of Bonds to Original Purchaser ...........................................................................22
Section 9.2. Escrow Agreement and Continuing Disclosure Agreement .......................................22
ARTICLE X
EVENTS OF DEFAULT AND REMEDIES OF BOND OWNERS
Section 10.1. Events of Default ........................................................................................................22
Section 10.2.
Omitted
23
Section 10.3.
Remedies of the Bond Owners
23
Section 10.4.
Application of Revenues and Other Funds After Default
23
Section 10.5.
Absolute Obligation of District
23
Section 10.6.
Termination of Proceedings
23
Section 10.7.
Remedies Not Exclusive
24
Section 10.8.
No Waiver of Default
24
ARTICLE XI
MISCELLANEOUS
Section 11.1. Successor Is Deemed Included in All References to Predecessor ..............................24
Section 11.2. Limitation of Rights to Parties and Bond Owners ......................................................24
Section 11.3. Waiver of Notice; Requirement of Mailed Notice ......................................................24
Section 11.4. Destruction of Bonds ...................................................................................................24
Section 11.5. Severability of Invalid Provisions ...............................................................................24
Section 11.6. Effect of Master Resolution ........................................................................................25
Section 11.7. Notices .........................................................................................................................25
Section 11.8. Evidence of Rights of Bond Owners ...........................................................................25
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Section 11.9. Disqualified Bonds ......................................................................................................26
Section 11.10. Money Held for Particular Bonds ...............................................................................26
Section 11.11. Funds and Accounts ....................................................................................................26
Section 11.12. Payment on Non-Business Days .................................................................................26
Section 11.13. Waiver of Personal Liability .......................................................................................26
Section 11.14. Execution in Several Counterparts ..............................................................................26
Section 11.15. Governing Laws ..........................................................................................................27
Section 11.16. Certificate and Opinion as to Conditions Precedent ...................................................27
Section 11.17. Statements Required in Certificate or Opinion ...........................................................27
Section 11.18. Instructions to Paying Agent .......................................................................................27
ARTICLE XII
PROVISIONS RELATING TO MUNICIPAL BOND INSURANCE
Section 12.1.
Consent of Ambac Assurance
27
Section 12.2.
Information to be Given to Ambac Assurance
28
Section 12.3.
Provision relating to Defeasance
29
Section 12.4.
Payment Procedure Pursuant to the Municipal Bond Insurance Policy
29
Section 12.5.
Ambac as a Third Party Beneficiary
30
EXHIBIT A BOND FORM ...........................................................................................................A-1
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YORBA LINDA WATER DISTRICT
RESOLUTION NO. 98-12
RESOLUTION OF THE BOARD OF DIRECTORS OF YORBA
LINDA WATER DISTRICT, ORANGE COUNTY, CALIFORNIA,
PROVIDING FOR THE ISSUANCE AND SALE OF $10,10,000
GENERAL OBLIGATION REFUNDING BONDS FOR
IMPROVEMENT DISTRICT NO. 2, SERIES 1998, OF SAID
DISTRICT
WHEREAS, by Resolution No. 78-31 duly adopted by the Board of Directors (herein
"Board") of Yorba Linda Water District (herein called the "District"), a special election was duly
and legally held and conducted in Improvement District No. 2 of said District, on the 13th day of
June, 1978, at which election there was submitted to the qualified voters of said improvement district
the following bond proposition:
BOND PROPOSITION: Shall the Yorba Linda Water District incur an
indebtedness for Improvement District No. 2 thereof in the sum of $41,660,000 for the
purpose of the acquisition and construction of works and facilities useful or necessary to
convey, supply, store or make use of water, including all land, easements, rights of way and
other property necessary therefor, and including all engineering, inspection, legal and Paying
Agent's fees, costs of the bond election and of the issuance of bonds, and bond interest
estimated to accrue during the construction period and for a period not to exceed twelve
months after the completion of construction, and all costs and estimated costs incidental to or
connected with such acquisition, construction or financing of said facilities?
WHEREAS, more than two-thirds of the votes cast at said election were cast in favor of
incurring said indebtedness and issuing said general obligation bonds and the District was authorized
to issue bonds for said improvement district in the amount and for the purpose set forth in said
proposition; and
WHEREAS, the Board of the District on April 5, 1979, duly adopted its Resolution No. 79-
13, as amended by its Resolution No. 84-05 and as maybe further supplemented or amended from
time to time, (the "Master Resolution") authorizing the issuance of Yorba Linda County Water
District Improvement District No. 2 1979 Water Bonds (the "Bonds") of the District, for the benefit
of Improvement District No. 2 (the "Improvement District") of the District, in the maximum
principal amount of $41,660,000; and
WHEREAS, the Master Resolution provides that the Board may by supplemental resolution
establish one or more series of Bonds in such principal amount as the Board shall determine; and
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WHEREAS, pursuant to the Master Resolution, the Board on April 5, 1979 adopted
Resolution No. 79-14 (the "First Supplemental Resolution") authorizing the issuance of and
thereafter issued $1,005,000 principal amount of the authorized bonds designated Series A Bonds
(the "Series A Bonds"); and
WHEREAS, the Board adopted Resolution No. 84-06 on April 19, 1984 (the "Second
Supplemental Resolution") authorizing the issuance of and thereafter issued $10,000,000 principal
amount of the authorized bonds designated as 1979 Water Bonds, Series B; and
WHEREAS, in February of 1987, the District issued $11,915,000 principal amount of its
Improvement District No. 2, 1987 Refunding Bonds (the " 1987 Refunding Bonds") to refund its
Improvement District No. 2 1979 Water Bonds, Series B; and
WHEREAS, on February 8, 1990, by its Resolution No. 90-5 (the "Third Supplemental
Resolution"), the Board of the District authorized the issuance of and thereafter issued $6,000,000 of
said authorized bonds designated "Yorba Linda Water District Improvement District No. 2, 1979
Water Bonds, Series C" (the "Series C Bonds"); and
WHEREAS, pursuant to Division 12 of the Water Code of the State of California and
Chapter 3, Division 2, Title 5 of the Government Code of the State of California the District may
issue refunding bonds, without submitting the question of issuance of the refunding bonds to a vote
of the qualified electors, and
WHEREAS, pursuant to Division 12 of the Water Code of the State of California and
Chapter 3, Division 2, Title 5 of the Government Code of the State of California, the District desires
to issue $10,105,000 Refunding Bonds, designated "General Obligation Refunding Bonds for
Improvement District No. 2, Series 1998" (the "Bonds") to refund the Series A Bonds, the 1987
Refunding Bonds and the Series C Bonds (the "Refunded Bonds");
NOW, THEREFORE, the Board of Directors of Yorba Linda Water District DOES
HEREBY RESOLVE, DETERMINE AND ORDER as follows:
ARTICLE I
DEFINITIONS
Section I.I. Definitions. Unless the context otherwise requires, the terms defined in this
Section shall, for all purposes of this Resolution and of any Resolution 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.
"Ambac Assurance" shall mean Ambac Assurance Corporation, a Wisconsin-domiciled
stock insurance company.
"Authorized Representative" means: (a) with respect to the District, its General Manager,
Assistant General Manager or Business Manager, or any other Person designated as an Authorized
Representative of the District in a Written Certificate of District signed by its General Manager and
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filed with the Paying Agent; and (b) with respect to the Paying Agent, any Senior Vice President,
Vice President, Assistant Vice President or Trust Officer of the Paying Agent, and when used with
reference to any act or document also means any other Person authorized to perform such act or sign
any document by or pursuant to a resolution of the Board of Directors of the Paying Agent or the by-
laws of the Paying Agent.
"Bond Counsel" means Stradling Yocca Carlson & Rauth, a Professional Corporation and its
successors; or any other firm of nationally recognized bond counsel selected by the District and
acceptable to the District and the Paying Agent.
"Bond Year" means each twelve-month period beginning on July 1 in any year and
extending to, but excluding, the next succeeding July 1; except that the first Bond Year shall begin
on the Closing Date and end on July 1, 1999.
"Bonds" means the Yorba Linda Water District General Obligation Refunding Bonds for
Improvement District No. 2, Series 1998 issued in the aggregate principal amount of $10,105,000
and authorized by, and at any time Outstanding pursuant to, this Resolution.
"Business Dav" means a day which is not a Saturday, Sunday or legal holiday on which the
New York Stock Exchange is closed or on which banking institutions in the State of California or in
any state in which the Office of the Paying Agent is located, are closed.
"Closing Date" means the date on which the Bonds are delivered to the Original Purchaser.
"Costs of Issuance" means all items of expense directly or indirectly payable by or
reimbursable to the District in connection with the issuance and sale of the Bonds including
administrative fees, printing costs, reproduction and binding costs, initial fees and charges of the
Paying Agent (including legal fees), financing discounts, legal fees and charges, insurance and
surety premiums, as applicable, cost of safekeeping of the Bonds, fees and charges, financial
consultants and other professional fees and expenses in connection with the original sale, execution
and delivery of the Bonds.
"Costs of Issuance Fund" means the fund by that name established and held by the District
pursuant to Section 3.3.
"Devositorv" means The Depository Trust Company or a substitute therefor determined
pursuant to Section 2.9(a).
"District" means the Yorba Linda Water District, and any successor thereto.
"Escrow Agreement" means that certain Escrow Agreement, dated as of September 10,
1998, between the District and U.S. Bank Trust National Association, as Escrow Bank.
"Escrow Bank" means U.S. Bank Trust National Association, and its successor and assigns.
"Federal Securities" means any of the following which at the time of investment are legal
investments under the laws of the State of California for the funds purported to be invested therein:
(a) direct general obligations of the United States of America (including obligations issued or held in
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book entry form on the books of the Department of the Treasury of the United States of America);
and (b) obligations of any agency, department or instrumentality of the United States of America the
timely payment of principal of and interest on which are fully guaranteed by the United States of
America.
"Fiscal Year" means the period beginning on July 1 of each year and ending on the next
succeeding June 30, or any other twelve-month period hereafter selected and designated as the
official fiscal year period of the District designated in a Written Certificate of the District delivered
to the Paying Agent.
"Improvement District" means Improvement District No. 2 of the District.
"Information Services" means Financial Information, Inc.'s "Daily Called Bond Service",
30 Montgomery Street, 10th Floor, Jersey District, New Jersey 07302, Attention: Editor; Kenny
Information Services' "Called Bond Service," 65 Broadway, 16th Floor, New York, New York
10006; Moody's Investors Service "Municipal and Government," 99 Church Street, 8th Floor, New
York, New York 10007, Attention: Municipal News Reports; Standard & Poor's "Called Bond
Record," 25 Broadway, 3rd Floor, New York, New York 10004; and, in accordance with then
current guidelines of the Securities and Exchange Commission, such other addresses and/or such
other services providing information with respect to called bonds as the District may designate in a
Written Certificate of the District delivered to the Paying Agent.
"Interest and Sinking? Fund" means the Interest and Sinking Fund established and held by the
District pursuant to Section 8 of the Master Resolution.
"Interest Pavment Date" means May 1 and November I in each year, commencing May 1,
1999, so long as any Bonds remain Outstanding.
"Master Resolution" means Resolution No. 79-13 of the District as amended by Resolution
No. 84-05 of the District.
"Moody's Investors Service" or "Moodv's" means Moody's Investors Service, a corporation
organized and existing under the laws of the State of Delaware, its successors and their assigns, and
if such corporation shall for any reason no longer perform the functions of a securities rating agency,
such terms shall be deemed to refer to any other nationally recognized rating agency designated by
the District.
"Municipal Bond Insurance Policv" shall mean the municipal bond insurance policy issued
by Ambac Assurance insuring the payment when due of the principal of and interest on the Bonds as
provided therein.
"Office" means the principal corporate trust office of the Paying Agent at 550 S.
Hope Street, Suite 500, Los Angeles, California 90071, or such other offices as may be specified to
the District by the Paying Agent in writing.
"Orieinal Purchaser" means Salomon Smith Barney, as the original purchaser of the Bonds.
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"Outstandinia" when used as of any particular time with reference to Bonds, means all Bonds
theretofore, or thereupon being, authenticated and delivered by the Paying Agent under this
Resolution except (a) Bonds theretofore canceled by the Paying Agent or surrendered to the Paying
Agent for cancellation; (b) Bonds with respect to which all liability of the District shall have been
discharged in accordance with Section 10.2; and (c) Bonds for the transfer or exchange of or in lieu
of or in substitution for which other Bonds shall have been authenticated and delivered by the Paying
Agent pursuant to this Resolution.
"Owner" or "Bond Owner' whenever used herein with respect to a Bond, means the Person
in whose name the ownership of such Bond is registered on the Registration Books.
"Pavine Agent" means U.S. Bank Trust National Association, a national banking association
organized and existing under the laws of the United States of America, or its successor, as Paying
Agent hereunder as provided in Section 7.1 of this Resolution and acting as Paying Agent for the
Series A Bonds and the 1987 Refunding Bonds.
"Person" means an individual, corporation, firm, association, partnership, trust, or other legal
entity or group of entities, including a governmental entity or any agency or political subdivision
thereof.
"Rebate Fund" means the rebate fund by that name established and held by the District
pursuant to Section 6.5.
"Rebate Reizulations" means any proposed, final or temporary Treasury Regulation
promulgated under Section 148(f) of the Tax Code.
"Record Date" means the fifteenth (15th) calendar day of the month preceding each Interest
Payment Date, whether or not such day is a Business Day.
"Registration Books" means the records maintained by the Paying Agent for the registration
of ownership and registration of transfer of the Bonds pursuant to Section 2.3.
"Resolution" means this Resolution of Issuance, as originally adopted or as it may from time
to time be supplemented, modified or amended by any supplemental resolution.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw-Hill, Inc., a
corporation organized and existing under the laws of the State of New York, its successors and
assigns, and if such organization shall for any reason no longer perform the functions of a securities
rating agency, such terms shall be deemed to refer to any other nationally recognized rating agency
designated by the District.
"Securities Denositories" means The Depository Trust Company, 711 Stewart Avenue,
Garden District, New York 11530, Fax (516) 227-4039 or 4190; Midwest Securities Trust Company,
Capital Structures-Call Notification, 440 South LaSalle Street, Chicago, Illinois 60605,
Fax (312) 663-2343; Philadelphia Depository Trust Company, Reorganization Division, 1900
Market Street, Philadelphia, Pennsylvania 19103, Attention: Bond Department, Dex (215) 496-5058;
and, in accordance with then current guidelines of the Securities and Exchange Commission, such
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other addresses and/or such other securities depositories as the District may designate in a Written
Certificate of the District delivered to the Paying Agent.
"Six-Month Period" means, with respect to the Bonds, the period of time beginning on the
Closing Date and ending six consecutive months thereafter, and each six-month period thereafter
until the latest maturity date of the Bond issue (and any bonds that refund the Bond issue).
"Tax Certificate" means that certain Tax Certificate executed on the Closing Date by the
District with respect to the Bonds.
"Tax Code" means the Internal Revenue Code of 1986, as amended from time to time. Any
reference to a provision of the Tax Code shall include the applicable regulations of the Department
of the Treasury promulgated with respect to such provision.
"Written Certificate" and "Written Reauest" of the District mean, a written certificate or
written request signed in the name of the District by its Authorized Representative. Any such
certificate or request may, but need not, be combined in a single instrument with any other
instrument, opinion or representation, and the two or more so combined shall be read and construed
as a single instrument.
ARTICLE II
THE BONDS
Section 2.1. Authori_ation of Bonds, Denominations, Maturities and Payments.
(a) The Board of Directors hereby authorizes, pursuant to the authority and for
the purpose set forth in the recitals hereof, the issuance of $10,105,000 refunding bonds to refund the
outstanding Refunded Bonds of Improvement District No. 2 as set forth in the recitals hereof. The
bonds shall be designated "General Obligation Refunding Bonds, Series 1998, for Improvement
District No. 2" (the "Bonds"). The Bonds shall be issued in the form of fully registered bonds in the
denomination of $5,000 each or any whole multiple thereof, shall be dated September 15, 1998 (the
"Dated Date"), and shall mature on May 1 in the amounts for each of the years and at the interest
rates hereinafter set forth:
Years Inclusive
Principal Amount
Interest Rate
1999
$1,385,000
3.20%
2000
1,325,000
3.40
2001
1,375,000
3.50
2002
1,425,000
3.60
2003
1,475,000
3.70
2004
1,530,000
3.75
2005
1,590,000
3.75
(b) The Bonds, when issued, will be registered in the name of Cede & Co., as
nominee of the Depository, and shall be evidenced by one Bond for each maturity in the total
aggregate principal amount of the Bonds of such maturity. Registered ownership of the Bonds, or
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any portion thereof, may not thereafter be transferred except as set forth in Section 2.8 hereof. So
long as Cede & Co. is the registered owner of the Bonds, as nominee of the Depository, references
herein to the holders or registered owners shall mean Cede & Co. as aforesaid and shall not mean
the "beneficial owners" of the Bonds.
(c) Interest on the Bonds shall be payable from the Interest Payment Date next
preceding the date of authentication thereof unless (i) a 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 Bond is authenticated on or before the
first Record Date, in which event interest thereon shall be payable from September 15, 1998 or
(iii) interest on any 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 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
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 Bond is registered on the Registration
Books at the close of business on a special Record Date to be established by the Paying Agent for
the payment of such defaulted interest to be fixed by the Paying Agent, notice of which shall be
given to such Owner not less than ten (10) days prior to such special Record Date. Interest shall
be paid by check of the Paying Agent mailed by first class mail, postage prepaid, on each Interest
Payment Date to the Bond Owners at their respective addresses shown on the Registration Books as
of the close of business on the preceding Record Date.
(d) The principal of the Bonds shall be payable in lawful money of the United
States of America upon presentation and surrender thereof at the Office of the Paying Agent.
Payment of principal on any Bond shall be made only upon presentation and surrender of such
Bond at the Office of the Paying Agent.
(e) The Board of Directors finds and determines that the issuance of the Bonds to
refund the Refunded Bonds will provide the District with gross savings in debt service on the Bonds
as compared to the debt service on said Refunded Bonds which constitutes a sufficient governmental
purpose to authorize the issuance of the Bonds, and complies with Section 53552 of the Government
Code of the State of California.
Section 2.2. Transfer and Exchange of Bonds.
(a) Transfer of Bonds. Any Bond may, in accordance with its terms, be
transferred upon the Registration Books by the Person in whose name it is registered, in person or
by his duly authorized attorney, upon surrender of such Bond for cancellation, accompanied by
delivery of a written instrument of transfer, duly executed in a form acceptable to the Paying
Agent. Whenever any Bond or Bonds shall be surrendered for transfer, the District shall execute
and the Paying Agent shall authenticate and shall deliver a new Bond or Bonds for a like aggregate
principal amount of the same maturity, in any authorized denomination. The Paying Agent shall
require the Bond Owner requesting such transfer to pay any tax or other governmental charge
required to be paid with respect to such transfer.
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(b) Exchange of Bonds. The Bonds may be exchanged at the Office of the
Paying Agent for a like aggregate principal amount of Bonds of the same maturity of other
authorized denominations. The District may charge a reasonable sum for each new Bond issued
upon any exchange (except in the case of any exchange of temporary Bonds for definitive Bonds
and except in the case of the first exchange of any definitive Bond in the form in which it is
originally issued); and the Paying Agent shall require the payment by the Bond Owner requesting
such exchange of any tax or other governmental charge required to be paid with respect to such
exchange.
Section 2.3. Registration Books. The Paying Agent will keep or cause to be kept, at the
Office of the Paying Agent, sufficient records for the registration and transfer of ownership of the
Bonds, which shall be open to inspection during regular business hours and upon twenty-four (24)
hours notice by the District and the District; and, upon presentation for such purpose, the Paying
Agent shall, under such reasonable regulations as it may prescribe, register or transfer or cause to
be registered or transferred, on such records, the ownership of the Bonds as hereinbefore provided.
Section 2.4. Form and Execution of Bonds. The Bonds shall be in substantially the form
set forth in Exhibit B hereto. The Bonds shall be executed in the name and on behalf of the
District with the facsimile signature of its Chairman (or any duly authorized deputy to the
Chairman) attested by the manual or facsimile signature of its Secretary. Such seal may be in the
form of a facsimile of the District's seal and may be reproduced, imprinted or impressed on the
Bonds. The Bonds shall then be delivered to the Paying Agent for authentication by it. In case
any of the officers who shall have signed or attested any of the Bonds shall cease to be such officer
or officers of the District before the Bonds so signed or attested shall have been authenticated or
delivered by the Paying Agent, or issued by the District, such Bonds may nevertheless be
authenticated, delivered and issued and, upon such authentication, delivery and issue, shall be as
binding upon the District as though those who signed and attested the same had continued to be
such officers of the District; and also any Bonds may be signed and attested on behalf of the
District by such Persons as at the actual date of execution of such Bonds shall be the proper
officers of the District although at the nominal date of such Bonds any such Person shall not have
been such officer of the District.
Section 2.5. Authentication of Bonds. Only such of the Bonds as shall bear thereon a
certificate of authentication substantially in the form set forth in Exhibit A hereto, manually
executed by the Paying Agent, shall be valid or obligatory for any purpose or entitled to the
benefits of this Resolution, and such certificate of or on behalf of the Paying Agent 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 Resolution.
The Paying Agent may appoint an authenticating agent acceptable to the District to
authenticate the Bonds. An authenticating agent may authenticate Bonds whenever the Paying
Agent may do so. Each reference in the Resolution to authentication by the Paying Agent includes
authentication by such agent.
Section 2.6. Temporary Bonds. The Bonds may be issued in temporary form
exchangeable for definitive Bonds when ready for delivery. Any temporary Bonds may be printed,
lithographed or typewritten, shall be of such authorized denominations as may be determined by
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the District, shall be in fully registered form without coupons and may contain such reference to
any of the provisions of this Resolution as may be appropriate. Every temporary Bond shall be
executed by the District and authenticated by the Paying Agent upon the same conditions and in
substantially the same manner as the definitive Bonds. If the District issues temporary Bonds it
will execute and deliver definitive Bonds as promptly thereafter as practicable, and thereupon the
temporary Bonds may be surrendered, for cancellation, at the Office of the Paying Agent and the
Paying Agent shall authenticate and deliver in exchange for such temporary Bonds an equal
aggregate principal amount of definitive Bonds of authorized denominations. Until so exchanged,
the temporary Bonds shall be entitled to the same benefits under this Resolution as definitive Bonds
authenticated and delivered hereunder.
Section 2.7. Bonds Mutilated, Lost, Destroyed or Stolen. If any Bond shall become
mutilated, the District, at the expense of the Owner of said Bond, shall execute, and the Paying
Agent shall thereupon authenticate and deliver, a new Bond of like tenor and series in exchange
and substitution for the Bond so mutilated, but only upon surrender to the Paying Agent of the
Bond so mutilated. Every mutilated Bond so surrendered to the Paying Agent shall be canceled by
it and delivered to, or upon the order of, the District. If any Bond shall be lost, destroyed or
stolen, evidence of such loss, destruction or theft may be submitted to the Paying Agent and, if
such evidence and indemnity satisfactory to the Paying Agent shall be given, the District, at the
expense of the Owner, shall execute, and the Paying Agent shall thereupon authenticate and
deliver, a new Bond of like tenor in lieu of and in replacement for the Bond so lost, destroyed or
stolen (or if any such Bond shall have matured or shall be about to mature, instead of issuing a
replacement Bond, the Paying Agent may pay the same without surrender thereof). The District
may require payment by the Owner of a sum not exceeding the actual cost of preparing each
replacement Bond issued under this Section and of the expenses which may be incurred by the
District and the Paying Agent. Any Bond issued under the provisions of this Section in lieu of any
Bond alleged to be lost, destroyed or stolen shall constitute an original additional contractual
obligation on the part of the District whether or not the Bond so alleged to be lost, destroyed or
stolen be at any time enforceable by anyone, and shall be entitled to the benefits of this Resolution
with all other Bonds secured by this Resolution.
Section 2.8. Book Entry.
(a) The Bonds shall be initially registered in the name of Cede & Co., as
nominee of the Depository. Registered ownership of the Bonds, or any portion thereof, may not
thereafter be transferred except:
(i) To any successor of Cede & Co., as nominee of the Depository, or
its nominee, or to any substitute depository designated pursuant to clause (ii) of this
Section (a "substitute depository"); provided, that any successor of Cede & Co., as
nominee of the Depository or a substitute depository, shall be qualified under any
applicable laws to provide the services proposed to be provided by it;
(ii) To any substitute depository upon (1) the resignation of The
Depository Trust Company or its successor (or any substitute depository or its
successor) from its functions as depository, or (2) a determination by the District to
substitute another depository for The Depository Trust Company (or its successor)
599137.3\22608.0004
•
•
because The Depository Trust Company or its successor (or any substitute
depository or its successor) is no longer able to carry out its functions as
depository; provided, that any such substitute depository shall be qualified under
any applicable laws to provide the services proposed to be provided by it; or
(iii) To any person as provided below, upon (1) the resignation of The
Depository Trust Company or its successor (or substitute depository or its
successor) from its functions as depository, or (2) a determination by the District to
remove The Depository Trust Company or its successor (or any substitute
depository or its successor) from its functions as depository.
(b) In the case of any transfer pursuant to clause (i) or clause (ii) of
Subsection (a) hereof, upon receipt of the Outstanding Bonds by the Paying Agent, together with a
Certificate of the District to the Paying Agent, a new Bond for each maturity shall be executed and
delivered by the District in the aggregate principal amount of the Bonds then outstanding,
registered in the name of such successor or such substitute depository, or their nominees, as the
case may be, all as specified in such Certificate of the District.
(c) In the case of any transfer pursuant to clause (iii) of Subsection (a) hereof,
upon receipt of the Outstanding Bonds by the Paying Agent, together with a Certificate of the
District to the Paying Agent, new Bonds shall be executed by the District and delivered by the
Paying Agent in such denominations, numbered in the manner determined by the Paying Agent,
and registered in the names of such persons as are requested in such a Certificate of the District;
provided, the Paying Agent shall not be required to deliver such new Bonds within a period less
than sixty (60) days from the date of receipt of such a Certificate of the District. After any transfer
pursuant to this Subsection, the Bonds shall be transferred pursuant to Section 2.2.
(d) The District and the Paying Agent shall be entitled to treat the person in
whose name any Bond is registered as the owner thereof for all purposes of the Resolution and any
applicable laws, notwithstanding any notice to the contrary received by the Paying Agent or the
District; and the District and the Paying Agent shall have no responsibility for transmitting
payments to, communication with, notifying, or otherwise dealing with any beneficial owners of
the Bonds, and neither the District nor the Paying Agent will have any responsibility or
obligations, legal or otherwise, to the beneficial owners or to any other party, including the
Depository, except for the owner of any Bonds.
(e) So long as the outstanding Bonds are registered in the name of Cede & Co.
or its registered assigns, the District and the Paying Agent shall cooperate with Cede & Co., as
sole registered owner, or its registered assigns, in effecting payment of the principal of and interest
on the Bonds by arranging for payment in such manner that funds for such payments are properly
identified and are made immediately available on the date they are due. All payments shall be
made in accordance with the terms of the Letter of Representations among the District, the Paying
Agent and The Depository Trust Company.
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ARTICLE III
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS
Section 3.1. Issuance of the Bonds. Concurrently with the adoption of this Resolution, the
District shall execute and the Paying Agent shall authenticate and deliver the Bonds to the Original
Purchaser thereof in the aggregate principal amount of One Million One Hundred Five Thousand
Dollars ($1,105,000).
Section 3.2. Application of Proceeds of the Bonds. On the Closing Date, the net proceeds
derived from the sale of the Bonds shall be paid by the Original Purchaser (i) to the Escrow Bank
$4,393,172.25 for deposit in the Escrow Fund which together with money transferred by the District
to the Escrow Bank from the Interest and Sinking Fund and the Reserve Fund and the earnings
thereon will be sufficient, to pay scheduled interest and principal on the Series C Bonds on and prior
to May 1, 2000 and to pay the redemption price on the Series C Bonds maturing after May 1, 2000,
(ii) to the Paying Agent $5,536,695.50 for deposit in a temporary escrow fund to be established by
the Paying Agent, which together with money to the Paying Agent transferred by the District from
the Interest and Sinking Fund and the Reserve Fund for the 1987 Refunding Bonds, will be sufficient
to pay the interest due on November 1, 1998 on the Series A Bonds and the 1987 Refunding Bonds
and to pay the redemption price necessary to redeem on November 1, 1998 the Series A Bonds and
the 1987 Refunding Bonds due on and after May 1, 1999, to be deposited (iii) to the District the
balance of the Bond proceeds (a) $14,014.39 (accrued interest) to be deposited in the Interest and
Sinking Fund, and (b) the remainder to be deposited in the Cost of Issuance Fund.
Section 3.3. Cost of Issuance Fund. There is hereby established a separate fund to be
known as the "Cost of Issuance Fund", which shall be held by the District. the Auditor shall
withdraw from the Cost of Issuance Fund the amounts needed to pay Costs of Issuance. Any money
remaining in the Costs of Issuance fund after the payment of all Costs of Issuance shall be
transferred to the Interest and Sinking Fund.
Section 3.4. Validity of Bonds. The recital contained in the Bonds that the same are
issued pursuant to the constitution and laws of the State of California shall be conclusive evidence of
their validity and of compliance with the provisions of law in their issuance.
ARTICLE IV
REDEMPTION OF BONDS
Section 4.1. Redemption. The Bonds are not subject to optional call and redemption prior
to their respective maturity dates.
ARTICLE V
SECURITY OF BONDS; INTEREST AND SINKING FUND; INVESTMENTS
Section 5.1. Security of Bonds; Interest and Sinking Fund. If the revenues of the
Improvement District are, or in the judgment of the Board are likely to be, inadequate to pay the
599137.3\22608.0004
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interest on or principal of the Bonds as the same become due, or any other expenses or claims
against the Improvement District, the Board shall either:
(a) annually, at least fifteen days before the first day of the month in which the
Board of Supervisors of Orange County, California, is required by law to levy the amount of taxes
required for county purposes, furnish to said Board of Supervisors, and to the Auditor of said County
respectively, in writing, (i) an estimate of the minimum amount of money required by the District
from the Improvement District for the payment of the principal of or interest on the Bonds as the
same become due, (ii) a description of the Improvement District, which is the improvement district
benefited by incurring the indebtedness evidenced by the Bonds, and (iii) an estimate of the
minimum amount of money required by the Improvement District to meet all charges, claims,
expenditures and expenses other than a bonded debt; in which event, as required by law, said Board
of Supervisors shall annually until the Bonds are paid (or moneys for the payment of both the
principal and interests thereof as the same respectively become due are otherwise provided from
revenues of the Improvement District and are then on deposit in the Interest and Sinking Fund), levy
upon all the property within the Improvement District a tax sufficient to pay the annual interest on
the Bonds and also such part of the principal thereof as shall become due before the time for fixing
the next general county tax levy; or
(b) (i) elect to fix its own rates of taxation by resolution, pursuant to Section
31702.1 of the Water Code of the State of California, (ii) on or before September 1 of each year fix
the rates of taxation, based upon the written statement transmitted by the Auditor of said County to
the Board in such year showing the total value of all taxable property in the Improvement District to
be used by said County for taxation for such year, which rates of taxation shall be required for the
payment of the principal of or interest on the Bonds as the same become due before the time for
fixing the next general county tax levy and for each other purpose of the Improvement District for
such year, making due allowance for delinquency as fixed by law or by the Board, and (iii)
immediately certify said rates to said Auditor; which acts, as provided by law, shall be a valid
assessment of the property and a valid levy of the taxes so fixed; or
(c) provide for the assessment of all taxable property within the Improvement
District and the levy and collection of taxes thereon to pay the principal of and interest on the Bonds
as the same become due, in any other manner provided by law.
As currently provided by law, the Board of Supervisors of said County shall annually cause
to be collected a tax sufficient to pay the annual interest on the Bonds and also such part of the
principal thereof as shall become due before the time for fixing the next general county tax levy,
such tax to be known as "Yorba Linda Water District Improvement District No. 2 Bond Tax." Taxes
for the payment of the interest on or principal of the Bonds shall be levied upon all the taxable
property within the Improvement District and all such taxes shall be collected at the same time and
in the same manner and form as county taxes are collected, and when collected shall be paid to the
District, for deposit into a fund which was established by Section 8 of the Master Resolution and
designated "Yorba Linda Water District Improvement District No. 2 1998 Water Bond Interest and
Sinking Fund" (the "Interest and Sinking Fund"). The moneys in the Interest and Sinking Fund shall
be used (and transferred to the paying agents for the Bonds as required) for the sole purpose of
paying the principal of and interest on the Bonds. There shall likewise be deposited in said fund all
moneys provided from revenues of the Improvement District for the payment of the principal of and
599137.3\22608.0004 12
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interest on the Bonds. All such taxes for the payment of the Bonds or the interest thereon shall be a
lien on all the taxable property in the territory comprising the Improvement District and said taxes
shall be of the same force and effect as other liens for taxes and their collection shall be enforced by
the same means as provided for the enforcement of liens for state and county taxes.
Section 5.2. Investment of Moneys. Except as otherwise provided herein, all moneys in
any of the funds or accounts established pursuant to this Resolution shall be invested by the District
in investments authorized by the latest adopted investment policy resolution.
ARTICLE VI
PARTICULAR COVENANTS
Section 6.1. Punctual Payment. The District shall punctually pay or cause to be paid the
principal and interest to become due in respect of all the Bonds, in strict conformity with the terms
of the Bonds and of this Resolution, according to the true intent and meaning thereof.
Section 6.2. Extension of Payment of Bonds. The District shall not directly or indirectly
extend or assent to the extension of the maturity of any of the Bonds or the time of payment of any
claims for interest by the purchase of such Bonds or by any other arrangement, and in case the
maturity of any of the Bonds or the time of payment of any such claims for interest shall be
extended, such Bonds or claims for interest shall not be entitled, in case of any default hereunder, to
the benefits of this Resolution. except subject to the prior payment in full of the principal of all of
the Bonds then Outstanding and of all claims for interest thereon which shall not have been so
extended. Nothing in this Section shall be deemed to limit the right of the District to issue Bonds for
the purpose of refunding any Outstanding Bonds, and such issuance shall not be deemed to
constitute an extension of maturity of the Bonds.
Section 6.3. Power to Issue Bonds and Make Pledge and Assignment. The District is duly
authorized pursuant to law to issue the Bonds and to enter into this Resolution and to levy and
collect taxes pledged under this Resolution in the manner and to the extent provided in this
Resolution. The Bonds and the provisions of this Resolution are and will be the legal, valid and
binding obligations of the District in accordance with their terms.
Section 6.4. Tax Covenants Relating to Bonds. Notwithstanding any other provision of
this Resolution, absent an opinion of Bond Counsel that the exclusion from gross income of interest
with respect to the Bonds will not be adversely affected for federal income tax purposes, the District
covenants to comply with all applicable requirements of the Tax Code necessary to preserve such
exclusion from gross income and specifically covenants, without limiting the generality of the
foregoing, as follows:
(a) Private Business Use. The District shall assure that the proceeds of the
Bonds are not used in a manner which would cause the Bonds to be "private activity bonds" within
the meaning of Section 141 of the Tax Code. The District will not allow any of the proceeds of the
Bonds, or any refinanced obligations, or any of the facilities financed with such obligations, to be
used in the trade or business of any nongovernmental persons (other than in their roles as members
of the general public) and will not loan any of the proceeds of the Bonds, or any refinanced
599137.3\22608.0004 13
• •
obligations, to any nongovernmental persons. Further, the District will not voluntarily sell (nor
voluntarily permit the sale) to any nongovernmental persons (or otherwise permit the privatization
of) the facilities financed by the Bonds and the obligations refinanced by the Bonds;
(b) Arbitrate. The District will not make any use of the proceeds of the Bonds
or of any other amounts or property, regardless of the sources, or take or omit to take any action
which would cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Tax
Code;
(c) Federal Guarantee. The District will not make any use of the proceeds of the
Bonds or take or omit to take any action that would cause the Bonds to be "federally guaranteed"
within the meaning of Section 149(b) of the Tax Code;
(d) Information Reportine. The District will take or cause to be taken all
necessary action to comply with the information reporting requirements of Section 149(e) of the Tax
Code;
(e) Hedee Bonds. The District will not make any use of the proceeds of the
Bonds or any other amounts or property, regardless of the source, or take or omit to take any action
that would cause the Bonds to be considered "hedge bonds" within the meaning of Section 149(g) of
the Tax Code unless the District takes all necessary action to assure compliance with the
requirements of Section 149(8) of the Tax Code to maintain the exclusion from gross income of
interest on the Bonds for federal income tax purposes; and
(f) Miscellaneous. The District will not take any action inconsistent with its
expectations stated in that certain Tax Certificate executed on the Closing Date by the District in
connection with the issuance of the Bonds and will comply with the covenants and requirements
stated therein and incorporated by reference herein. These covenants stated herein shall survive the
defeasance of the Bonds.
Section 6.5. Rebate Fund.
(a) Establishment. A special fund is hereby created and designated the "Rebate
Fund" to be held by the Paying Agent and in which there shall be established two separate accounts
designated the "Rebate Account" and the "Alternative Penalty Account." Absent an opinion of
Bond Counsel acceptable to the Paying Agent and the District that the exclusion from gross income
for federal income tax purposes of interest on the Bonds will not be adversely affected, the District
shall cause to be deposited in each such account of the Rebate Fund such amounts as are required to
be deposited therein pursuant to this Section and the Tax Certificate. All money at any time
deposited in the Rebate Account or the Alternative Penalty Account shall be held by the Paying
Agent in trust for payment to the United States Treasury. All amounts on deposit in the Rebate Fund
shall be governed by this Section and the Tax Certificate, unless and to the extent that the District
delivers to the Paying Agent an opinion of Bond Counsel acceptable to the Paying Agent and the
District that the exclusion from gross income for federal income tax purposes of interest on the
Bonds will not be adversely affected if such requirements are not satisfied.
(i) Rebate Account. The following requirements shall be satisfied with
respect to the Rebate Account:
599137.3\22608.0004 14
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(A) Annual Computation. Within 55 days of the end of each
Bond Year, the District shall calculate or cause to be calculated the amount
of rebatable arbitrage, in accordance with Section 148(f)(2) of the Tax Code
and Section 1.148-3 of the Rebate Regulations (taking into account any
applicable exceptions with respect to the computation of the rebatable
arbitrage, described, if applicable, in the Tax Certificate (e.g., the temporary
investments exceptions of Section 148(f)(4)(B) and (C) of the Code), and
taking into account whether the election pursuant to Section 148(f)(4)(Qvii)
of the Code (the "1'/2% Penalty") has been made), for this purpose treating
the last day of the applicable Bond Year as a computation date, within the
meaning of Section 1.148-1(b) of the Rebate Regulations (the "Rebatable
Arbitrage"). The District shall obtain expert advice as to the amount of the
Rebatable Arbitrage to comply with this Section.
(B) Annual Transfer. Within 55 days of the end of each
applicable Bond Year, upon the written direction of a representative of the
District, an amount shall be deposited to the Rebate Account by the Paying
Agent from any funds legally available for such purpose (as specified by the
District in the aforesaid written direction), if and to the extent required so that
the balance in the Rebate Account shall equal the amount of Rebatable
Arbitrage so calculated in accordance with Subsection(a)(i)(1). In the event
that immediately following the transfer required by the previous sentence, the
amount then on deposit to the credit of the Rebate Account exceeds the
amount required to be on deposit therein, upon written instructions from an
District representative, the Paying Agent shall withdraw the excess from the
Rebate Account and then credit the excess to the Revenue Fund.
(C) Pavment to the Treasurv. The Paying Agent shall pay, as
directed by a representative of the District, to the United States Treasury, out
of amounts in the Rebate Account,
(1) Not later than 60 days after the end of (A)the fifth
Bond Year, and (B) each applicable fifth Bond Year thereafter, an
amount equal to at least 90% of the Rebatable Arbitrage calculated as
of the end of such Bond Year; and
(2) Not later than 60 days after the payment of all the
Bonds, an amount equal to 100% of the Rebatable Arbitrage
calculated as of the end of such applicable Bond Year, and any
income attributable to the Rebatable Arbitrage, computed in
accordance with Section 148(f) of the Code.
In the event that, prior to the time of any payment required to be made from
the Rebate Account, the amount in the Rebate Account is not sufficient to make such
payment when such payment is due, the District shall calculate or cause to be
calculated the amount of such deficiency and deposit an amount received from any
legally available source equal to such deficiency prior to the time such payment is
599137.322608.0004 15
•
•
due. Each payment required to be made pursuant to this Subsection shall be made to
the Internal Revenue Service Center, Philadelphia, Pennsylvania 19255 on or before
the date on which such payment is due, and shall be accompanied by Internal
Revenue Service Form 8038-T, or shall be made in such other manner as provided
under the Tax Code.
(ii) Alternative Penalty Account.
(A) Six-Month Computation. If the 1'/2% Penalty has been
elected, within 85 days of each particular Six-Month Period, the District shall
determine or cause to be determined whether the 1'/2% Penalty is payable
(and the amount of such penalty) as of the close of the applicable Six-Month
Period. The District shall obtain expert advice in making such
determinations.
(B) Six-Month Transfer. Within 85 days of the close of each Six-
Month Period, upon the written direction of a District representative, the
Paying Agent shall deposit in the Alternative Penalty Account from any
legally available source of funds (as specified by the District in the aforesaid
written direction), if and to the extent required, so that the balance in the
Alternative Penalty Account equals the amount of 1 %2% Penalty due and
payable to the United States Treasury determined as provided in
Subsection(a)(ii)(1) above. In the event that immediately following the
transfer provided in the previous sentence, the amount then on deposit to the
credit of the Alternative Penalty Account exceeds the amount required to be
on deposit therein to make the payments required by Subsection (a)(ii)(3)
below, the Paying Agent, at the written direction of a representative of the
District, shall withdraw the excess from the Alternative Penalty Account and
credit the excess to the Revenue Fund.
(C) Pavment to the Treasurv. The Paying Agent shall pay, as
directed in writing by an District representative, to the United States
Treasury, out of amounts in the Alternative Penalty Account, not later than
90 days after the close of each Six-Month Period the 1 %2% Penalty, if
applicable and payable, computed in accordance with Section 148(f)(4) of the
Tax Code. In the event that, prior to the time of any payment required to be
made from the Alternative Penalty Account, the amount in such account is
not sufficient to make such payment when such payment is due, the District
shall calculate the amount of such deficiency and direct the Paying Agent to
deposit an amount received from any legally available source of funds equal
to such deficiency into the Alternative Penalty Account prior to the time such
payment is due. Each payment required to be made pursuant to this
Subsection shall be made to the Internal Revenue Service, Philadelphia,
Pennsylvania 19255 on or before the date on which such payment is due, and
shall be accompanied by Internal Revenue Service Form 8038-T or shall be
made in such other manner as provided under the Tax Code.
599137.3\22608.0004 16
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(b) Disposition of Unexpended Funds. Any funds remaining in the Rebate Fund
after redemption and payment of the Bonds, the payments described in Subsection (a)(i)(3) or
(a)(ii)(3) (whichever is applicable), may be withdrawn by the District and utilized in any manner by
the District.
(c) Survival of Defeasance. Notwithstanding anything in this Section or this
Resolution to the contrary, the obligation to comply with the requirements of this Section and the
Tax Certificate shall survive the defeasance of the Bonds.
(d) Paving Agent Compliance. The Paying Agent shall be deemed to have
complied with this Section and the Tax Certificate if it follows the written direction of the District
and shall have no independent responsibility to, or liability resulting from its failure to, enforce
compliance by the District with the terms of the Tax Certificate.
Section 6.6. Continuing Disclosure. The District hereby agrees that it will comply with
and carry out all of its obligations under a Continuing Disclosure Agreement to be entered into by
and between the District and U.S. Bank Trust National Association, as dissemination agent.
Notwithstanding any other provision of this Resolution, failure of the District to comply with its
obligations under the Continuing Disclosure Agreement shall not be considered an event of default
under this Resolution, and the sole remedy, in the event of any failure of the District to comply with
the Continuing Disclosure Agreement shall be an action to compel performance. Upon receipt of
indemnification to its satisfaction, the Paying Agent shall at the request of any Participating
Underwriter (as defined in the Continuing Disclosure Agreement), or the Owners of a majority in
aggregate principal amount of Outstanding Bonds or any Bondowner or Beneficial Owner take such
actions as may be necessary and appropriate, including seeking mandate or specific performance by
court order. to cause the District to comply with its obligations under this Section 6.6. For purposes
of this Section, "Beneficial Owners" means any person with (a) has the power, directly or indirectly,
to vote or consent with respect to, or to dispose of ownership of, any Bonds (including persons
holding Bonds through nominees, depositories or other intermediaries), or (b) is treated as the owner
of any Bonds for federal income tax purposes.
Section 6.7. Further Assurances. The District will make, execute and deliver any and all
such further Resolutions, instruments and assurances as may be reasonably necessary or proper to
carry out the intention or to facilitate the performance of this Resolution and for the better assuring
and confirming unto the Owners of the Bonds of the rights and benefits provided in this Resolution.
ARTICLE VII
THE PAYING AGENT
Section 7.1. The Paying Agent. U.S. Bank Trust National Association with a corporate
trust office in Los Angeles, California, is hereby appointed Paying Agent for the District for the
purpose of receiving all moneys which the District is required to deposit with the Paying Agent
hereunder and to allocate, use and apply the same as provided in this Resolution. The District agrees
that it will maintain a Paying Agent having a corporate trust office in Los Angeles, California, so
long as any Bonds are Outstanding.
599137.3122608.0004 17
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The District may at any time remove the Paying Agent initially appointed, and any successor
thereto, and may appoint a successor or successors thereto; provided that any such successor shall be
a bank or trust company having (or shall be included in a bank holding company system having) a
combined capital and surplus of at least seventy-five million dollars ($75,000,000), and subject to
supervision or examination by federal or state authority. If such bank or trust company (or bank
holding company, as the case may be) publishes a report of condition at least annually, pursuant to
law or to the requirements of any supervising or examining authority above referred to, then for the
purposes of this Section the combined capital and surplus of such bank or trust company shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition so
published.
The Paying Agent may at any time resign by giving written notice to the District and by
giving to the Bond Owners notice by mail of such resignation. Upon receiving such notice of
resignation, the District may promptly appoint a successor Paying Agent by an instrument in writing.
Any resignation or removal of the Paying Agent and appointment of a successor Paying Agent shall
become effective only upon acceptance of appointment by the successor Paying Agent.
The Paying Agent is hereby authorized to pay the interest on the Bonds and to redeem the
Bonds when duly presented for payment at maturity, and to cancel all Bonds upon payment thereof
and return the same so cancelled to the District.
The recitals of facts, covenants and agreements herein and in the Bonds contained shall be
taken as statements, covenants and agreements of the District, and the Paying Agent does not assume
any responsibility for the correctness of the same or make any representation as to the validity or
sufficiency of this Resolution or of the Bonds. Nor shall the Paying Agent incur any responsibility
in respect thereof, other than in connection with the duties or obligations herein or in the Bonds
assigned to or imposed upon it. The Paying Agent shall not be liable in connection with the
performance of its duties hereunder, except for its own negligence or willful misconduct.
The Paying Agent shall be protected in acting upon any notice, resolution, request, consent,
order, certificate, report, bond or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties. The Paying Agent may consult with counsel,
who may be counsel to the District, with regard to legal questions, and the opinion of such counsel
shall be full and complete authorization and protection in respect of any action taken or suffered
hereunder in good faith and in accordance therewith.
The Paying Agent shall be bound to recognize any person as the Bond Owner unless and
until such Bond is submitted for inspection, if required, and his title thereto satisfactorily established,
if disputed.
Whenever in the administration of its duties under this Resolution the Paying Agent shall
deem it necessary or desirable that a matter be proved or established prior to taking or suffering any
action hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of bad faith on the part of the Paying Agent, be deemed to be
conclusively proved and established by a Certificate of the District and such Written Certificate shall
be full warrant to the Paying Agent for any action taken or suffered under the provisions of this
599137.3\22608.0004 18
• •
Resolution upon the faith thereof, but in its discretion the Paying Agent may, in lieu thereof, accept
other evidence of such matter or may require such additional evidence as to it may seem reasonable.
The Paying Agent undertakes to perform such duties, and only such duties, as are
specifically set forth in this Resolution, and no implied covenants or obligations shall be read into
this Resolution against the Paying Agent.
Any company into which the Fiscal Agency may be merged or converted or with which it
may be consolidated or any company resulting from any merger, conversion or consolidation to
which it shall be a party or any company to which the Paying Agent may sell or transfer all or
substantially all of its corporate trust business, provided such company shall be eligible under the
following paragraph of this Section, shall be the successor to such Paying Agent without the
execution or filing of any payer or any further act, anything herein to the contrary notwithstanding.
The Paying Agent assumes no responsibility or liability for any information, statement or
recital in any offering memorandum or other disclosure material prepared or distributed with respect
to the issuance of the Bonds. Except as provided above in this paragraph, the Paying Agent shall be
protected and shall incur no liability in acting or preceding, or in not acting or not proceeding, in
good faith, reasonably and in accordance with the terms of this Resolution upon any resolution,
order, notice, request, consent or waiver, certificate, statement, affidavit, or other paper or document
which it shall in good faith reasonably believe to be genuine and to have been adopted or signed by
the proper person or to have been prepared and furnished pursuant to any provision of this
Resolution, and the Paying Agent shall not be under any duty to make any investigation or inquiry as
to any statements contained or matters referred to in any such instrument.
The Paying Agent shall not be liable for any error of judgment made in good faith by a
responsible officer of the Paying Agent unless it shall be proved that the Paying Agent was negligent
in ascertaining the pertinent facts.
No provision of this Resolution shall require the Paying Agent to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers.
The Paying Agent shall not be responsible for accounting for, or paying to, any party,
including, but not limited to the District and the Bond Owners, any returns on or benefit from funds
held for payment of unredeemed Bonds or outstanding checks; and no calculation of the same shall
affect, or result in any offset against, fees due to the Paying Agent under this Resolution.
The Paying Agent shall be under no obligation to exercise any of the rights or powers vested
in it by this Resolution at the request or direction of any of the Bond Owners pursuant to this
Resolution unless such Bond Owners shall have offered to the Paying Agent reasonable security or
indemnity against the costs, expenses and liabilities which might to incurred by it in compliance
with such request or direction.
The Paying Agent may become the owner of the Bonds with the same rights it would have if
it were not the Paying Agent.
599137.3\22608.0004 19
All indemnification and releases from liability granted herein to the Paying Agent shall
extend to the directors, officers and employees of the Paying Agent.
The Paying Agent shall keep proper books of record and account in accordance with trust
accounting standards in which complete and correct entries shall be made of all transactions relating
to the receipt, investment, disbursement, allocation and application of the funds under this
Resolution. Such records shall be open to inspection by the District and by any Owner at any
reasonable time during regular business hours or reasonable notice. Not later than the fifteenth
(15th) day of each month, the Paying Agent will furnish to the District and to any Owner of at least
$1,000,000 in aggregate principal amount of the Bonds who may so reasonably request (at the
expense of such Owner) a complete statement covering the receipts, deposits and disbursements of
the funds held by the Paying Agent hereunder for the preceding month.
The District shall pay to the Paying Agent from time to time reasonable compensation for all
services rendered as Paying Agent under this Resolution, and also all reasonable expenses, charges,
counsel fees and other disbursements, including those of its attorneys, agents and employees,
incurred in and about the performance of its powers and duties under this Resolution; and the Paying
Agent shall have a lien therefor on any funds at any time held by it under this Resolution. The
District further agrees, to the extent permitted by applicable law, to indemnify and save the Paying
Agent, its officers, employees. directors and agents harmless against any costs, expenses, claims or
liabilities which it may incur in the exercise and performance of its powers and duties hereunder
which are not due to its negligence or willful misconduct. The obligation of the District under this
Section shall survive resignation or removal of the Paying Agent under this Resolution and payment .
of the Bonds and discharge of this Resolution.
ARTICLE VIII
DEFEASANCE
Section 8.1. Discharge of Resolution. The Bonds may be paid in whole or in part by the
District in any of the following ways, provided that the District also pays or causes to be paid any
other sums payable hereunder by the District:
(a) by paying or causing to be paid the principal of and interest on any or all of
the Bonds, as and when the same become due and payable;
(b) by depositing with the Paying Agent, a bank or trust company, in trust
(pursuant to an escrow agreement), at or before maturity, money or securities in the necessary
amount to pay or redeem any or all of the Bonds then Outstanding; or
(c) by delivering to the Paying Agent, for cancellation by it, any or all of the
Bonds then Outstanding.
If the District shall also pay or cause to be paid all other sums payable hereunder by
the District including without limitation any compensation due and owing the Paying Agent
hereunder, then and in that case, at the election of the District (evidenced by a Written Certificate of
the District, filed with the Paying Agent, signifying the intention of the District to discharge all such
599137.3\22608.0004 20
•
•
indebtedness and this Resolution), and notwithstanding that any Bonds shall not have been
surrendered for payment, this Resolution and the pledge of taxes and other assets made under this
Resolution and all covenants, agreements and other obligations of the District under this Resolution
shall cease, terminate, become void and be completely discharged and satisfied. In such event, upon
the Written Request of the District, and upon receipt of a Written Certificate of an Authorized
Representative of the District and an opinion of Bond Counsel acceptable to the Paying Agent, each
to the effect that all conditions precedent herein provided for relating to the discharge and
satisfaction of the obligations of the District have been satisfied, the Paying Agent shall cause an
accounting for such period or periods as may be requested by the District to be prepared and tiled
with the District and shall execute and deliver to the District all such instruments as may be
necessary or desirable to evidence such discharge and satisfaction, and the Paying Agent shall pay
over, transfer, assign or deliver all moneys or securities or other property held by it pursuant to this
Resolution, which are not required for the payment or redemption of Bonds not theretofore
surrendered for such payment or redemption, to the District.
Section 8.2. Discharge of Liability on Bonds. Upon the deposit with the Paying Agent, a
bank or a trust company, in trust, at or before maturity, of money or securities in the necessary
amount (as provided in Section 8.3) to pay or redeem any or all Outstanding Bonds (whether upon or
prior to the maturity date of such Bonds), provided that, if such Bonds are to be redeemed prior to
maturity, notice of such redemption shall have been given as provided in Article IV or provision
satisfactory to the Paying Agent shall have been made for the giving of such notice, then all liability
of the District in respect of such Bonds shall cease, terminate and be completely discharged, and the
Owners thereof shall thereafter be entitled only to payment out of such money or securities deposited
with the Paying Agent as aforesaid for their payment, subject, however, to the provisions of
Section 8.4.
The District may at any time surrender to the Paying Agent for cancellation by it any Bonds
previously issued and delivered, which the District may have acquired in any manner whatsoever,
and such Bonds, upon such surrender and cancellation, shall be deemed to be paid and retired.
Section 8.3. Deposit of Money or Securities with Paving Agent. Whenever in this
Resolution it is provided or permitted that there be deposited with or held in trust by the Paying
Agent, a bank or a trust company, money or securities in the necessary amount to pay Bonds, the
money or securities so to be deposited or held may include money or securities held by the Paying
Agent in the funds and accounts established pursuant to this Resolution and shall be:
(a) Lawful money of the United States of America, in an amount equal to the
principal amount of such Bonds and all unpaid interest thereon to maturity; or
(b) Non-callable Federal Securities described in clause (a) of the definition
thereof, the principal of, premium, if any, and interest on which when due, in the opinion or report of
an independent accountant selected by the District, will provide money sufficient to pay the principal
of and all unpaid interest to maturity on the Bonds to be paid as such principal and interest become
due; provided, in each case, that the Paying Agent, the bank or the trust company, shall have been
irrevocably instructed (by the terms of this Resolution or by Written Request of the District) to apply
such funds to the payment of such principal and interest with respect to such Bonds.
599137.3\22608.0004 21
Section 8.4. Payment of Bonds After Discharge of Resolution. Notwithstanding any
provisions of this Resolution, any moneys held by the Paying Agent in trust for the payment of the
principal of, or interest on, any Bonds and remaining unclaimed for two (2) years after the principal
of all of the Bonds has become due and payable (whether at maturity or upon call for redemption or
by acceleration as provided in this Resolution), if such moneys were so held at such date, or two (2)
years after the date of deposit of such moneys if deposited after said date when all of the Bonds
became due and payable, shall be repaid to the District free from the trusts created by this Resolution
upon receipt of an indemnification agreement acceptable to the District and the Paying Agent
indemnifying the Paying Agent with respect to claims of Owners of Bonds which have not yet been
paid, and all liability of the Paying Agent with respect to such moneys shall thereupon cease;
provided, however, that before the repayment of such moneys to the District as aforesaid, the Paying
Agent may (at the cost of the District) first mail, by first class mail postage prepaid, to the Owners of
Bonds which have not yet been paid, at the respective addresses shown on the Registration Books, a
notice, in such form as may be deemed appropriate by the Paying Agent with respect to the Bonds so
payable and not presented and with respect to the provisions relating to the repayment to the District
of the moneys held for the payment thereof.
ARTICLE IX
AGREEMENTS
Section 9.1. Sale of Bonds to Original Purchaser. The bid of Salomon Smith Barney (the
"Original Purchaser") provides the lowest net interest cost on the Bonds as calculated in accordance
with the provisions in the Official Notice Inviting Bids approved by the District by its Resolution
No. 98-11 and the bid of Salomon Smith Barney is accepted and the Bonds are awarded to Salomon
Smith Barney pursuant to the terms set forth in the Official Notice Inviting Bids and this Resolution.
Section 9.2. Escrow Agreement and Continuing Disclosure Agreement. The proposed
forms of the Escrow Agreement and the Continuing Disclosure Agreement presented at this meeting
are hereby approved; and the President and the Secretary are hereby authorized and directed for and
in the name and on behalf of the District to execute and deliver to the Escrow Bank and the
Dissemination Agent, respectively, said agreements is substantially said forms with such additions
thereto and/or changes therein as the officers executing said documents may approve as necessary or
desirable, such approval to be conclusively evidenced by the execution and delivery thereof.
ARTICLE X
EVENTS OF DEFAULT AND REMEDIES OF BOND OWNERS
Section 10.1. Events of Default. The following events shall be Events of Default:
(a) Failure to pay any installment of principal of any Bonds when and as the
same shall become due and payable, whether at maturity as therein expressed, by proceedings for
redemption, by acceleration, or otherwise.
(b) Failure to pay any installment of interest on any Bonds when and as the same
shall become due and payable.
599137.3\22608.0001 22
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(c) Failure by the District to observe and perform any of the other covenants,
agreements or conditions on its part in this Resolution or in the Bonds contained, if such failure shall
have continued for a period of sixty (60) days after written notice thereof, specifying such failure
and requiring the same to be remedied, shall have been given to the District by the Owners of not
less than twenty-five percent (25%) in aggregate principal amount of the Bonds at the time
Outstanding; provided, however, if in the reasonable opinion of the District the failure stated in the
notice can be corrected, but not within such sixty (60) day period, such failure shall not constitute an
Event of Default if corrective action is instituted by the District within such sixty (60) day period
and the District shall thereafter diligently and in good faith cure such failure in a reasonable period
of time.
(d) The District shall commence a voluntary case under Title 1 1 of the United
States Code or any substitute or successor statute.
The Paying Agent will have no responsibility for making, or obligation to make, any
determination that any such Event of Default has occurred by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the District pursuant to this Section.
Section 10.2. Omitted.
Section 10.3. Remedies of the Bond Owners. Any Bond Owner shall have the right, for the
equal benefit and protection of all Bond Owners similarly situated:
(a) by mandamus, suit, action or proceeding, to compel the District and its
members, officers, agents or employees to perform each and every term, provision and covenant
contained in this Resolution and in the Bonds, and to require the carrying out of any or all such
covenants and agreements of the District and the fulfillment of all duties imposed upon it;
(b) by suit, action or proceeding in equity, to enjoin any acts or things which are
unlawful, or the violation of any of the Bond Owners' rights; or
(c) upon the happening of any Event of Default, by suit, action or proceeding in
any court of competent jurisdiction, to require the District and its members and employees to
account as if it and they were the trustees of an express trust.
Section 10.4. Application of Revenues and Other Funds After Default. If an Event of
Default shall occur and be continuing, all taxes and any other funds then held or thereafter received
by the District under any of the provisions of this Resolution shall be applied by the District to the
payment of the principal of and interest then due with respect to the Bonds (upon presentation of the
Bonds to be paid, and stamping thereon of the payment if only partially paid, or surrender thereof if
fully paid) and, if the amount available shall not be sufficient to pay in full any installment or
installments of principal maturing on the same date, and interest due on the same date then to the
payment thereof ratably, according to the amounts due thereon, to the Persons entitled thereto,
without any discrimination or preference
Section 10.5. Absolute Obligation of District. Nothing in this Article X or in any other
provision of this Resolution or in the Bonds contained shall affect or impair the obligation of the
District, which is absolute and unconditional, to pay the principal of and interest on the Bonds to the
599137.3\22608.0004 23
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respective Owners of the Bonds at their respective dates of maturity, or upon call for redemption, as
herein provided, out of the assets herein pledged therefor and received by the District, or affect or
impair the right of such Owners, which is also absolute and unconditional, to enforce such payment
by virtue of the contract embodied in the Bonds.
Section 10.6. Termination of Proceedings. In case any proceedings taken by any one or
more Bond Owners on account of any Event of Default shall have been discontinued or abandoned
for any reason or shall have been determined adversely to the Bond Owners, then in every such case
the District, the Bond Owners. subject to any determination in such proceedings, shall be restored to
their former positions and rights hereunder, severally and respectively, and all rights, remedies,
powers and duties of the District and the Bond Owners shall continue as though no such proceedings
had been taken.
Section 10.7. Remedies Not Exclusive. No remedy herein conferred upon or reserved to the
Owners of the Bonds is intended to be exclusive of any other remedy or remedies, and each and
every such remedy, to the extent permitted by law, shall be cumulative and in addition to any other
remedy given hereunder or now or hereafter existing at law or in equity or otherwise.
Section 10.8. No Waiver of Default. No delay or omission of any Owner of the Bonds to
exercise any right or power arising upon the occurrence of any default shall impair any such right or
power or shall be construed to be a waiver of any such default or an acquiescence therein; and every
power and remedy given by this Resolution to the Paying Agent or to the Owners of the Bonds may
be exercised from time to time and as often as may be deemed expedient.
ARTICLE XI
MISCELLANEOUS
Section 1 1.1. Successor Is Deemed Included in All References to Predecessor. Whenever
in this Resolution either the District or the Paying Agent is named or referred to, such reference shall
be deemed to include the successors or assigns thereof, and all the covenants and agreements in this
Resolution contained by or on behalf of the District or the Paying Agent shall bind and inure to the
benefit of the respective successors and assigns thereof whether so expressed or not.
Section 11.2. Limitation of Rights to Parties and Bond Owners. Nothing in this Resolution
or in the Bonds expressed or implied is intended or shall be construed upon, or to give or grant to,
any Person or entity, other than the District, the Paying Agent, the District and the Owners of the
Bonds, any legal or equitable right, remedy or claim under or in respect of this Resolution or any
covenant, condition or provision therein or herein contained; and all such covenants, conditions and
provisions are and shall be held to be for the sole and exclusive benefit of the District, the Paying
Agent, the District and the Owners of the Bonds.
Section 11.3. Waiver of Notice; Requirement of Mailed Notice. Whenever in this
Resolution the giving of notice by mail or otherwise is required, the giving of such notice may be
waived in writing by the Person entitled to receive such notice and in any such case the giving or
receipt of such notice shall not be a condition precedent to the validity of any action taken in reliance
upon such waiver. Whenever in this Resolution any notice shall be required to be given by mail,
599137.3\22608.0004 24
• •
such requirement shall be satisfied by the deposit of such notice in the United States mail, postage
contained in this Resolution or in the Bonds shall for any reason be held to be invalid, illegal or
unenforceable in any respect, then such provision or provisions shall be deemed severable from the
remaining provisions contained in this Resolution and such invalidity, illegality or unenforceability
shall not affect any other provision of this Resolution, and this Resolution shall be construed as if
such invalid or illegal or unenforceable provision had never been contained herein. The District
hereby declares that it would have entered into this Resolution and each and every other Section,
paragraph, sentence, clause or phrase hereof and authorized the issuance of the Bonds pursuant
thereto irrespective of the fact that any one or more Sections, paragraphs, sentences, clauses or
phrases of this Resolution may be held illegal, invalid or unenforceable.
first class mail.
Section I I.4. Destruction of Bonds. Whenever in this Resolution provision is made for th
e
cancellation by the Paying Agent and the delivery to the District of any Bonds, the Paying Agent
may, upon the Written Request of the District, in lieu of such cancellation and delivery, destroy such
Bonds (in the presence of an officer of the District, if the District shall so require) as may be allowe
d
by law, and deliver a certificate of such destruction to the District if so requested.
prepaid, by Section 11.5. Severability of Invalid Provisions. If any one or more of the provisions
Section 11.6. Effect of Master Resolution. Except as otherwise provided in this Resolution,
every term and condition contained in the Master Resolution, as amended, shall apply to this
Resolution and the Series C Bonds with the same force and effect as if the same were herein set forth
at length, with such omissions, variations and modifications thereof as may be appropriate to make
the same conform to this Resolution. This Resolution and all the term sand provisions herein
contained shall form part of the Master Resolution as fully and with the same effect as if all such
terms and provisions had been set forth in the Master Resolution.
Section 11.7. Notices. All notices or communications herein required or permitted to be
given to the District or the Paying Agent shall be in writing and shall be deemed to have been
sufficiently given or served for all purposes by being delivered or sent by telecopy or by being
deposited, postage prepaid, in a post office letter box, addressed as follows:
If to the District: Yorba Linda Water District
P.O. Box 309
Yorba Linda, CA 92885-0309
Attention: General Manager
599137.3\-)2608.0004 25
• •
If to the Paying Agent: U.S. Bank Trust National Association
550 S. Hope Street, Suite 500
Los Angeles, CA 90071
Attention: Corporate Trust Department
Fax: (213) 533-8777
If to Ambac Assurance Ambac Assurance Corporation
One State Street Plaza
New York, New York 10004
Attention: Surveillance Department
Section 11.8. Evidence of Rights of Bond Owners. Any request, consent or other
instrument required or permitted by this Resolution to be signed and executed by Bond Owners may
be in any number of concurrent instruments of substantially similar tenor and shall be signed or
executed by such Bond Owners in person or by an agent or agent duly appointed in writing. Proof of
the execution of any such request, consent or other instrument or of a writing appointing any such
agent, or of the holding by any person of Bonds transferable by delivery, shall be sufficient for any
purpose of this Resolution and shall be conclusive in favor of the Paying Agent and the District if
made in the manner provided in this Section.
The fact and date of the execution by any Person of any such request, consent or other
instrument or writing may be proved by the certificate of any notary public or other officer of any
jurisdiction, authorized by the laws thereof to take acknowledgments of deeds, certifying that the
Person signing such request, consent or other instrument acknowledged to him the execution thereof,
or by an affidavit of a witness of such execution duly sworn to before such notary public or other
officer.
The ownership of registered Bonds shall be proved by the Registration Books.
Any request, consent, or other instrument or writing of the Owner of any Bond shall bind
every future Owner of the same Bond and the Owner of every Bond issued in exchange therefor or in
lieu thereof, in respect of anything done or suffered to be done by the Paying Agent or the District in
accordance therewith or reliance thereon.
Section 11.9. Disqualified Bonds. In determining whether the Owners of the requisite
aggregate principal amount of Bonds have concurred in any demand, request, direction, consent or
waiver under this Resolution, Bonds which are known by the Paying Agent to be owned or held by
or for the account of the District or the District, or by any other obligor on the Bonds, or by any
Person directly or indirectly controlling or controlled by, or under direct or indirect common control
with, the District or the District or any other obligor on the Bonds, shall be disregarded and deemed
not to be Outstanding for the purpose of any such determination. Bonds so owned which have been
pledged in good faith may be regarded as Outstanding for the purposes of this Section if the pledgee
shall establish to the satisfaction of the Paying Agent the pledgee's right to vote such Bonds and that
the pledgee is not a Person directly or indirectly controlling or controlled by, or under direct or
indirect common control with, the District or the District or any other obligor on the Bonds. In case
of a dispute as to such right, any decision by the Paying Agent taken upon the advice of counsel shal I
be full protection to the Paying Agent.
599137.3\22608.0004 26
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Section 11. 10. Monev Held for Particular Bonds. The money held by the Paying Agent for
the payment of the interest and principal with respect to particular Bonds shall, on and after such
date and pending such payment, be set aside on its books and held in trust by it for the Owners of the
Bonds entitled thereto, subject, however, to the provisions of Section 8.4, but without any liability
for interest thereon.
Section 11. 11. Funds and Accounts. Any fund or account required by this Resolution to be
established and maintained by the Paying Agent may be established and maintained in the
accounting records of the Paying Agent, either as a fund or an account, and may, for the purposes of
such records, any audits thereof and any reports or statements with respect thereto, be treated either
as a fund or as an account; but all such records with respect to all such funds and accounts shall at all
times be maintained in accordance with corporate trust standards to the extent practicable, and with
due regard for the requirements of Section 8.4 and for the protection of the security of the Bonds and
the rights of every Owner thereof.
Section 11.12. Payment on Non-Business Days. In the event any payment is required to be
made hereunder on a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day.
Section 1 1.13. Waiver of Personal Liability. No member, officer, agent or employee of the
District shall be individually or personally liable for the payment of the principal of or premium or
interest on the Bonds or be subject to any personal liability or accountability by reason of the
issuance thereof; but nothing herein contained shall relieve any such member, officer, agent or
employee from the performance of any official duty provided by law or by this Resolution.
Section 1 1.14. Execution in Several Counterparts. This Resolution 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 District and the Paying Agent shall
preserve undestroyed, shall together constitute but one and the same instrument.
Section 1 1.15. Governing Laws. This Resolution shall be governed by and construed in
accordance with the laws of the State of California.
Section 1 1.16. Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the District to the Paying Agent to take any action under this Resolution, the District
shall furnish to the Paying Agent:
(a) a certificate of the District stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Resolution relating to the proposed action have
been compiled with; and
(b) an opinion of Bond Counsel stating that, in the opinion of such Bond
Counsel, all such conditions precedent have been complied with.
Section 11.17. Statements Required in Certificate or Opinion. Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Resolution shall
include:
599137.3\22608.0004 27
• •
(a) a statement that the person making such certificate or opinion has read such
covenant or condition:
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or opinion are
based;
(c) a statement that, in the opinion of such person they have made such
examination or investigation as is necessary to enable them to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
Section 11.18. Instructions to Paying Agent. An Authorized Representative is hereby
instructed to notify the Paying Agent, as provided in Section 3 of the Master Resolution, of the
District's election to redeem on November 1, 1998 the outstanding Series A Bonds and the 1987
Refunding Bonds due on and after May 1, 1999.
ARTICLE XII
PROVISIONS RELATING TO MUNICIPAL BOND INSURANCE
Section 12.1. Consent ofAmbac Assurance. The following consent provisions shall be
applicable as long as the Municipal Bond Issuance is in effect.
(a) Any provisions of this Resolution expressly recognizing or granting rights in
or to Ambac Assurance may not be amended in any manner which affects the rights of Ambac
Assurance hereunder without the prior written consent of Ambac Assurance.
(b) Unless otherwise provided in this Section, Ambac Assurance's consent shall
be required in addition to Bond Owner consent, when required, for the following purposes:
(i) execution and delivery of any supplemental Resolution or any amendment, supplement or change
to or modification of the Resolution, etc. (ii) removal of the Paying Agent and selection and
appointment of any successor paying agent; and (iii) initiation or approval of any action not
described in (i) or (ii) above which requires Bond Owner consent.
(c) Any reorganization or liquidation plan with respect to the District must be
acceptable to Ambac Assurance. In the event of any reorganization or liquidation, Ambac
Assurance shall have the right to vote on behalf of all Bond Owners who hold Ambac Assurance-
insured bonds absent a default by Ambac Assurance under the applicable Municipal Bond Insurance
Policy insuring such Bonds.
(d) Anything in this Resolution to the contrary notwithstanding, upon the
occurrence and continuance of an event of default as defined herein, Ambac Assurance shall be
entitled to control and direct the enforcement of all rights and remedies granted to the Bond Owners
for the benefit of the Bond Owners under this Resolution pursuant to state law.
599137.3\22608.0004 28
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Section 12.2. Information to be Given to Ambac Assurance. While the Municipal Bond
Insurance Policy is in effect, the District shall furnish to Ambac Assurance (to the attention of the
Surveillance Department, unless otherwise indicated):
(a) as soon as practicable after the filing thereof, a copy of any financial
statement of the District and a copy of any audit and annual report of the District at no cost to
Ambac;
(b) a copy of any notice to be given to the registered owners of the Bonds,
including, without limitation, notice of any redemption of or defeasance of Bonds, and any
certificate rendered pursuant to this Resolution relating to the security for the Bonds, at no cost to
Ambac; and
(c) such additional information it may reasonably request.
(d) The District shall notify Ambac Assurance of any failure of the District to
provide relevant notices, certificates, etc.
The District will permit Ambac Assurance to discuss the affairs, finances and accounts of the
District or any information Ambac Assurance may reasonably request regarding the security for the
Bonds with appropriate officers of the District. The District will permit Ambac Assurance to have
access to and make copies of all books and records relating to the Bonds at any reasonable time.
Ambac Assurance shall have the right to direct an accounting at the District's expense, and
the District's failure to comply with such direction within thirty (30) days after receipt of written
notice of the direction from Ambac Assurance shall be deemed a default hereunder; provided,
however, that if compliance cannot occur within such period, then such period will be extended so
long as compliance is begun within such period and diligently pursued, but only if such extension
would not materially adversely affect the interests of any registered owner of the Bonds.
Notwithstanding any other provision of this Resolution, the District shall immediately notify
Ambac Assurance if at any time there are insufficient moneys to make any payments of principal
and/or interest as required and immediately upon the occurrence of any event of default hereunder.
Ambac Assurance shall be included as party to be notified of any notices given pursuant to
the Continuing Disclosure Agreement.
Section 12.3. Provision relating to Defeasance. Notwithstanding anything herein to the
contrary, in the event that the principal and/or interest due on the Bonds shall be paid by Ambac
Assurance Corporation pursuant to the Municipal Bond Insurance Policy, the Bonds shall remain
Outstanding for all purposes, not be defeased or otherwise satisfied and not be considered paid by
the District, and the assignment and pledge of the revenues and taxes as provided in Section 5.1
hereof and all covenants, agreements and other obligations of the District to the registered owners
shall continue to exist and shall run to the benefit of Ambac Assurance, and Ambac Assurance shall
be subrogated to the rights of such registered owners.
599137.3\22608.0004 29
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Section 12.4. Payment Procedure Pursuant to the Municipal Bond Insurance Policy. As
long as the bond insurance shall be in full force and effect, the District and any Paying Agent agree
to comply with the following provisions:
(a) At least one (1) day prior to all Interest Payment Dates the Paying Agent, if
any, will determine whether there will be sufficient funds in the funds and accounts of the Paying
Agent to pay the principal of or interest on the Bonds on such Interest Payment Date. If the Paying
Agent determines that there will be insufficient funds in such funds or accounts, the Paying Agent, if
any, shall so notify Ambac Assurance. Such notice shall specify the amount of the anticipated
deficiency, the Bonds to which such deficiency is applicable and whether such Bonds will be
deficient as to principal or interest, or both. If the Paying Agent, has not so notified Ambac
Assurance at least one (1) day prior to an Interest Payment Date, Ambac Assurance will make
payments of principal or interest due on the Bonds on or before the first (I") day next following the
date on which Ambac Assurance shall have received notice of nonpayment from the Paying Agent,
if any.
(b) the Paying Agent, if any, shall, after giving notice to Ambac Assurance as
provided in (a) above, make available to Ambac Assurance and, at Ambac Assurance's direction, to
the United States Trust Company of New York, as insurance trustee for Ambac Assurance or any
successor insurance trustee (the "Insurance Trustee"), the registration books of the District
maintained by the Paying Agent, if any, and all records relating to such funds and accounts.
(c) the Paying Agent, if any, shall provide Ambac Assurance and the Insurance
Trustee with a list of registered owners of Bonds entitled to receive principal or interest payments
from Ambac Assurance under the terms of the Municipal Bond Insurance Policy, and shall make
arrangements with the Insurance Trustee (i) to mail checks to the registered owners of Bonds entitled
to receive full or partial interest payments from Ambac Assurance and (ii) to pay principal upon
Bonds surrendered to the Insurance Trustee by the registered owners of Bonds entitled to receive full
or partial principal payments from Ambac Assurance.
(d) the Paying Agent, if any, shall, at the time it provides notice to Ambac
Assurance pursuant to (a) above, notify registered owners of Bonds entitled to receive the payment
of principal or interest thereon from Ambac Assurance (i) as to the fact of such entitlement, (ii) that
Ambac Assurance will remit to them all or a part of the interest payments next coming due upon
proof of Bond Owner entitlement to interest payments and delivery to the Insurance Trustee, in form
satisfactory to the Insurance Trustee, of an appropriate assignment of the registered owner's right to
payment, (iii) that should they be entitled to receive full payment of principal from Ambac
Assurance, they must surrender their Bonds (along with an appropriate instrument of assignment in
form satisfactory to the Insurance Trustee to permit ownership of such Bonds to be registered in the
name of Ambac Assurance) for payment to the Insurance Trustee, and not the Trustee or Paying
Agent, if any, and (iv) that should they be entitled to receive partial payment of principal from
Ambac Assurance, they must surrender their Bonds for payment thereon first to the Paying Agent,
who shall note on such Bonds the portion of the principal paid by the Paying Agent, if any, and then,
along with an appropriate instrument of assignment in form satisfactory to the Insurance Trustee, to
the Insurance Trustee, which will then pay the unpaid portion of principal.
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(e) in the event that the Paying Agent, if any, has notice that any payment of
principal of or interest on a Bond which has become Due for Payment and which is made to a Bond
Owner by or on behalf of the District has been deemed a preferential transfer and theretofore
recovered from its registered owner pursuant to the United States Bankruptcy Code by a trustee in
bankruptcy in accordance with the final, nonappealable order of a court having competent
jurisdiction, the Paying Agent, if any, shall, at the time Ambac Assurance is notified pursuant to (a)
above, notify all registered owners that in the event that any registered owner's payment is so
recovered, such registered owner will be entitled to payment from Ambac Assurance to the extent of
such recovery if sufficient funds are not otherwise available, and the Paying Agent, if any, shall
furnish to Ambac Assurance its records evidencing the payments of principal of and interest on the
Bonds which have been made by the Paying Agent, if any, and subsequently recovered from
registered owners and the dates on which such payments were made.
(f) in addition to those rights granted Ambac Assurance under this Resolution,
Ambac Assurance shall, to the extent it makes payment of principal of or interest on Bonds, become
subrogated to the rights of the recipients of such payments in accordance with the terms of the
Municipal Bond Insurance Policy, and to evidence such subrogation (i) in the case of subrogation as
to claims for past due interest, the Paying Agent, if any, shall note Ambac Assurance's rights as
subrogee on the registration books of the Issuer maintained by the Paying Agent, if any, upon receipt
from Ambac Assurance of proof of the payment of interest thereon to the registered owners of the
Bonds, and (ii) in the case of subrogation as to claims for past due principal, the Paying Agent, if
any, shall note Ambac Assurance's rights as subrogee on the registration books of the Issuer
maintained by the Paying Agent, if any, upon surrender of the Bonds by the registered owners
thereof together with proof of the payment of principal thereof.
Section 12.5. Ambac as a Thircl Parry Beneficiary. To the extent that this Resolution
confers upon or gives or grants to Ambac any right, remedy or claim under or by reason of this
Resolution, Ambac is hereby explicitly recognized as being a third-party beneficiary hereunder and
may enforce any such right remedy or claim conferred, given or granted hereunder.
599137.3\22608.0004 31
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PASSED AND ADOPTED this 17th day of September, 1998 by the following called vote:
AYES:
Fox, Scanlin, Armstrong, Beverage, and Korn
NOES:
None
ABSENT:
None
ABSTAIN:
None
[SEAL]
' -~w
Sterling L. Fox, President
Yorba Linda Water District
ATTEST•
WiI lam J. ertson' Secretary and General Manager
Yorba Linda Water District
599137.3\22608.0004 32
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