HomeMy WebLinkAboutInstallment Purchase Agreement 2004 8/24/04
INSTALLMENT PURCHASE AGREEMENT
by and between
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
and
TRUCKEE DONNER PUBLIC UTILITY DISTRICT FINANCING CORPORATION
Dated as of November 1, 2004
relating to
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
REVENUE CERTIFICATES OF PARTICIPATION, SERIES 2004
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DOCSSF/43 3 72v6/22 925-0011
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INSTALLMENT PURCHASE AGREEMENTof
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This INSTALLMENT PURCHASE AGREEMENT, made and entered into public
November 1, 2004 by and between TRUCKEE DONNER PUBLIC UTILITY DISTRICT, a p
utility district duly organized and existing under and by virtue of the laws of the State of California
(the "District"), and TRUCKEE DONNER PUBLIC UTILITY DISTRICT FINANCING
corporation duly organized and existing under and by
CORPORATION, a nonprofit public benefit
virtue of the laws of the State of California(the"Corporation").
WITNESSETH:
WHEREAS, the District proposes to finance certain equipment and facilities as described in
Exhibit B hereto (the"Project'); s
WHEREAS,the Corporation has agreed to assist the District in financing the Project;
WHEREAS, the District is authorized by Division 7 of the Public Utilities Code of the State
of California, including but not limited to Section 16431 to dispose of and acquire property;
WHEREAS, the District and the Corporation have duly authorized the execution of this
Agreement;
d things required by law to exist to have happened and toWHEREAS, all acts, conditions an
have been performed precedent to and in connection with the execution and delivery of this
Installment Purchase Agreement do exist, have happened and have been performed in regular and
due time, form and manner as required by law, and the parties hereto are now duly authorized to
execute and enter into this Installment Purchase Agreement;
NOW, THEREFORE, IN CONSIDERATION OF THESE PREMISES AND OF THE
MUTUAL AREEMENS ER
VALUABLEGCONSIDETRA IODN, THE NPARTI SON D
HERETO DO HEREBY FOR AGREE
FOLLOWS:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Unless the context otherwise requires, the terms defined in this
section shall for all purposes hereof and of any amendment hereof or supplement hereto and of any
report or other document mentioned herein or therein have the meanings defined herein, the
following definitions to be equally applicable to both the singular and plural forms of any of the
defined herein herein. Unless the context shall have the meanings asctherwise ribed bed theretouires, all in the Trust
1talized Agrementns used herein and not
A rnnntanfs Report
The term "Accountant's Report" means a report signed by an Independent Certified Public
Accountant.
DOCSSF/43372v6/22925-001 i
Acquisition Fund
The term "Acquisition Fund" means the fund by that name established pursuant to
Section 3.5 hereof.
A reement
The term "Agreement" means this Agreement, by and between the District and the
Corporation, dated as of November 1, 2004, as originally executed and as it may from time to time be
amended or supplemented in accordance herewith.
Bonds
s" means all
onds, notes or similar
The
h ` ric t obligations
t uparity
i of the District, the and interest on which are payable from Net Reut venuesona pr tyththe Installment Payments.
Broadband Service
The term `Broadband Service" means the services made available or provided by the
Broadband System.
Broadba�em
The tern "Broadband System" means all properties and assets, real and personal, tangible
and intangible, of the District's broadband utility now or hereafter existing, used or pertaining to
providing broadband services (including but not limited to data, voice, video and security services),
including all additions, extensions, expansions, improvements and betterments thereto; provided,
however, that to the extent the District is not the sole owner of an asset or property or to the extent
that an asset or property is used in part for the above described purposes, only the District's
broadband utility ownership interest in such asset or property or only the part of the asset or property
so used for broadband purposes shall be considered to be part of the Broadband System.
Business_ _-_Day
The tern `Business Day"means a day other than: a Saturday or Sunday or a day on which(i)
banks located in the city in which the principal corporate trust office of the Trustee is located are not
required or authorized to remain closed, and (ii) on which The New York Stock Exchange is not
closed.
Certificates
The term "Certificates" means the $ — aggregate principal amount of Truckee
Donner Public Utility District Revenue Certificates of Participation, Series 2004, executed and
delivered on behalf of the District and at any time Outstanding pursuant to the Trust Agreement.
Contracts
The tern "Contracts" means this Installment Purchase Agreement and all contracts of the t
District the Parity Installment Payments under which are payable from Net Revenues on a parity with
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the obligations of the District to make payments under this Agreement, excluding contracts entered
into for operation and maintenance of the Broadband System,
Corporation
The tern "Corporation" means the Truckee Donner Public Utility District Financing
Corporation, a nonprofit public benefit corporation duly organized and existing under and by virtue
of the laws of the State of California.
Date off operation
ent Parity
The term "Date of Operation" means, with respect to any uncomplPro ect wted ill lnhave been
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Project the estimated date by which such uncompleted component Parity J
completed and in the opinion of an engineer, will be ready for operation by or on behalf of the
District.
Debt Service
s
means, for any Fiscal Year,the surn of:
The term"Debt Service"
(1) the interest on all outstanding Bonds,payable during such Fiscal Year(except to the
extent that such interest is capitalized);
(2) that portion of the principal amounts of all outstanding serial Bonds maturing in such
Fiscal Year;
(3) that portion of the principal amounts of all outstanding tenn Bonds required to be
prepaid or paid in such Fiscal Year; and
(4) that portion of the Fiscal Year(except torthe extent ty Installment
the interest evidenced and represented thereby is
capitalized);
provided that, as to any such Bonds or Parity Installment Payments bearing or comprising interest at
other than a fixed rate,the rate of interest used to calculate Debt Service shall, for all purposes,be
assumed to bear interest at a fixed rate equal to the higher of
the actual ra on the date of calculation, or(r) Payments are not yet outstanding,the l r e Bonds
nitialra (if shed and binding),
if the Bonds or Parity Installment Payments have been outstanding for at least
twelve months,the average rate over the twelve months immediately
preceding the date of calculation, and
(1)if interest on the Bonds or Parity Installment Payments is excludable from
gross income under the applicable provisions of the Code,the most recently
published Bond Buyer 25 Bond Revenue Index(or comparable index if no
longer published)plus fifty (50)basis points, or(2) if interest is not so
excludable,the interest rate on direct United Sates Treasury obligations with
comparable maturities plus fifty(50)basis points;
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and provided further that if any series or issue of such Bonds or Parity Installment Payments have
twenty-five percent(25%)or more of the aggregate principal amount of such series or issue due in
any one year, Debt Service shall be determined for the Fiscal Year of determination as if the
Principal of and interest on such series or issue of such Bonds or Parity Installment Payments were
being paid from the date of incurrence thereof in substantially equal annual amounts over a period of
thirty(30)years from the date of calculation;
and provided further that, as to any such Bonds or Parity Installment Payments or portions thereof
bearing no interest but which are sold at a discount and which discount accretes with respect to such
Bonds or Parity Installment Payments or portions thereof, such accreted discount shall be treated as
interest in the calculation of Debt Service;
and provided further that the amount on deposit in a debt service reserve fund on any date of
calculation of Debt Service shall be deducted from the amount of principal due at the final maturity
of the Bonds and Contracts for which such debt service reserve fund was established and in each
preceding year until such amount is exhausted;
and provided further that Debt Service shall be reduced by an amount equal to earnings on any
reserve find (including the Reserve Fund) transferred to the corresponding debt service fund
(including the Interest Fund created under the Trust Agreement),
District
The term "District' means Truckee Donner Public Utility District, a public utility district,
duly organized and existing under and by virtue of the laws of the State of California, including the
Law.
Event of
The term "Event of Default'means an event described in Section 8.1.
Fiscal Year
The term "Fiscal Year" means the period beginning on January I of each year and ending on
the last day of December of the next succeeding year, or any other twelve-month period selected and
designated as the official Fiscal Year of the District.
Independent Certified Public Accountant
The term "Independent Certified Public Accountant' means any firm of certified public
accountants appointed by the District, each of whom is independent of the District and the
Corporation pursuant to the Statement on Auditing Standards No. I of the American Institute of
Certified Public Accountants.
Independent Financial Consultant r
The term "Independent Financial Consultant' means a financial consultant or firm of such
consultants appointed by the District, and who, or each of whom: (1) is in fact independent and not
under domination of the District; (2)does not have any substantial interest, direct or indirect, with the
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District; and (3)is not connected with the District as an officer or employee thereof, but who may be
regularly retained tomake reports thereto.
Installment Pa ment Date- Parit Installment payment Date
The term "Installment Payment Date" means the fifth day prior to each Interest Payment #
hen the preceding Business Day. The
Date, or if said date is not a Business Day, t term "Panty
Installment Payment Date" means each date on which Parity Installment Payments are scheduled to
be paid by the District under and pursuant to any Contract.
Installment Pa ments- Parit Installment Pa ments
s
rincipal
The term paid by the Districttundermeans
andthe
pursuant hereto.
The Payments
term "Parity Installment
and
nstallment Y
scheduled to be p Y
Payments" means the payments of interest and principal scheduled to be paid by the District under
and pursuant to the Contracts.
Interest Payment Date
her I of each year, commencing
The term"Interest Payment Date" means May I and Novem
May 1,2005.
Law
The term "Law" means the Public Utility District Act of the State of California (being
Division 7 of the Public Utilities Code of the State of California, as amended) and all laws
amendatory thereof or supplemental thereto.
Mana er
The term "Manager" means the General Manager of the District, or any other person
designated by the General Manager to act on behalf of the General Manager.
Net Proceeds
The term "Net Proceeds" means, when used with respect to any casualty insurance or
condemnation award, the proceeds from such insurance or condemnation award remaining after
payment of all expenses (including attorneys fees) incurred in the collection of such proceeds.
Net Ries
The term"Net Revenues" means, for any Fiscal Year
> the Revenues for such Fiscal Year less
the operation and Maintenance Costs for such Fiscal Year.
Operation and C and Mai
Maintenance Costs
ntenance Costs" means (1) costs spent or incurred for
The term -Operation
maintenance and operation of the Broadband System calculated the expenses accordance
of management and
accepted accounting principles, including (among other things)
repair and other expenses necessary to maintain and preserve the Broadband System in good repair
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DOCSSF/43372v6/22925-001 t
and working order, and including administrative costs of the District, salaries and wages of
employees, payments to any public employee retirement plan, overhead, insurance, taxes (if any),
fees of auditors, accountants, attorneys or engineers and insurance premiums, (2) all other
reasonable and necessary costs of the District or charges (other than Debt Service) required to be
paid by it to comply with the terms of this Agreement or any other Contract or of any resolution or
indenture authorizing the issuance of any Bonds or of such Bonds, and any franchise fees payable by
the District with respect to the Broadband System and (3) all costs paid by the District under the
Service Agreement, dated 2004, between the District and Eagle Broadband,
Inc., and all cases relating to allocations and/or agreements between the District's broadband utility
and other utilities of the District to pay costs similar to those described in this definition, but
excluding in all cases (a) depreciation, replacement and obsolescence charges or reserves therefor,
(b) amortization of intangibles or other bookkeeping entries of a similar nature, (c) costs of capital
additions, replacements, betterments, extensions or improvements to the Broadband System which
under generally accepted accounting principles are chargeable to a capital account or to a reserve for
depreciation, and (d)charges for the payment of Bonds or Contracts.
Project; Parity Project
The term "Project"means the equipment and facilities of the Broadband System described in
Exhibit B hereto. The term "Parity Project" means any additions, betterments, extensions or
improvements designated by the Board of Directors of the District as a Parity Project, the acquisition
and construction of which is to be paid for with the proceeds of any Contracts or Bonds.
Purchase Price
The term "Purchase Price" means the principal amount plus interest thereon owed by the
District to the Corporation under the terms hereof as provided in Section 4.1.
Reserve Requirement
The term "Reserve Requirement" means, initially $ and thereafter shall be equal
to the lesser of such amount and maximum annual Installment Payments in the current or any future
Fiscal Year.
Revenue Fund
The term "Revenue Fund" means all revenue accounts relating to the Broadband System
maintained by the District as of the date of this Agreement, together with any revenue account
created after the date of this Agreement and designated by the Treasurer of the District as a part of
the Revenue Fund.
Revenues
The term "Revenues" means all income, rents, rates, fees, charges and other moneys derived
from the ownership or operation of the Broadband System, including, without limiting the generalit of the foregoing, y
(1) all income, rents, rates, fees, charges or other moneys derived from providing
broadband services (including but not limited to data, voice, video and
security services), and commodities sold, furnished or supplied through the
DOCSSF/43372v6/22925-001 I 6 -
facilities of the Broadband System including allocable to the Broadband
System,plus
(2) except as set forth in(z)below,taxes or assessments, if any,the imposition of
which is permitted by law, and
(3) the earnings on and income derived from the investment of the amounts
described in clauses (1) and (2) above and the general unrestricted funds of
the District,
but excluding in all cases �#
(y) customers' deposits or any other deposits subject to refund until such �
deposits have become the property of the District,and
(z) reserves, surcharges,taxes or assessments specifically pledged to the
payment of debt service with respect to notes, bonds or other
obligations of the District and which reserves, taxes or assessment are
not available for any other purpose of the District.
Trust Agreement
The term "Trust Agreement" means the Trust Agreement, dated as of November 1, 2004, by
and between the District, the Corporation and the Trustee, relating to the Certificates, as originally
executed and as it may from time to time be amended or supplemented in accordance with its terms.
Trustee
The term "Trustee" means BNY Western Trust Company, acting in its capacity as Trustee
under and pursuant to the Trust Agreement, and its successors and assigns.
Written Consent of the Corporation or District Written Order of the Corporation or District Written
Request of the Corporation or District Written Requisition of the Corporation or District
The terms "Written Consent of the Corporation or District," "Written Order of the
Corporation or District," "Written Request of the Corporation or District," and "Written Requisition
of the Corporation or District' mean, respectively, a written consent, order, request or requisition
signed by or on behalf of(i) the Corporation by its President or Vice President or a the District by
the President of its Board of Directors or its General Manager or by the Secretary of its Board of
Directors or by any two persons (whether or not officers of the Board of Directors of the District)
who are specifically authorized by resolution of the District to sign or execute such a document on its
behalf.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations by the District. The District makes the following
representations:
(a) The District is a public utility district duly organized and existing under and
pursuant to the laws of the State of California.
(b) The District has full legal right, power and authority to enter into this
Agreement and carry out its obligations hereunder, to carry out and consummate all other
transactions contemplated by this Agreement, and the District has complied with the provisions of
the Law in all matters relating to such transactions.
(c) By proper action, the District has duly authorized the execution, delivery and
due performance of this Agreement.
(d) The District will not take or, to the extent within its power,permit any action
to be taken which results in the interest paid for the installment purchase of the Project under the
terms of this Agreement being included in the gross income of the Certificate Owners or its assigns
for purposes of federal or State of California income taxation.
(e) The District has determined that it is necessary and proper for District uses
and purposes within the terms of the Law that the District finance the Project in the manner provided
for in this Agreement.
Section 2.2. Representations and Warranties by the Corporation. The Corporation makes
the following representations and warranties:
(a) The Corporation is a nonprofit public benefit corporation duly organized and
in good standing under the laws of the State of California, has full legal right, power and authority to
enter into this Agreement and to carry out and consummate all transactions contemplated by this
Agreement and by proper action has duly authorized the execution and delivery and due performance
of this Agreement.
(b) The execution and delivery of this Agreement and the consummation of the
transactions herein contemplated will not violate any provision of law, any order of any court or
other agency of government, or any indenture, material agreement or other instrument to which the
Corporation is now a party or by which it or any of its properties or assets is bound, or be in conflict
with, result in a breach of or constitute a default (with due notice or the passage of time or both)
under any such indenture, agreement or other instrument, or result in the creation or imposition of
any prohibited lien, charge or encumbrance of any nature whatsoever upon any of the properties or
assets of the Corporation.
(c) The Corporation will not take or permit any action to be taken which results
in interest paid for the installment purchase of the Project under the terms of this Agreement being
included in the gross income of the Certificate Owners or its assigns for purposes of federal or State
of California income taxation.
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ARTICLE III x
SALE AND PURCHASE OF THE PROJECT
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Section 3.1. Purchase and Sale of the Project. In consideration for the Installment
Payments as set forth in Section 4.2, the Corporation agrees to sell, and hereby sells, to the District,
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and the District agrees to purchase, and hereby purchases, from the Corporation, the Project at the
purchase price specified in Section 4.1 hereof and otherwise in the manner and in accordance with
the provisions of this Agreement. f
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Section 3.2. Title. All right, title and interest in each component of the Project shall vest
in the District immediately upon execution and delivery of this Agreement.
Section 3.3. Acquisition and Construction of the Project. The Corporation hereby agrees
to cause the Project, and any additions or modifications thereto to be constructed, acquired or
installed by the District as its agent, and the District shall enter into contracts and provide for, as
agent of the Corporation, the complete construction, acquisition and installation of the Project. The
District hereby agrees that it will cause the construction, acquisition and installation of the Project to
be diligently performed after the deposit of funds pursuant to Section 3.2 of the Trust Agreement,
upon satisfactory completion of design work and compliance with CEQA and approval by the Board
of Directors of the District, unforeseeable delays beyond the reasonable control of the District only
excepted. It is hereby expressly understood and agreed that the Corporation shall be under no
liability of any kind or character whatsoever for the payment of any cost of the Project and that all
such costs and expenses shall be paid by the District's Broadband System, regardless of whether the
funds deposited in the Acquisition Fund are sufficient to cover all such costs and expenses.
Section 3.4. Chanues to the Project. The District may substitute other improvements for
those listed as components of the Project in Exhibit B hereto,but only if the District first files with
the Corporation and the Trustee a statement of the District:
(a) identifying the improvements to be deleted from such Exhibit and the
improvements to replace such deleted improvements; and
(b) stating that the estimated costs of construction, acquisition and installation of
the substituted improvements are not less than such costs for the improvements previously planned.
Section 3.5. Acquisition Fund. There is hereby established with the District the
Acquisition Fund. The moneys in the Acquisition Fund shall be held by the District in trust shall be
applied to the payment of the costs of acquisition, installation, development and construction of the
Project (including reimbursement of related start-up costs previously advanced by the District), and
of expenses incidental thereto, including Delivery Costs. Before any payment is made from the
Acquisition Fund by the Treasurer of the District, the Manager shall cause to be filed with the
Treasurer of the District a Written Requisition of the District in the form set forth in Exhibit C hereto.
Upon receipt of each such Written Requisition, the Treasurer of the District will pay the
amount set forth in such Written Requisition as directed by the terms thereof. The Treasurer of the
District need not make any such payment if it has received notice of any lien, right to lien or
attachment upon, or claim affecting the right to receive payment of, any of the moneys to be so paid,
which has not been released or will not be released simultaneously with such payment.
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DOCSSF/43372v6/22925-0011
When the Project shall have been constructed, installed, developed or acquired in accordance
with the Installment Purchase Agreement, a statement of the District stating the fact and date of such
acquisition, installation, development, construction and acceptance and stating that all of such costs
of acquisition and incidental expenses have been determined and paid (or that all of such costs and
expenses have been paid less specified claims which are subject to dispute and for which a retention
in the Acquisition Fund is to be maintained in the full amount of such claims until such dispute is
resolved), shall be delivered to the Treasurer of the District and the Trustee by the District. Upon the
receipt of such statement, the Treasurer of the District shall transfer any remaining balance in the
Acquisition Fund not needed for Acquisition Fund purposes (but less the amount of any such
retention which amount shall be certified to the Treasurer of the District by the District) to the
Trustee which shall transfer such amounts first to the Reserve Fund until the amount therein equals
the Reserve Requirement, and thereafter to the Certificate Payment Fund for prepayment of
Certificates in accordance with Section 4.1(e)of the Trust Agreement.
ARTICLE IV
INSTALLMENT PAYMENTS
Section 4.1. Purchase Price.
( ) The Purchase
the sum of the pr ncipal a mount Priceb
unt of the District's oblige paid ations ns y the hereunder plus strict dthe interest to accrue on
the unpaid balance of such principal amount from the effective date hereof over the term hereof,
subject to prepayment as provided in Article VIL
(b) The principal amount of the payments to be made by the District hereunder is
set forth in Exhibit A hereto.
(c) The interest to accrue on the unpaid balance of such principal amount is as
specified in Section 4.2 and Exhibit A hereto, and shall be paid by the District as and constitute
interest paid on the principal amount of the District's obligations hereunder.
Section 4.2. Installment Payments. The District shall, subject to any rights of prepayment
provided in Article VII, pay the Corporation the Purchase Price in installment payments of interest
and principal in the amounts and on the Installment Payment Dates as set forth in Exhibit A hereto.
Each Installment Payment shall be paid to the Corporation in lawful money of the United
States of America. In the event the District fails to make any of the payments required to be made by
it under this section, such payment shall continue as an obligation of the District until such amount
shall have been fully paid; and the District agrees to pay the same with interest accruing thereon at
the rate or rates of interest then applicable to the remaining unpaid principal balance of the
Installment Payments if paid in accordance with their terms.
The obligation of the District to make the Installment Payments from Revenues is absolute
and unconditional, and until such time as the Purchase Price shall have been paid in fidl (or provision
for the payment thereof shall have been made pursuant to Article IX), the District will not
discontinue or suspend any Installment Payments required to be made by it under this section when
due, whether or not the Broadband System or any part thereof is operating or operable, or its use is
suspended, interfered with, reduced or curtailed or terminated in whole or in part, and whether or not
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the Project has been completed, and such payments shall not be subject to reduction whether by s
ional upon the performance or nonperformance by any
offset or otherwise and shall not be condit
party of any agreement for any cause whatsoever.
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ARTICLE V
SECURITY 4
Section 5.1. Pledge of Revenues. All Revenues and all amounts on deposit in the
Revenue Fund are hereby irrevocably pledged to the payment of the Installment Payments as t
provided herein and the Revenues shall not be used for any other purpose while any of the
Installment Payments remain unpaid; provided that out of the Revenues there may be apportioned
such sums for such purposes as are expressly permitted herein. This pledge, together with the pledge
created by all other Contracts and Bonds, shall constitute a lien on Revenues and, subject to #
application of Revenues and all amounts on deposit therein as permitted herein, the Revenue Fund. i
OTHER THAN REVENUES, NO OTHER DISTRICT MONEYS ARE PLEDGED TO THE
PAYMENT OF THE INSTALLMENT PAYMENTS. THE DISTRICT SHALL PAY
INSTALLMENT PAYMENTS SOLELY FROM REVENUES AND IS HEREBY POHIBITED
FROM PAYING INSTAL MENT PAYMENTS FROM ANY OTHER DISTRICT FUNDS OR
MONEYS.
Section 5.2. Allocation of Revenues. In order to carry out and effectuate the pledge and
lien contained herein, the District agrees and covenants that all Revenues shall be received by the
District in trust hereunder and shall be deposited when and as received in a special fund designated as
the "Revenue Fund," which fund includes the accounts described in the definition thereof and which
fund the District agrees and covenants to maintain and to hold separate and apart from other funds so
long as any Contracts or Bonds remain unpaid. Moneys in the Revenue Fund shall be used and
applied by the District as provided in this Agreement.
The District shall, from the moneys in the Revenue Fund,pay all Operation and Maintenance
Costs (including amounts reasonably required to be set aside in contingency reserves for Operation
and Maintenance Costs, the payment of which is not then immediately required) as such Operation
and Maintenance Costs become due and payable. All remaining moneys in the Revenue Fund
thereafter shall be set aside by the District at the following times for the transfer to the following
respective special funds in the following order of priority; and all moneys in each of such funds shall
be held in trust and shall be applied, used and withdrawn only for the purposes set forth in this
Section.
(a) Installment Payments. Not later than each Installment Payment Date, the
District shall, from the moneys in the Revenue Fund, transfer to the Trustee the Installment Payment
due and payable on that Installment Payment Date. The District shall also, from the moneys in the
Revenue Fund, transfer to the applicable trustee for deposit in the respective payment fund, without
preference or priority, and in the event of any insufficiency of such moneys ratably without any
discrimination or preference, any other Debt Service in accordance with the provisions of any Bond
or Contract.
(b) Reserve Funds. On or before each Installment Payment Date the District
shall, from the remaining moneys in the Revenue Fund, thereafter, without preference or priority and
in the event of any insufficiency of such moneys ratably without any discrimination or preference,
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DOCSSFA33720/22925-001 1
transfer to the Trustee for deposit in the Reserve Fund and to the applicable trustee for such other
reserve funds and/or accounts, if any, as may have been established in connection with Bonds or
Contracts other than this Agreement, that sum, if any, necessary to restore the Reserve Fund to an
amount equal to the Reserve Requirement; provided, however, that the District may provide for the
Reserve Fund by means other than cash and Permitted Investments pursuant to Section 5.4 of the
Trust Agreement.
(c) Su>�. Moneys on deposit in the Revenue Fund on each Installment
Payment Date not necessary to make any of the payments required above may be expended by the
District at any time for any purpose permitted by law.
Section 5.3. Additional Contracts and Bonds. The District may at any time execute any
Contract or issue any Bonds, as the case may be,in accordance herewith; provided:
(a) The Net Revenues for the most recent audited Fiscal Year preceding the date
of adoption by the Board of Directors of the District of the resolution authorizing the issuance of
such Bonds or the date of the execution of such Contract, as the case may be, as evidenced by both a
calculation prepared by the District and a special report prepared by an Independent Certified Public
Accountant or an Independent Financial Consultant on such calculation on file with the District, shall
have produced a sum equal to at least one hundred twenty-five percent (125%) of the Debt Service
for such Fiscal Year; and
(b) The Net Revenues for the most recent audited Fiscal Year preceding the date
of the execution of such Contract or the date of adoption by the Board of Directors of the District of
the resolution authorizing the issuance of such Bonds, as the case may be, including adjustments to
give effect as of the first day of such Fiscal Year to increases or decreases in rates and charges for the
Broadband Service approved and in effect as of the date of calculation, as evidenced by both a
calculation prepared by the District and a special report prepared by an Independent Certified Public
Accountant or an Independent Financial Consultant on such calculation on file with the District, shall
have produced a sum equal to at least one hundred twenty-five percent (125%) of the Debt Service
for such Fiscal Year plus the Debt Service which would have accrued on any Contracts executed or
Bonds issued since the end of such Fiscal Year assuming such Contracts had been executed or Bonds
had been issued at the beginning of such Fiscal Year plus the Debt Service which would have
accrued had such Contract been executed or Bonds been issued at the beginning of such Fiscal Year;
and
(c) The estimated Net Revenues for the then current Fiscal Year and for each
Fiscal Year thereafter to and including the first complete Fiscal Year after the latest Date of
Operation of any uncompleted Parity Project to be financed from proceeds of such Contracts or
Bonds, as evidenced by a certificate of the General Manager of the District on file with the District,
including (after giving effect to the completion of all such uncompleted Parity Projects) an allowance
for estimated Net Revenues for each of such Fiscal Years arising from any increase in the income,
rents, fees, rates and charges estimated to be fixed, prescribed or received for Broadband Service and
which are economically feasible and reasonably considered necessary based on projected operations
for such period, as evidenced by a certificate of the Manager on file with the District, shall produce a
sum equal to at least one hundred twenty-five percent (125%) of the estimated Debt Service for each
of such Fiscal Years, after giving effect to the execution of all Contracts and the issuance of all
Bonds estimated to be required to be executed or issued to pay the costs of completing all
uncompleted Parity Projects within such Fiscal Years, assuming that all such Contracts and Bonds
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have maturities, interest rates and proportionate principal repayment provisions similar to the
Contract last executed or then being executed or the Bonds last issued or then being issued for the
purpose of acquiring and constructing any of such uncompleted Parity Projects.
(d) This Section 5.3 notwithstanding, Bonds or Contracts may be issued or
incurred to refund outstanding Bonds or Contracts if, after giving effect to the application of the
proceeds thereof, total Debt Service will not be increased in any Fiscal Year in which Bonds or
Contracts (outstanding on the date of issuance or incurrence of such refunding Bonds or Contracts,
but excluding such refunding Bonds or Contracts)not being refunded are outstanding.
(e) Nothing herein shall preclude the District from issuing any bonds or
installment purchase contracts the payments under which are subordinate to any Bonds or Contracts
of the District.
Section 5.4. Investments. All moneys held by the District in the Revenue Fund and the
Acquisition Fund shall be invested in Permitted Investments and the investment earnings thereon
shall remain on deposit in such fund, except as otherwise provided herein.
ARTICLE VI
COVENANTS OF THE DISTRICT
Section 6.1. Compliance with Installment Purchase Agreement and Aneillaryereements.
The District will punctually pay the Installment Payments in strict conformity with the terms hereof,
and will faithfully observe and perform all the agreements, conditions, covenants and terms
contained herein required to be observed and performed by it, and will not terminate this Agreement
for any cause including, without limiting the generality of the foregoing, any acts or circumstances
that may constitute failure of consideration, destruction of or damage to the Broadband System,
commercial frustration of purpose, any change in the tax or other laws of the United States of
America or of the State of California or any political subdivision of either or any failure of the
Corporation to observe or perform any agreement, condition, covenant or term contained herein
required to be observed and performed by it, whether express or implied, or any duty, liability or
obligation arising out of or connected herewith or the insolvency, or deemed insolvency, or
bankruptcy or liquidation of the Corporation or any force majeure, including acts of God, tempest,
storm, earthquake, war, rebellion, riot, civil disorder, acts of public enemies, blockade or embargo,
strikes, industrial disputes, lock outs, lack of transportation facilities, fire, explosion, or acts or
regulations of governmental authorities.
It is expressly understood and agreed by and among the parties to this Agreement that,
subject to Section 10.6 hereof, each of the agreements, conditions, covenants and terms contained in
this Agreement is an essential and material term of the purchase of and payment for the Project and
by the District pursuant to, and in accordance with, and as authorized under the Law.
The District will faithfully observe and perform all the agreements, conditions, covenants and
terms required to be observed and performed by it pursuant to all outstanding Contracts and Bonds as
such may from time to time be executed or issued, as the case may be.
Section 6.2. Against Encumbrances. The District will not make any pledge of or place
any lien on Revenues or the moneys in the Revenue Fund except as permitted hereby. The District
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may at any time, or from time to time, issue Contracts and Bonds as permitted herein, or may issue or
incur evidences of indebtedness or incur other obligations, provided that such pledge and lien shall
be subordinate in all respects to the pledge of and lien thereon provided herein.
Section 6.3. Against Sale or Other Disposition of Property. The District will not enter into
any agreement or lease which impairs the operation of the Broadband System or any part thereof
necessary to secure adequate Net Revenues for the payment of the Installment Payments, or which
would otherwise impair the rights of the Corporation hereunder or the operation of the Broadband
System. Any real or personal property which has become nonoperative or which is not needed for
the efficient and proper operation of the Broadband System, or any material or equipment which has
become worn out, may be sold if such sale will not impair the ability of the District to pay the
Installment Payments and if the proceeds of such sale are deposited in the Revenue Fund.
Nothing herein shall restrict the ability of the District to sell any portion of the Broadband
System if such portion is immediately repurchased by the District and if such arrangement cannot by
its terms result in the purchaser of such portion of the Broadband System exercising any remedy
which would deprive the District of or otherwise interfere with its right to own and operate such
portion of the Broadband System.
Section 6.4. AQainst Competitive Facilities . To the extent permitted by existing law, the
District covenants that it will not acquire, construct, maintain or operate within the boundaries of the
District any broadband system competitive with the Broadband System.
Section 6.5. Tax Covenants. Notwithstanding any other provision of this Agreement,
absent an opinion of Special Counsel that the exclusion from gross income of interest with respect to
the Certificates will not be adversely affected for federal income tax purposes, the District and the
Corporation covenant to comply with all applicable requirements of the Code necessary to preserve
such exclusion from gross income and specifically covenants, without limiting the generality of the
foregoing, as follows:
(a) Private Activity. The District and the Corporation will not take or omit to
take any action or make any use of the proceeds of the Certificates or of any other moneys or
property which would cause the Certificates to be "private activity bonds" within the meaning of
Section 141 of the Code.
(b) Arbitrage. The District and the Corporation will make no use of the proceeds
of the Certificates or of any other amounts or property, regardless of the source, or take or omit to
take any action which would cause the Certificates to be "arbitrage bonds" within the meaning of
Section 148 of the Code.
(c) Federal Guarantee. The District and the Corporation will make no use of the
proceeds of the Certificates or take or omit to take any action that would cause the Certificates to be
"federally guaranteed" within the meaning of Section 149(b) of the Code.
(d) Information R�. The District and the Corporation will take or cause to
be taken all necessary action to comply with the informational reporting requirements of
Section 149(e)of the Code.
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(e) Miscellaneous. The District and the Corporation will take no action
inconsistent with the expectations stated in any Tax Certificate executed with respect to the
Certificates and will comply with the covenants and requirements stated therein and incorporated by
reference herein.
This Section and the covenants set forth herein shall not be applicable to, and nothing
contained herein shall be deemed to prevent the District and the Corporation from issuing r
Certificates, the interest with respect to which has been determined by Special Counsel to be subject
to federal income taxation.
Section 6.6. Maintenance and Operation of the Broadband S sy tem. The District will
F
maintain and preserve the Broadband System in good repair and working order at all times and will #
operate the Broadband System in an efficient and economical manner and will pay all Operation and 1
Maintenance Costs as they become due and payable.
Section 6.7. Payment of Claims. The District will pay and discharge any and all lawful
h, if unpaid, might become a lien on the Revenues or the
claims for labor, materials or supplies whic
funds or accounts created hereunder or on any funds in the hands of the District or the Trustee
pledged to pay the Installment Payments or to the Owners prior or superior to the lien of the
Installment Payments or which might impair the security of the Installment Payments,but the District
shall not be required to pay such claims if the validity thereof shall be contested in good faith.
Section 6.8. Compliance with Contracts. The District will neither take nor omit to take
any action under any contract if the effect of such act or failure to act would in any manner impair or
adversely affect the ability of the District to pay Installment Payments; and the District will comply
with, keep, observe and perform all agreements, conditions, covenants and terms, express or implied,
required to be performed by it contained in all other contracts affecting or involving the Broadband
System, to the extent that the District is a party thereto, including but not limited to the
_Agreement.
Section 6.9. Insurance.
(a) The District will procure and maintain or cause to be procured and
maintained insurance on the Broadband System with responsible insurers in such amounts and
against such risks (including damage to or destruction of the Broadband System) as are usually
covered in connection with facilities similar to the Broadband System so long as such insurance is
available from reputable insurance companies.
In the event of any damage to or destruction of the Broadband System caused by the perils
covered by such insurance, the Net Proceeds thereof shall be applied to the reconstruction, repair or
replacement of the damaged or destroyed portion of the Broadband System. The District shall begin
such reconstruction, repair or replacement promptly after such damage or destruction shall occur, and
shall continue and properly complete such reconstruction, repair or replacement as expeditiously as
possible, and shall pay out of such Net Proceeds all costs and expenses in connection with such
reconstruction, repair or replacement so that the same shall be completed and the Broadband System
shall be free and clear of all claims and liens.
If such Net Proceeds exceed the costs of such reconstruction, repair or replacement portion of
the Broadband System, and/or the cost of the construction of additions, betterments, extensions or
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DOCSSF/43372v6/22925-0011
improvements to the Broadband System, then the excess Net Proceeds shall be applied in part to the
prepayment of Installment Payments as provided in Article VII and in part to such other fund or
account as may be appropriate and used for the retirement of Bonds and Contracts in the same
Proportion which the aggregate unpaid principal balance of Installment Payments then bears to the
aggregate unpaid principal amount of such Bonds and Contracts. If such Net Proceeds are sufficient
to enable the District to retire the entire obligation evidenced hereby prior to the final due date of the
Installment Payments as well as the entire obligations evidenced by Bonds and Contracts then
remaining unpaid prior to their final respective due dates, the District may elect not to reconstruct
repair or replace the damaged or destroyed portion of the Broadband System, and/or not to construct
other additions, betterments, extensions or improvements to the Broadband System; and thereupon
such Net Proceeds shall be applied to the prepayment of Installment Payments as provided in Article
VII and to the retirement of such Bonds and Contracts.
(b) The District will procure and maintain liability and workers compensation
coverage, if available on commercially reasonable terms from reputable insurance companies, and
such other insurance as it shall deem advisable or necessary to protect its interests and the interests of
the Corporation, which insurance shall afford protection in such amounts and against such risks as
are usually covered in connection with broadband systems similar to the Broadband System.
(c) Any insurance maintained pursuant to paragraph (a) or (b) above may be
maintained under a self-insurance program so long as such self-insurance is maintained in the
amounts and manner usually maintained in connection with broadband systems similar to the
Broadband System and is, in the opinion of an accredited actuary, actuarially sound.
All policies of insurance required to be maintained herein shall provide that the Corporation
and the Trustee shall be given thirty (30) days written notice of any intended cancellation thereof or
reduction of coverage provided thereby.
Section 6.10. Accountin Records- Financial Statements and Other Reports. The District
will keep appropriate accounting records in which complete and correct entries shall be made of all
transactions relating to the Broadband System, which records shall be available for inspection by the
Corporation and the Trustee at reasonable hours and under reasonable conditions.
Section 6.11. Protection of Securit and Rj_g hts of the Co oration, The District will
preserve and protect the security hereof and the rights of the Corporation to the Installment Payments
hereunder and will warrant and defend such rights against all claims and demands of all persons.
OTHER THAN REVENUES, NO OTHER DISTRICT MONEYS ARE PLEDGED TO THE
PAYMENT OF THE INSTALLMENT PAYMENTS. THE DISTRICT SHALL PAY
INSTALLMENT PAYMENTS AND OTHER AMOUNTS DUE HEREUNDER SOLELY FROM
REVENUES AND IS HEREBY PROHIBITED FROM PAYING INSTALLMENT PAYMENTS
FROM ANY OTHER DISTRICT FUNDS OR MONEYS OR USING SUCH FUNDS OR
MONEYS FOR THE PERFORMANCE OF ANY AGREEMENTS OR COVENANTS REQUIRED
TO BE PERFORMED BY IT CONTAINED HEREIN.
t
Section 6.12. Payment of Taxes and Compliance with Governmental Re District will pay and discharge all taxes, assessments and other governmental charges whic niarions. The
It may '
hereafter be lawfully imposed upon the Broadband System, or any part thereof or upon the Revenues
when the same shall become due. The District will duly observe and conform with all valid
regulations and requirements of any governmental authority relative to the operation of the
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DOCSS F/43 3 72 v6/2 2925-0011 -16-
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Broadband System or any part thereof, but the District shall not be required to comply with any s
validity or application
regulations or requirements so long as the thereof shall be contested in good
faith. n
Section 6.13. Amount of Rates and Charges. To the fullest extent permitted by law, the r
District shall fix, prescribe and collect rates and charges for the Broadband Service which will be at
least sufficient to yield daring each Fiscal Year Net Revenues equal to one hundred twenty five
percent(125%) of Debt Service for such Fiscal Year. The District may make adjustments from time
to time in such rates and charges and may make such classification thereof as it deems necessary,but #
shall not reduce the rates and charges then in effect unless the Net Revenues from such reduced rates
and charges will at all times be sufficient to meet the requirements of this section.
Section 6.14. Collection of Rates and Charges. The District will have in effect at all times
by-laws, rules and regulations requiring each customer to pay the rates and charges applicable to the
Ring thereof and for a due date and a delinquency date for
Broadband Service and providing for the bi s
each bill. p
r any part of the
Seectiioni6J 5 domain proceedings,D am Phe Nedt Proceedss. If all othereoI shall be applied asnfollows: shall
be taken y
(a) If (1) the District files with the Corporation and the Trustee a certificate
showing (i) the estimated loss of annual Net Revenues, if any,
esuffered
oori to neof the addit suffered by the
District by reason of such eminent domain proceedings, (it) a g
betterments, extensions or improvements to the Broadband System proposed to be acquired and
constructed by the District from such Net Proceeds, and(iii) an estimate of the additional annual Net
Revenues to be derived from such additions, betterments, extensions or improvements, and (2) the
District, on the basis of such certificate filed with the Corporation and the Trustee, determines that
the estimated additional annual Net Revenues will sufficiently offset the estimated loss of annual Net
Revenues resulting from such eminent domain proceedings so that the ability of the District to meet
its obligations hereunder will not be substantially impaired (which determination shall be final and
conclusive), then the District shall promptly proceed with the acquisition and construction of such
additions, betterments, extensions or improvements substantially in accordance with such certificate
and such Net Proceeds shall be applied for the payment of the costs of such acquisition and
construction, and any balance of such Net Proceeds not required by the District for such purpose
shall be deposited in the Revenue Fund.
(b) If the foregoing conditions are not met, then such Net Proceeds shall be
applied by the District in part to the prepayment of Installment Payments as provided in Article VII
and in part to such other fund or account as may be appropriate and used for the retirement of Bonds
and Contracts in the same proportion which the aggregate unpaid principal balance of Installment
Payments then bears to the aggregate unpaid principal amount of such Bonds and Contracts.
Section 6.16. Further Assurances. The District will adopt, deliver, execute and make any
and all further assurances, instruments and resolutions as may be reasonably necessary or proper to
carry out the intention or to facilitate the performance hereof and for the better assuring and
confirming unto the Corporation of the rights and benefits provided to it herein.
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ARTICLE VII
PREPAYMENT OF INSTALLMENT PAYMENTS
Section 7.1. Prepa ment.
(a) The District may or shall, as the case may be, prepay from the Net Proceeds
as provided herein on any date, all or any part on any Installment Payment Date, of the principal
amount of the unpaid Installment Payments at a prepayment price equal to the sum of the principal
amount prepaid plus accrued interest thereon to the date of prepayment.
(b) The District may prepay the Installment Payments either in inverse order of
maturity or pro rata among maturities, and by lot within a maturity, as a whole or in part, on any date
on or after November 1, 2014 from any available fiords. The principal amount of the unpaid
Installment Payments is payable at a prepayment price (expressed as a percentage of the principal
amount of the Installment Payments to be prepaid) plus accrued interest thereon to the date of
prepayment as set forth below:
Prepayment
Prepayment Period Price
November 1, 2014 through October 31, 2015 102%
November 1, 2015 through October 31, 2016 101
Notwithstanding any such prepayment, the District shall not be relieved of its obligations
hereunder, including its obligations under Article IV, until the Purchase Price shall have been fully
paid (or provision for payment thereof shall have been provided to the written satisfaction of the
Corporation).
(c) The District may prepay the Installment Payments in whole or in part on any
date, (i) as a result of changes in the constitutions or laws of the United States or the State of
California, any executive or administrative action by any federal, state or local entity, or any final
decree or judgment of any court after the contest thereof by the District, which materially adversely
affect the ability of the District to own or operate the Broadband System, (ii)the Installment
Purchase Agreement becomes void or unenforceable or impossible of performance in accordance
with the intent and purpose of the parties as expressed therein or iii unreasonable burdens or
excessive liabilities are imposed upon the District by reason of its ownership or operation of the
Broadband System, in each case at a Prepayment Price equal to 100% of the principal amount thereof
(together with interest accrued to such dated fixed for prepayment), without premium.
(d) The District shall prepay the Installment Payments in whole upon the
occurrence of a Determination of Taxability on the first date possible subsequent to such a
Determination of Taxability after the giving of notice by the Trustee to Owners pursuant to the Trust
Agreement, at a Prepayment Price equal to 100°% of the principal amount thereof (together with
interest accrued to such dated fixed for prepayment), without premium.
Section 7.2. Method of Prepayment. Before making any prepayment pursuant to
Section 7.1(a), the District may, within five (5) days following the event permitting the exercise of
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DOCSSFl43372v6122925 18
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such right to prepay or creating such obligation to prepay, give written notice to the Corporation and
the Trustee describing such event and specifying the date on which the prepayment of the Certificates
will be paid, which date shall be not less than sixty (60) days from the date such notice is given,
unless such prepayment must occur on an Interest Payment Date, in which case such date shall be the
next Interest Payment Date with respect to which notice of prepayment may be timely given pursuant
to the Trust Agreement.
ARTICLE Vill
EVENTS OF DEFAULT AND REMEDIES OF THE CORPORATION
Section 8.1. Events of Default and Acceleration of Maturities. If one or more of the
following Events of Default shall happen,that is to say --
(a) if default shall be made by the District in the due and punctual payment of
any Installment Payment or any Contract or Bond when and as the same shall become due and
payable;
(b) if default shall be made by the District in the performance of any of the other
agreements or covenants required herein by it or in any Contract or Bond to be performed by it, and
such default shall have continued for a period of sixty (60) days after the District shall have been
given notice in writing of such default by the Corporation;
(c) if the District shall file a petition or answer seeking arrangement or
reorganization under the federal bankruptcy laws or any other applicable law of the United States of
America or any state therein, or if a court of competent jurisdiction shall approve a petition filed with
or without the consent of the District seeking arrangement or reorganization under the federal
bankruptcy laws or any other applicable law of the United States of America or any state therein, or
if under the provisions of any other law for the relief or aid of debtors any court of competent
jurisdiction shall assume custody or control of the District or of the whole or any substantial part of
its property; or
(d) if payment of the principal of any Contract or Bond is accelerated in
accordance with its terms;
then and in each and every such case during the continuance of such Event of Default specified in
clauses (c) and (d) above, the Corporation shall, and for any other such Event of Default the
Corporation may, and in each and every such case the Corporation, by notice in writing to the
District, shall declare the entire principal amount of the unpaid Installment Payments and the accrued
interest thereon to be due and payable immediately, and upon any such declaration the same shall
become immediately due and payable, anything contained herein to the contrary notwithstanding.
This subsection however, is subject to the condition that if at any time after the entire principal
amount of the unpaid Installment Payments and the accrued interest thereon shall have been so
declared due and payable and before any judgment or decree for the payment of the moneys due shall
have been obtained or entered the District shall deposit with the Corporation a sum sufficient to pay
the unpaid principal amount of the Installment Payments and/or the unpaid payment of any other
Contract or Bond referred to in clause (a) above due prior to such declaration and the accrued interest
thereon, with interest on such overdue installments, at the rate or rates applicable to the remaining
unpaid principal balance of the Installment Payments or such Contract or Bond if paid in accordance
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DOCSSF/433'72v6/2292 5-001 1
with their terms, and the reasonable expenses of the Corporation, and any and all other defaults
known to the Corporation (other than in the payment of the entire principal amount of the unpaid
Installment Payments and the accrued interest thereon due and payable solely by reason of such
declaration) shall have been made good or cured to the satisfaction of the Corporation or provision
deemed by the Corporation to be adequate shall have been made therefor, then and in every such case
the Corporation, by written notice to the District, may rescind and annul such declaration and its
consequences; but no such rescission and annulment shall extend to or shall affect any subsequent
default or shall impair or exhaust any right or power consequent thereon.
Section 8.2. Application of Funds Upon Acceleration. Upon the date of the declaration of
acceleration as provided in Section 8.1, all Revenues thereafter received shall be applied in the
following order-
First, to the payment, without preference or priority, and in the event of any insufficiency of
such Revenues ratably without any discrimination or preference, of the fees, costs and
expenses of the Corporation and Trustee, if any, including reasonable compensation to its
accountants and counsel;
Second, to the payment of the Operation and Maintenance Coss; and
T=hird to the payment of the entire principal amount of the unpaid Installment Payments and
the unpaid principal amount of all Bonds and Contracts and the accrued interest thereon, with
interest on the overdue installments at the rate or rates of interest applicable to the Installment
Payments and such Bonds and Contracts if paid in accordance with their respective terms.
Section 8.3. Other Remedies of the Corporation. The Corporation shall have the right:
or other
n or
ceeding or suit at
n equity to
enforce its righ saagainst the District mandamus orr any d director, officeroor employee thereof,a and tow or i compel he
District or any such director, officer or employee to perform and carry out its or his duties under the
Law and the agreements and covenants required to be performed by it or him contained herein;
(b) by suit in equity to enjoin any acts or things which are unlawful or violate the
rights of the Corporation; or
(c) by suit in equity upon the happening of an Event of Default to require the
District and its directors, officers and employees to account as the trustee of an express trust.
Notwithstanding anything contained herein, the Corporation shall have no security interest in
or mortgage on the Project, the Broadband System or other asses of the District, and no default
hereunder shall result in the loss of the Project, the Broadband System or other assets of the District.
Section 8.4. Non-Waiver. Nothing in this article or in any other provision hereof shall
affect or impair the obligation of the District, which is absolute and unconditional, to pay the
Installment Payments to the Corporation at the respective due dates or upon prepayment from the Net
Revenues, the Revenue Fund and the other funds herein pledged for such payment, or shall affect or
impair the right of the Corporation, which is also absolute and unconditional, to institute suit to
enforce such payment by virtue of the contract embodied herein.
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A waiver of any default or breach of duty or contract by the Corporation shall not affect any n
subsequent default or breach of duty or contract or impair any rights or remedies on any such
ntract. No delay or omission by the Corporation to
subsequent default or breach of duty or co
exercise any right or remedy accruing upon any default or breach of duty or contract shall impair any
o be a waiver of any such default or breach of duty or
such right or remedy or shall be construed t f
contract or an acquiescence therein, and every right or remedy conferred upon the Corporation by the
Law or by this article may be enforced and exercised from time to time and as often as shall be
deemed expedient by the Corporation.
If any action, proceeding or suit to enforce any right or exercise any remedy is abandoned or
determined adversely to the Corporation, the District and the Corporation shall be restored to their
former positions, rights and remedies as if such action, proceeding or suit had not been brought or
taken.
Section 8.5. Remedies Not Exclusive. No remedy herein conferred upon or reserved to
the Corporation is intended to be exclusive of any other remedy, and each such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now or hereafter
existing in law or in equity or by statute or otherwise and may be exercised without exhausting and
without regard to any other remedy conferred by the Law or any other law.
If any remedial action is discontinued or abandoned,the Trustee and Certificate Owners shall
be restored to their former positions.
ARTICLE IX
DISCHARGE OF OBLIGATIONS
Section 9.1. Discharge of Obligations.
(a) When all or any portion of the Installment Payments shall have become due
and payable in accordance herewith or a written notice of the District to prepay all or any portion of
the Installment Payments shall have been filed with the Trustee; and
(b) there shall have been deposited with the Trustee at or prior to the Installment
Payment Dates or date (or dates) specified for prepayment, in trust for the benefit of the Corporation
or its assigns and irrevocably appropriated and set aside to the payment of all or any portion of the
Installment Payments, sufficient moneys and non-callable Permitted Investments, issued by the
United States of America and described in clause (A) of the definition thereof, the principal of and
interest on which when due will provide money sufficient to pay all principal, prepayment premium,
if any, and interest of such Installment Payments to their respective Installment Payment Dates or
prepayment date or dates as the case may be; and
(c) provision shall have been made for paying all fees and expenses of the
Trustee,
then and in that event, the right, title and interest of the Corporation herein and the
obligations of the District hereunder shall, with respect to all or such portion of the Installment
Payments as have been so provided for, thereupon cease, terminate, become void and be completely
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DOCSSFl43372v6i22925-OOLI
discharged and satisfied (except for the right of the Trustee and the obligation of the District to have
such moneys and sue],Permitted Investments applied to the payment of such Installment Payments).
In such event, upon request of the District the Trustee shall cause an accounting for such
period or periods as may be requested by the District to be prepared and filed with the District and
shall execute and deliver to the District all such instruments as may be necessary or desirable to
evidence such total or partial discharge and satisfaction, as the case may be, and, in the event of a
total discharge and satisfaction, the Trustee shall pay over to the District, after payment of all
amounts due the Trustee pursuant to the Trust Agreement, as an overpayment of Installment
Payments, all such moneys or such Permitted Investments held by it pursuant hereto other than such
moneys and such Permitted Investments as are required for the payment or prepayment of the
Installment Payments, which moneys and Permitted Investments shall continue to be held by the
Trustee in trust for the payment of the Installment Payments and shall be applied by the Trustee to
the payment of the Installment Payments of the District.
ARTICLE X
MISCELLANEOUS
Section 10.1. Liability of District Limited to Revenues. Notwithstanding anything
contained herein, the District shall not be required to advance any moneys derived from any source
of income other than the Revenues and the Revenue Fund for the payment of amounts due hereunder
or for the performance of any agreements or covenants required to be performed by it contained
herein. THE DISTRICT IS HEREBY PROHIBITED FROM USING ANY OTHER DISTRICT
FUNDS FOR ANY SUCH PURPOSE.
The obligation of the District to make the Installment Payments is a special obligation of the
District payable solely from the Net Revenues, and does not constitute a debt of the District or of the
State of California or of any political subdivision thereof in contravention of any constitutional or
statutory debt limitation or restriction.
OTHER THAN REVENUES, NO OTHER DISTRICT MONEYS ARE PLEDGED TO THE
PAYMENT OF THE INSTALLMENT PAYMENTS, THE DISTRICT SHALL PAY
INSTALLMENT PAYMENTS SOLELY FROM REVENUES AND IS HEREBY PROHIBITED
FROM PAYING INSTALLMENT PAYMENTS FROM ANY OTHER DISTRICT FUNDS OR
MONEYS.
Section 10.2. Benefits of Installment Purchase Agreement Limited to Parties. Nothing
contained herein, expressed or implied, is intended to give to any person other than the District or the
Corporation any right, remedy or claim under or pursuant hereto, and any agreement or covenant
required herein to be performed by or on behalf of the District or the Corporation shall be for the sole
and exclusive benefit of the other party.
Section 10.3. Successor Is Deemed Included in all References to Predecessor. Whenever
either the District or the Corporation is named or referred to herein, such reference shall be deemed
to include the successor to the powers, duties and functions that are presently vested in the District or
the Corporation, and all agreements and covenants required hereby to be performed by or on behalf
of the District or the Corporation shall bind and inure to the benefit of the respective successors
thereof whether so expressed or not.
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DOCSSF/43372v6f22925-0011
Section 10.4. Waiver of Personal Liability. No director, officer or employee of the District
shall be individually or personally liable for the payment of the Installment Payments, but nothing
contained herein shall relieve any director, officer or employee of the District from the performance
of any official duty provided by any applicable provisions of law or hereby.
i
Section 10.5. Article and Section Headings Gender and References. The headings or titles
of the several articles and sections hereof and the table of contents appended hereto shall be solely r
for convenience of reference and shall not affect the meaning, construction or effect hereof, and
words of any gender shall be deemed and construed to include all genders. All references herein to
3
"Articles," "Sections" and other subdivisions or clauses are to the corresponding articles, sections,
subdivisions or clauses hereof; and the words "hereby",
"herein," "hereof," "hereto," "herewith" and .
other words of similar import refer to this Agreement as a whole and not to any particular article,
section, subdivision or clause hereof.
Section 10.6. Partial Invalidity. If any one or more of the agreements or covenants or
portions thereof required hereby to be performed by or on the part of the District or the Corporation
shall be contrary to law, then such agreement or agreements, such covenant or covenants or such
portions thereof shall be null and void and shall be deemed separable from the remaining agreements
and covenants or portions thereof and shall in no way affect the validity hereof. The District and the
Corporation hereby declare that they would have executed this Agreement, and each and every other
article, section, paragraph, subdivision, sentence, clause and phrase hereof irrespective of the fact
that any one or more articles, sections, paragraphs, subdivisions, sentences, clauses or phrases hereof
or the application thereof to any person or circumstance may be held to be unconstitutional,
unenforceable or invalid.
Section 10.7. Assignment. This Agreement and any rights hereunder may be assigned by
the Corporation, as a whole or in part, without the necessity of obtaining the prior consent of the
District.
Section 10.8, Net Contract. This Agreement shall be deemed and construed to be a net
contract, and the District shall pay absolutely net during the term hereof the Installment Payments
and all other payments required hereunder, free of any deductions and without abatement, diminution
or set-off whatsoever.
Section 10.9. California Law. THE INSTALLMENT PURCHASE AGREEMENT
SHALL BE CONSTRUED AND GOVERNED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA.
Section 10.10, Notices. All written notices to be given hereunder shall be given by mail to
the parry entitled thereto at its address set forth below, or at such other address as such party may
provide to the other party in writing from time to time, namely:
If to the District: Truckee Donner Public Utility District
P.O. Box 309
11570 Donner Pass Road
Truckee, CA 96160
Attention: General Manager
-23-
DOCSSF/43372v6/229 25-00 1 1
If to the Corporation: Truckee Donner Public Utility District Financing
Corporation
c/o Truckee Donner Public Utility District
1 1570 Donner Pass Road
Truckee, CA 96160
Attention: President
Section I0.I1. Effective Date. This Agreement shall become effective upon its execution
and delivery, and shall terminate when the Purchase Price shall have been full
l
the payment thereof shall have been made to the written satisfaction of the Co Ora ation),provision for
Section 1012. Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of which shall constitute but one and
the same instrument.
Section 10.13. Indemnification of Corporation. The District hereby agrees to indemnify and
hold harmless the Corporation if and to the extent pennitted by law, from and against all claims,
advances, damages and losses, including legal fees and expenses, arising out of or in connection with
the acceptance or the performance of its duties hereunder and under the Trust Agreement; provided
that no indemnification will be made for willful misconduct, negligence or breach of an obligation
hereunder or under the Trust Agreement by the Corporation.
Section 10.14. Amendments Pennined. This Agreement and the rights and obligations of
the Corporation, the District, the Owners of the Certificates and of the Trustee may be modified or
amended at any time by an amendment hereto which shall become binding when the written consents
of the Owners of a majority in aggregate principal amount of the Certificates then Outstanding,
exclusive of Certificates disqualified as provided in the Trust Agreement, shall have been filed with
the Trustee. No such modification or amendment shall (1) extend the stated maturities of the
Certificates, or reduce the rate of interest represented thereby, or change the method of computing the
rate of interest with respect thereto, or extend the time of payment of interest, or reduce the amount
of principal represented thereby, or reduce any premium payable on the prepayment thereof, without
the consent of the Owner of each Certificate so affected, or (2) reduce the aforesaid percentage of
Owners of Certificates whose consent is required for the execution of any amendment or
modification of this Agreement without the consent of the Owners of all Certificates then
Outstanding, or (3) modify any of the rights or obligations of the Trustee, the Corporation or the
Bond Insurer without its respective written consent thereto; or (4) modify the limitations on the
liability of the District hereunder or amend Section 10.15 hereof without the consent of the Nevada
County Local Agency Formation Commission.
This Agreement and the rights and obligations of the Corporation, the District and of the
Owners of the Certificates may also be modified or amended at any time by an amendment hereto
which shall become binding upon adoption, without the consent of the Owners of any Certificates,
but only to the extent permitted by law and only for any one or more of the following purposes-
i
(a) to add to the covenants and agreements of the Corporation or the District
contained in this Agreement other covenants and agreements thereafter to be observed or to surrender
any right or power herein reserved to or conferred upon the Corporation or the District, and which
ficates;
shall not adversely affect the interests of the Owners of the Certi
i
}
DOCSSF/43372v6/22925-0011 -24
}
(b) to cure, correct or supplement any ambiguous or defective provision
contained in this Agreement or in regard to questions arising under this Agreement as the
ry or desirable and which shall not adversely
Corporation or the District may deem necessa affect the
interests of the Owners of the Certificates; and
(c) to make such other amendments or modifications as may be in the best
interests of the Owners of the Certificates.
t
No amendment without consent of the Owners may modify any of the rights or obligations of
the Trustee without its written consent thereto. i
Section 10.15. No Additional Advances. The District shall not make any additional
f funding the capital or operating costs of the
advances or interfund loans for the purpose o
Broadband Service. 't
-25-
DOCSSFf4337M/22925-0011
IN WITNESS WHEREOF, the parties hereto have executed and attested this Agreement by
their officers thereunto duly authorized as of the day and year first written above.
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
President
Clerk
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
FINANCING CORPORATION
President
Clerk
'f
2
DOCSSF/43372v6/22925-001 t 26
4
r
EXHIBIT A
i
PURCHASE PRICE z
1, ayments to be made by the District hereunder is
The principal amount of p
E
S `
2. The installment payments of principal and interest are payable in the amounts and on
the Installment Payment Dates as follows:
Installment Amount Attributable to Amount Attributable to
f
Principal Interest
Payment Date �
5`h Day Prior To: t,
s
A-t
-001 l
DOCSSF/43372v6/22925
EXHIBIT B
DESCRIPTION OF THE PROJECT
The Project comprises the following described equipment and facilities:
COMPONENT CONTRACT COST
TOTAL
)F
t
t
t
DOCSSF/43372v612 2 92 5-001 1 B-I
j
i
}
S
EXHIBIT C
[FORM OF REQUISITION NO._FOR
DISBURSEMENT FROM ACQUISITION FUND]
$ s
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
REVENUE CERTIFICATES OF PARTICIPATION, SERIES 2000
a
The undersigned hereby states and certifies:
(i) that he is the duly appointed, qualified and acting General Manager of the Truckee
Donner Public Utility District, a California public utility organized and existing tinder the laws of the a
and as such, is familiar with the facts herein certified and is
State of California (the "District"),
authorized to certify the same; �
u that, pursuant to Section 3.4 of that certain Installment Purchase Agreement, dated as
� ) Agreement"), by and among BNY Western Trust
of 1, 2004 (the "Trust
Company, as trustee (the "Trustee"), the Truckee Donner Public Utility District Public Financing
sbuse
Corporation and the Districtt,the nts fundersirom Acquisition Fnhereby s ndestabl'shed under the ts the Treasurer of theDistrict
Agr ementrto
this date the following amo
the payees designated on the attached Exhibit A;
(iii) that each obligation mentioned herein has been incurred by the District and is a
proper charge against the Acquisition Fund;
(iv) that any approval required under the CaliforniaEnvironmental
Resourceshe priorto the expeenditure of such
amended (Division se the California Pub
forth on the att ched ExhibExhibito has been received and is final;
amount for the purpose
otice of any
(v) that there has not been, right
or claimnaftfeccti gled witIthe right o receive payment or served upon the District nof, any of heemoneys
to lien or attachment upon,
payable to any of the payees named on the attached Exhibit A, which has not been released or wil
not be released simultaneously with the payment of such obligation, other than materialmen's or
mechanics' liens accruing by mere operation of law.
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
General Manager
C-1
DOCSSFl43372v61229 2 5-001 t
Exhibit A
ACQUISITION FUND DISBURSEMENTS
Item
Number Payee Name and Address Purpose of
Obligation Amount
z
z
i
5
i
DOCSSF/43372v6/22925-0011 C-2
s
`t
Table oof Contents
Page
i
ARTICLE I
a
DEFINITIONS
t
Section 1.1. Definitions................................................................................................
i
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations by the District..................... ...................................................8
Section 2.2. Representations and Warranties by the Corporation....................
ARTICLE III
SALE AND PURCHASE OF THE PROJECT
Section 3.1. Purchase and Sale of the Project .............I......... 9
.........................
Section 3.2. Title ......_...........................
Section 3.3. Acquisition and Construction of the Project............... ....................
.................9
Section 3.4. Changes to the Project............................ 9
.........................................
Section 3.5. Acquisition Fund..............................................................................................
ARTICLE IV
INSTALLMENT PAYMENTS
10
Section 4.1. Purchase Price. ...............................................................................................
...................10
Section 4.2. Installment Payments ..................................................................
ARTICLE V
SECURITY
Section 5.1. Pledge of Revenues........................................................................................ 11
Section 5.2. Allocation of Revenues........................................................................ ....... 12
........................ 11
Section 5.3. Additional Contracts and Bonds.......................................... ......
............
Section 5.4. Investments.......................................... ............................................... 13
ARTICLE VI
COVENANTS OF THE DISTRICT
Section 6.1. Compliance with Installment Purchase Agreement and Ancillary Agreements13
Section 6.2. Against Encumbrances................................................................................... 13
i
DOCSSF/43 3 7 2v6/2292 5-0011
Table of Contents
{continued}
Page
Section 6.3, Against Sale or Other Disposition of Property............................................... 14
Section 6.4, Against Competitive Facilities....................................................................... 14
Section 6.5. Tax Covenants.................. .
Section 6.6. Maintenance and Operation of the Broadband System................................ 14
.. 15
Section 6.7. Payment of Claims...........................................
Section 6.8. Compliance with Contracts.......�.................... 15
Section 6.9. Insurance. ............................... . . .. .. .. . . .. ................................................ 15
15
Section 6.10. Accounting Records; Financial Statements and Other Reports ..................... 16
Section 6.11. Protection of Security and Rights of the Corporation............................Section 6.12. Payment of Taxes and Compliance with Governmental Regulations............ 16
Section 6.13. Amount of Rates and Charges........................................................................ 17
Section 6.14. Collection of Rates and Charges.................................................................... 17
Section 6.15. Eminent Domain Proceeds............................................................................. 17
Section6.16, Further Assurances......................................................................................... 17
ARTICLE VII
PREPAYMENT OF INSTALLMENT PAYMENTS
Section 7.1, Prepayment..............................................
Section 7.2. Method of Prepayment
................................................... 18
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES OF THE CORPORATION
Section 8.1. Events of Default and Acceleration of Maturities,...... ........
Section 8.2. Application of Funds Upon Acceleration.......................................................20
Section 8.3. Other Remedies of the Corporation.........................
Section 8.4. Non-Waiver.............................. .......................................20
Section 8.5. Remedies Not Exclusive ................................................................................210
ARTICLE IX
DISCHARGE OF OBLIGATIONS
Section 9.L Discharge of Obligations................................................................................21
ARTICLE X
r
MISCELLANEOUS '
Section 10.1. Liability of District Limited to Revenues................. .
Section 10.2. Benefits of Installment Purchase Agreement Limited to Parties....................22
s
Section 10.3. Successor Is Deemed Included in all References to Predecessor,... ......._....22
Section 10.4. Waiver of Personal Liability............... i
.........................................................23 i
DOCSS F/43 3 72v6/22 92 5-0011 ��
Table o_ f_ Contents
ntents
(continued) Pave
Section 10.5. Article and Section Headings,Gender and References................................. 23
.......
..............23
Section 10.6. Partial Invalidity...................................................... .
................................................... 23
.23
..
Section 10.7. Assignment...................................... ......................
Section 10.8. Net Contract.......... .................................................................. ....... .
..
Section 10.9. California Law................................................................................................23
2
Section 10.10. Notices................................ ....
........ ................................................................ F
Section 10.11. Effective Date.................................................................................................24
24
Section 10.12. Execution in Counterparts....................................................................._.......
24
Section 10.13. Indemnification of Corporation--..................................................................
section10.14. Amendments Permitted..................................................................................2
..............24
Section 10.15. No Additional Advances..................................................................
E
........ A 1
EXHIBIT A PURCHASE PRICE.-.......................................................................
EXHIBIT B DESCRIPTION OF THE PROJECT ......................................... ...............B-1
EXHIBIT C FORM OF REQUISITION NO. _FOR DISBURSEMENT C-1
FROM ACQUISITION FUND................ . . . . .. .. .
DOCSSF/43372v6/22925-0011