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HomeMy WebLinkAbout7 Broadband Financing Workshop "7 Agenda Item # Memorandum To: Board of Directors From: Peter Holzmeister Date: April 16, 2004 Subject: Broadband financing workshop Why this matter is before the board: This matter involves financing of the broadband system. The board will be asked to take action on the attached documents in the very near future and I wanted to give you the chance to review them in advance of that meeting. History: We have assembled the broadband system finance team consisting of bond counsel (David Casnocha and Greg Blonde), finance advisors (Aggregate Networks, Rick Kaufman and Lawrence Lewis), and placement agents (Rob Riviere and Paul Jenison). This team is moving quickly to complete the financing. New information: Attached are the following draft documents: • Resolution of the Board of Directors authorizing the execution and delivery of an installment purchase agreement and a trust agreement and certain other actions in connection therewith. • Resolution of the Board of Directors of the Truckee Donner Public Utility District Financing Corporation authoring the execution and delivery of not toe exceed $ revenue certificates of participation, approving the execution and delivery of certain documents and authorizing certain actions in connection therewith. • Installment Agreement • Trust Agreement • Assignment Agreement • Preliminary Term Sheet • Service agreement extension with Aggregate Networks • Risk Mitigation Plan They are presented to you at this point to give you a chance to review them before they appear on your agenda as action items. They will be presented to the board for action at some point during the next month. They have been prepared by bond counsel with input form other team members and District staff(Alan Harry, Mary Chapman and me) These documents look similar to other financing we have done because the boiler plate is essentially the same. What changes are the specifics of the project. These documents do more than arrange financing. They become the basis for the Risk Mitigation Plan that LAFCo has required. So we have attached the draft Risk Mitigation Plan for your review and discussion. Recommendation: This is a workshop item, so no formal action is recommended. 4/15/04 RESOLUTION NO._ OF THE TRUCKEE DONNER PUBLIC UTILITY DISTRICT A RESOLUTION OF THE BOARD OF DIRECTORS AUTHORIZING THE EXECUTION AND DELIVERY OF AN INSTALLMENT PURCHASE AGREEMENT AND A TRUST AGREEMENT AND CERTAIN OTHER ACTIONS IN CONNECTION THEREWITH WHEREAS, the Truckee Donner Public Utility District, a public utility district duly organized and existing under and pursuant to the Constitution and laws of the State of California (the "District'), including the Public Utility District Act, Section 15501 et seq. of the Public Utilities Code of the State of California (the "Public Utilities Code") is authorized under provisions of the Constitution and laws of the State of California, including without limitation, Section 16431 of the Public Utilities Code, to dispose of and acquire certain equipment and facilities as the District may determine is necessary or proper; and WHEREAS, the District desires to finance the construction, acquisition and development of a broadband system (the "Project') by authorizing and directing the execution and delivery of certificates of participation (the "Certificates") evidencing fractional interests in the installment payments to be made by the District to the Truckee Donner Public Utility District Financing Corporation(the"Corporation") under the Installment Purchase Agreement described below; and WHEREAS, in the judgment of this Board it is in the best interest of the District to enter into the Installment Purchase Agreement described below in order to finance the Project; and WHEREAS, a majority of the Board of Directors of the District(the `Board") constituting a quorum for the transaction of business, is present, as required by Section 16071 of the Public Utilities Code; and WHEREAS, all acts, conditions and things required by the Constitution and law of the State of California to exist, to have happened and to have been performed precedent to and in connection with the consummation of the financing authorized hereby do exist, have happened and have been performed in regular and due time, form, and manner as required by law, and the District is now duly authorized and empowered, pursuant to each and every requirement of law, to consummate such financing for the purpose,in the manner and upon the terms herein provided; NOW, THEREFORE the Board of Directors of the Truckee Donner Public Utility District does hereby resolve as follows: Section 1. Installment Purchase Agreement. The form of Installment Purchase Agreement (the `Installment Purchase Agreement"), dated as of 1, 2004, between the District and the Truckee Donner Public Utility District Financing Corporation (the "Corporation"), presented to this meeting and on file with the Clerk of the Board of the District, is hereby approved. In accordance with Section 16033 of the Public Utilities Code, the President of the Board (the "President') is hereby authorized and directed, for and in the name and on behalf of the District, to sign the Installment Purchase Agreement, and in accordance with Section 16115 of the Public Utilities Code, the Clerk of the District (the "Clerk") is hereby authorized to countersign the Installment Purchase DCKSSR43403v P22925.001 I Agreement, and both the President and the Clerk are hereby authorized and directed to deliver to the Corporation the Installment Purchase Agreement in substantially said form, with such changes therein as the President may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof. Section 2, Trust Agreement. The form of Trust Agreement (the "Trust Agreement'), dated as of 1, 2004, among the District, the Corporation and the trustee named therein (the "Trustee"), presented to this meeting and on file with the Clerk, is hereby approved. In accordance with Section 16033 of the Public Utilities Code, the President is hereby authorized and directed, for and in the name and on behalf of the District, to sign the Trust Agreement, and in accordance with Section 16115 of the Public Utilities Code, the Clerk is authorized and directed to countersign the Trust Agreement, and both the President and the Clerk are hereby authorized and directed to deliver to the Corporation and the Trustee the Trust Agreement in substantially said form, with such changes therein as the President may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof. Section 3. Certificates. The Corporation is hereby directed to execute and deliver the Certificates, in the form and pursuant to the provisions of, the above-described Trust Agreement. Section 4. Purchase Contract. [NEED TO DISCUSS WHAT FORM THIS CONTRACT WILL TAKE] The Purchase Contract, in substantially the form on file with the District and, upon execution as authorized below, be and the same is hereby approved. The General Manager is hereby authorized and directed to execute and deliver the Purchase Contract with such changes, insertions and omissions as may be approved by the General Manager, said execution being conclusive evidence of such approval; provided, however, that in no event shall the principal amount of the Certificates exceed $_ (except such principal amount may be increased to provide original issue discount), nor shall the net interest cost of the Certificates exceed_%per annum. Section 5. Private Placement Memorandum. [NEED TO DISCUSS WHAT FORM THIS WILL TAKE] The preparation and distribution of the Private Placement Memorandum, in the form on file with the District, be and the same is hereby approved. The President, Vice-President or General Manager is hereby authorized and directed to execute, approve and deliver the final Private Placement Memorandum which, upon execution as authorized below, with such changes, insertions and omissions as the officer executing said document may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof. Section 6. Attestations. The Clerk or Deputy Clerk is hereby authorized and directed to attest the signature of the President, Vice President or General Manager, if necessary, and to affix and attest the seal of the District, as may be required or appropriate in connection with the execution and delivery of the Installment Purchase Agreement, the Trust Agreement,the Purchase Contract and the Private Placement Memorandum. Section 7. Other Actions. The President, the Vice-President, the General Manager, the Clerk, Deputy Clerk and any other proper officer of the District are hereby authorized and directed to do any and all things and to execute and deliver, and the Clerk is hereby authorized and directed to do any and all things and to countersign, any and all documents which they may deem necessary or advisable in order to consummate the sale, execution and delivery of the Certificates by the Trustee and otherwise to carry out, give effect to and comply with the terms and intent of this resolution, the Certificates, the Purchase Contract, the Installment Purchase Agreement, the Private Placement 2 DOCSSP\43403v1A22925,0011 Memorandum and the Trust Agreement. Such actions heretofore taken by such officers are hereby ratified, confirmed and approved. Section 8. Project. The General Manager is directed to take actions necessary to cause a portion of the proceeds of the Certificates to be used to finance the Project. Section 9. Effective Date. This resolution shall take effect immediately upon its adoption. 3 DOCSSF434030\22925.001 I PASSED AND ADOPTED this day of , 2004 by the following majority vote of the Board, as required by Section 16072 of the Public Utilities Code: AYES: NOES: i ABSENT: 1 TRUCKEE DONNER PUBLIC UTILITY DISTRICT By President ATTEST: ; District Clerk 4 DOCSSF\43403v1\22925,0011 4/15/04 RESOLUTION NO. _ RESOLUTION OF THE BOARD OF DIRECTORS OF THE TRUCKEE DONNER PUBLIC UTILITY DISTRICT FINANCING CORPORATION AUTHORIZING THE EXECUTION AND DELIVERY OF NOT TO EXCEED $ REVENUE CERTIFICATES OF PARTICIPATION, APPROVING THE EXECUTION AND DELIVERY OF CERTAIN DOCUMENTS AND AUTHORIZING CERTAIN ACTIONS IN CONNECTION THEREWITH WHEREAS, the Truckee Donner Public Utility District Financing Corporation is a nonprofit public benefit corporation organized and existing under the laws of the State of California (the "Corporation") with the authority to assist in financings on behalf of the Truckee Donner Public Utility District(the"District'); and WHEREAS, the District has determined that it would be in the best interests of the District and citizens of the community to authorize the execution and delivery of Revenue Certificates of Participation in an aggregate principal amount not to exceed $ (the "Certificates") to finance a broadband system for the District; and WHEREAS, the District and the Corporation desire to enter into that certain Installment Purchase Agreement, by and between the District and the Corporation (the "Installment Purchase Agreement"), the form of which is on file with the Corporation, that certain Trust Agreement,by and among the Trustee named therein, as trustee (the "Trustee"), the District and the Corporation (the "Trust Agreement'), the form of which is on file with the Corporation and that certain Assignment Agreement, by and between the Corporation and the Trustee (the "Assignment Agreement'), the form of which is on file with the Corporation; and WHEREAS,the Certificates will be sold to (the "Purchaser") all as provided in a Purchase Contract,by and between the District and the Purchaser and acknowledged by the Corporation(the"Purchase Contract'),the form of which is on file with the Corporation; NOW, THEREFORE, the Board of Directors of the Corporation does hereby resolve as follows: Section 1. Certificates. This Board of Directors hereby authorizes the preparation, sale and delivery of the Certificates in an aggregate principal amount not to exceed $ in accordance with the terms and provisions of the Trust Agreement. The purposes for which the proceeds of the sale of the Certificates shall be expended are to finance a broadband system for the District, to fund a reserve fund and to pay the costs of the sale and delivery of the Certificates. Section 2. Certificate Documents. The Installment Purchase Agreement, the Assignment Agreement, the Trust Agreement and the Purchase Contract presented at this meeting are approved. The President or Vice-President and the Clerk or Secretary are authorized and directed to execute and deliver the Installment Purchase Agreement, the Assignment Agreement and the Trust Agreement and the President is authorized and directed to acknowledge said Purchase Contract. Such agreements and contract shall be executed or acknowledged, as the case may be, in substantially the forms hereby approved, with such additions thereto and changes therein as are approved by the officers executing such agreements and contract, such approval to be conclusively evidenced by the execution and delivery or acknowledgment thereof. -t- DOCSSR43402v2\22925.0011 I l Y: Section 3. Other Actions. The President, Vice-President or Secretary and such other officers of the Corporation are authorized and directed, acting singly, to do any and all things and to execute and deliver any and all documents which such officers may deem necessary or advisable in order to consummate the sale and delivery of the Certificates, and the delivery of the Installment # Purchase Agreement, Assignment Agreement and Trust Agreement and acknowledgment of the Purchase Contract and otherwise effectuate the purposes of this Resolution, and such actions previously taken by such officers are hereby ratified and confirmed. Section 4. Effect. This Resolution shall take effect immediately. -2- DOCSSFA3402v222925D01 I 3 { i PASSED AND ADOPTED THIS_day of ,2004 by the following vote of the Board: , z AYES: NAYES: ABSENT: TRUCKEE DONNER PUBLIC UTILITY DISTRICT FINANCING CORPORATION President ATTEST: Secretary I, the undersigned, hereby certify: That I am the duly appointed and acting Secretary of the Truckee Donner Public Utility District Financing Corporation and that a special meeting of the Board of Directors of said District was held on 2004, the minutes of the regular meeting of the Board of Directors were duly and regularly adopted by said Board, and that said minutes have not been rescinded or amended since the date of their adoption, and that they are now in full force and effect: Dated: ,2004 Secretary Truckee Donner Public Utility District Financing Corporation -3- DOCSSP43402v2122925.001 I _ _ _ __ _ __ _ _.__ __.... 4/15/04 INSTALLMENT PURCHASE AGREEMENT by and between TRUCKEE DONNER PUBLIC UTILITY DISTRICT and TRUCKEE DONNER PUBLIC UTILITY DISTRICT FINANCING CORPORATION Dated as of 2004 relating to S TRUCKEE DONNER PUBLIC UTILITY DISTRICT REVENUE CERTIFICATES OF PARTICIPATION, SERIES 2004 DOCSSF\43372v3\22925.001 i INSTALLMENT PURCHASE AGREEMENT This INSTALLMENT PURCHASE AGREEMENT, made and entered into as of 1, 2004 by and between 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 (the "District"), and 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(the "Corporation"), WITNESSETH. WHEREAS, the District proposes to finance certain equipment and facilities as described in Exhibit B hereto (the "Project"); 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; WHEREAS, all acts, conditions and things required by law to exist, to have happened and to have been performed precedent to and in connection with the execution and 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 AGREEMENTS AND COVENANTS CONTAINED HEREIN AND FOR OTHER VALUABLE CONSIDERATION, THE PARTIES HERETO DO HEREBY AGREE AS FOLLOWS: ARTICLE I DEFINITIONS Section I.I. Definition. 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 terms defined herein. Unless the context otherwise requires, all capitalized terms used herein and not defined herein shall have the meanings ascribed thereto in the Trust Agreement. Accountant's Report The term "Accountant's Report" means a report signed by an Independent Certified Public Accountant. DOCSSR433720\22925.001 I Acquisition Fund The term "Acquisition Fund" means the fund by that name established pursuant to Section 3.5 hereof. Agreement The term "Agreement" means this Agreement, by and between the District and the Corporation, dated as of 1, 2004, as originally executed and as it may from time to time be amended or supplemented in accordance herewith. Bonds The term"Bonds" means all bonds, notes or similar obligations (but not including Contracts) of the District, the principal of and interest on which are payable from Net Revenues on a parity with the Installment Payments. Broadband Service The term `Broadband Service" means the services made available or provided by the Broadband System. Broadband System [NEED TO DISCUSS HOW BEST TO DESCRIBE THE SYSTEM] The term "Broadband System" means all properties and assets, real and personal, tangible and intangible, of the District 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 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 term "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 (it) 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. -2- DOCSSF\43372v3\22925.001 I .......... Contracts The term "Contracts" means this Installment Purchase Agreement and all contracts of the District the Parity Installment Payments under which are payable from Net Revenues on a parity with 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 term "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 of Operation The term "Date of Operation" means, with respect to any uncompleted component Parity Project, the estimated date by which such uncompleted component Parity Project will have been completed and, in the opinion of an engineer, will be ready for operation by or on behalf of the District. Debt Service The term "Debt Service"means, for any Fiscal Year, the sum of: (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 term Bonds required to be prepaid or paid in such Fiscal Year; and (4) that portion of the Parity Installment Payments required to be made during such Fiscal Year(except to the extent 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 (i) the actual rate on the date of calculation, or if the Bonds or Parity Installment Payments are not yet outstanding, the initial rate (if established and binding), (it) 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 (iii) (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 -3- DOCSSF\43372v3\22925.001 1 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 States Treasury obligations with comparable maturities plus fifty (50)basis points; 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 fund (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 Default 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. 1 of the American Institute of Certified Public Accountants. -4- DOCSS R43 3 72v3\22925.001 I Independent Financial Consultant 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 District; and (3) is not connected with the District as an officer or employee thereof, but who may be regularly retained to make reports thereto. Installment Payment Date: Parity Installment Payment Date The term "Installment Payment Date" means the fifth day prior to each Interest Payment Date, or if said date is not a Business Day, then the preceding Business Day. The term "Parity 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 Payments; Parity Installment Payments The term "Installment Payments" means the Installment Payments of interest and principal scheduled to be paid by the District under and pursuant hereto. The term "Parity Installment Payments" means the payments of interest and principal scheduled to be paid by the District under and pursuant to the Contracts. Interest Payment Date The term "Interest Payment Date" means April I and October I of each year, commencing 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. Manager 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 Revenues 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. -5- DOCSSF\43372v3\22925.0011 _ _ Operation and Maintenance Costs [NEED TO DISCUSS WHAT COSTS TO INCLUDE] The term "Operation and Maintenance Costs" means (1) costs spent or incurred for maintenance and operation of the Broadband System calculated in accordance with generally accepted accounting principles, including (among other things) the expenses of management and repair and other expenses necessary to maintain and preserve the Broadband System in good repair and working order, and including administrative costs of the District, salaries and wages of employees, payments to the Public Employees Retirement System, if any, 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 (3) all costs paid by the District under the Agreement, 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, (e)costs of capital additions, replacements, betterments, extension's 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; Parit}_Proiect 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 S 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 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. -6- DOCSSR43372v3\22925.001 1 _ . . .. . . .... ...... __ __ _ _ _ _ _ _... Revenues [NEED TO DISCUSS HOW DISTRICT WILL CHARGE FOR SERVICES] 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 generality of the foregoing, (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 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, 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 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 Comoration 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 Authorized Representative or (ii) the District by the President of its Board of Directors or its General Manager or by the Secretary of its Board of -7- DOCSS F\43372v3\22925.001 l 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. ARTICLE 1I 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. -8- DOCSSF\A3372v3\22925.0011 (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. ARTICLE III SALE AND PURCHASE OF THE PROJECT 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, 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. 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, regardless of whether the funds deposited in the Acquisition Fund are sufficient to cover all such costs and expenses. Section 3.4. Changes 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, 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. -9- DOCSSF\433720A22925.00S i 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. 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 wbieh 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. (a) The Purchase Price to be paid by the District hereunder to the Corporation is the sum of the principal amount of the District's obligations hereunder plus the 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 VII. (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 Pam. 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. -10- DOCSSF\43372OQ2925.001 I ........ ........ ...... ........ The obligation of the District to make the Installment Payments is absolute and unconditional, and until such time as the Purchase Price shall have been paid in full (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 the Project has been completed, and such payments shall not be subject to reduction whether by offset or otherwise and shall not be conditional upon the performance or nonperformance by any party of any agreement for any cause whatsoever. ARTICLE V SECURITY 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 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. 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 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 DOCSSR433720 22925.0011 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, 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) Sur»�. 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 53. Additional Contracts and Bonds. [TO BE DISCUSSED] 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, -12- DOCSS F\43372v3\22925.001 I 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 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 Ancillary Agreements. 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. -13- DOCS SF\433 72v3\22925.001 I 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 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 wom 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. Against Competitive Facilities . To the extent permitted by existing law, the District covenants that it will not acquire, construct, maintain or operate and will not permit any other public or private agency, corporation, district or political subdivision or any person whomsoever to 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. -14- DOCSSF\43372v3\22925.0011 ............... (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 Reporting. 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. (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 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 System. The District will 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 Maintenance Costs as they become due and payable. Section 6.7. Payment of Claims. The District will pay and discharge any and all lawful claims for labor, materials or supplies which, if unpaid, might become a lien on the Revenues or the 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 -15- DOCS SF\43 372v3\22925.001 I 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 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 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. (e) Any insurance required to be maintained by paragraph (a) above and, if the District determines to procure and maintain insurance pursuant to paragraph (b) above, such insurance, 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. Accounting 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 Security and Rights of the Corporation. 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 SOLELY FROM REVENUES AND IS HEREBY PROHIBITED FROM PAYING INSTALLMENT PAYMENTS FROM ANY OTHER DISTRICT FUNDS OR MONEYS. -16- DOCSSFl433720'�22925.001 1 Section 6.12. Payment of Taxes and Compliance with Governmental Regulations. The District will pay and discharge all taxes, assessments and other governmental charges which 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 Broadband System or any part thereof, but the District shall not be required to comply with any regulations or requirements so long as the validity or application thereof shall be contested in good faith. Section 6.13. Amount of Rates and Charges. [TO BE DISCUSSED] To the fullest extent permitted by law, the District shall fix, prescribe and collect rates and charges for the Broadband Service which will be at least sufficient to yield during 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 ireduced 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 Broadband Service and providing for the billing thereof and for a due date and a delinquency date for each bill. Section 6.15. Eminent Domain Proceeds. If all or any part of the Broadband System shall be taken by eminent domain proceedings,the Net Proceeds thereof shall be applied as follows: (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, suffered or to be suffered by the District by reason of such eminent domain proceedings, (ii) a general description of the additions, 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. -17- DOCSSF\43372v3V22925.0011 .. .. ..... ------ ......... 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. ARTICLE VII PREPAYMENT OF INSTALLMENT PAYMENTS Section 7.1. Prepayment. [TO BE DISCUSSED] (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 October 1, 20__ from any available funds. 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 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). 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 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. DOCSSR433720\22925.0011 ARTICLE VI11 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 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 -19- DOCSSF\43372v3\22925.0011 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 Costs; and Third, 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: (a) by mandamus or other action or proceeding or suit at law or in equity to enforce its rights against the District or any director, officer or employee thereof, and to compel the 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 assets 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. A waiver of any default or breach of duty or contract by the Corporation shall not affect any subsequent default or breach of duty or contract or impair any rights or remedies on any such subsequent default or breach of duty or contract. No delay or omission by the Corporation to exercise any right or remedy accruing upon any default or breach of duty or contract shall impair any such right or remedy or shall be construed to be a waiver of any such default or breach of duty or contract or an acquiescence therein, and every right or remedy conferred upon the Corporation by the -20- DOCSSF\43392v3\22925.0011 ........................................ ..... .... ............ ... .. .... .... ..................... ........ .................................. . .............. 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 he 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 discharged and satisfied (except for the right of the Trustee and the obligation of the District to have such moneys and such 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 -21- DOCSS F413 3 72v3\22925.001 I 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 may, however, advance moneys for any such purpose so long as such moneys are derived from a source legally available for such purpose and may be legally used by the District for 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, 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. _22_ DOCSSF\4337203 22925.0011 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 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 "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 party entitled thereto at its address set forth below, or at such other address as such party may provide to the other parry 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 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 -23- DOCSSR43372OM925.0011 Section 10.11. Effective Date. This Agreement shall become effective upon its execution and delivery, and shall terminate when the Purchase Price shall have been fully paid (or provision for the payment thereof shall have been made to the written satisfaction of the Corporation). Section 10.12. 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 permitted 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 Permitted. 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. 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- (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 shall not adversely affect the interests of the Owners of the Certificates; (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 Corporation or the District may deem necessary or desirable and which shall not adversely 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. -24- DOCSSF143372v3Q2925.001 1 No amendment without consent of the Owners may modify any of the rights or obligations of the Trustee without its written consent thereto. -25- DOCSSF,43372v3\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 _26_ DOCSSFA3372v3\22925.0011 EXHIBIT A PURCHASE PRICE 1. The principal amount of payments to be made by the District hereunder is 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 Payment Date Principal Interest 5`h Day Prior To: A-1 DOCSSF43372v3122925.0011 EXHIBIT B DESCRIPTION OF THE PROJECT The Project comprises the following described equipment and facilities: COMPONENT CONTRACT COST TOTAL B-1 DOCSSF\43372v3\22925.001I ............ EXHIBIT C [FORM OF REQUISITION NO, FOR DISBURSEMENT FROM ACQUISITION FUND] TRUCKEE DONNER-PUBLIC UTILITY DISTRICT REVENUE CERTIFICATES OF PARTICIPATION, SERIES 2000 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 under the laws of the State of California (the "District"), and as such, is familiar with the facts herein certified and is authorized I to certify the same; (ii) that, pursuant to Section 3.4 of that certain Installment Purchase Agreement, dated as of 1, 2004 (the "Trust Agreement"), by and among BNY Western Trust Company, as trustee (the "Trustee"), the Truckee Donner Public Utility District Public Financing Corporation and the District, the undersigned hereby requests the Treasurer of the District to disburse this date the following amounts from the Acquisition Fund established under the Trust Agreement, to 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 California Environmental Quality Act, as amended (Division 13 of the California Public Resources Code), prior to the expenditure of such amount for the purpose set forth on the attached Exhibit A has been received and is final; (v) that there has not been filed with or served upon the District notice of any lien, right to lien or attachment upon, or claim affecting the right to receive payment of, any of the moneys payable to any of the payees named on the attached Exhibit A, which has not been released or will not be released simultaneously with the payment of such obligation, other than materialmen's or mechanics' liens accruing by mere operation of law. TRUCKEE DON ER PUBLIC UTILITY DISTRICT General Manager C-1 DOCSSF\43372v3\22925.001 I Exhibit A ACQUISITION FUND DISBURSEMENTS Item Purpose of Number Payee Name and Address Obliaation Amount i C-2 DOCSSR433720',22925.001 I Table of Contents Page ARTICLE I DEFINITIONS Section1.1. Definitions........................................................................................................ I ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2.1. Representations by the District................. ...........................................—.........8 Section 2.2. Representations and Warranties by the Corporation........................................8 ARTICLE III SALE AND PURCHASE OF THE PROJECT Section 3.1. Purchase and Sale of the Project......................................................................9 Section3.2. Title ..................................................................................................................9 Section 3.3. Acquisition and Construction of the Project....................................................9 Section 3.4. Changes to the Project......................................................................................9 Section3.5. Acquisition Fund..............................................................................................9 ARTICLE IV INSTALLMENT PAYMENTS Section4.1. Purchase Price. .............. .............. ..............-............... ................................. 10 Section 4.2. Installment Payments ............................._........................................,...,......... 10 ARTICLE V SECURITY Section 5.1. Pledge of Revenues........................................................................................ I 1 Section 5.2. Allocation of Revenues.................................................................................. I I Section 5.3. Additional Contracts and Bonds..................................................................... 12 Section5.4. Investments..................................................................................................... 13 ARTICLE VI COVENANTS OF THE DISTRICT Section 6.1. Compliance with Installment Purchase Agreement and Ancillary Agreements13 Section 6.2. Against Encumbrances................................................................................... 14 i DOCSSF43372v3\22925.0011 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................................................................................................ 14 Section 6.6. Maintenance and Operation of the Broadband System.................................. 15 Section6.7. Payment of Claims ......................................................................................... 15 Section 6.8. Compliance with Contracts............................................................................ 15 Section6.9. Insurance. ....................................................................................................... 15 Section 6.10. Accounting Records; Financial Statements and Other Reports ..................... 16 Section 6.11. Protection of Security and Rights of the Corporation.................................... 16 Section 6.12. Payment of Taxes and Compliance with Governmental Regulations............ 17 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 Section 6.16. Further Assurances......................................................................................... 18 Section 6.17, Continuing Disclosure.................................... Error! Bookmark not defined. ARTICLE VII PREPAYMENT OF INSTALLMENT PAYMENTS Section7.L Prepayment..................................................................................................... 18 Section 7.2. Method of Prepayment................................................................................... 18 ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES OF THE CORPORATION Section 8.L Events of Default and Acceleration of Maturities.......................................... 19 Section 8.2. Application of Funds Upon Acceleration.......................................................20 Section 8.3. Other Remedies of the Corporation................................................................20 Section8.4. Non-Waiver....................................................................................................20 Section 8.5. Remedies Not Exclusive ................................................................................21 ARTICLE IX DISCHARGE OF OBLIGATIONS Section 9.1. Discharge of Obligations................................................................................21 ARTICLE X MISCELLANEOUS Section 10.1. Liability of District Limited to Revenues.......................................................22 Section 10.2. Benefits of Installment Purchase Agreement Limited to Parties....................22 Section 10.3. Successor Is Deemed Included in all References to Predecessor...................22 ii DOCSSF\433720A22925.0011 Table of Contents (continued) Page Section 10.4. Waiver of Personal Liability..........................................................................22 Section 10.5. Article and Section Headings, Gender and References,.................................23 Section10.6. Partial Invalidity.............................................................................................23 Section10.7. Assignment.....................................................................................................23 Section10.8. Net Contract...................................................................................................23 Section10.9, California Law.................................................... ...........................................23 Section10.10. Notices............................................................................................................23 Section10.11. Effective Date.................................................................................................24 Section 10.12. Execution in Counterparts..............................................................................24 Section 10.13. Indemnification of Corporation......................................................................24 Section 10.14. Amendments Permitted..................................................................................24 EXHIBIT A PURCHASE PRICE.................................................................................. A-I EXHIBIT B DESCRIPTION OF THE PROJECT.........................................................B-1 EXHIBIT C FORM OF REQUISITION NO. FOR DISBURSEMENT FROM ACQUISITION FUND..... ....................................................C-1 DOCSSF143372v3\22925.0011