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HomeMy WebLinkAbout06-01-2020 iBank - Installment Sale Agreement June 19, 2020 City of San Luis Obispo 879 Morro Street San Luis Obispo, CA 93401 California Infrastructure and Economic Development Bank 1325 J St. Suite 1823 Sacramento, CA 95814 RE: Installment Sale Agreement, By and Among the City of San Luis Obispo and the California Infrastructure and Economic Development Bank (“IBank”), dated as of June 1, 2020 Ladies and Gentlemen: In my capacity as legal counsel to the City of San Luis Obispo (the “City”) and in connection with the above described financing agreement (the “Financing Agreement”), I have examined the laws pertaining to the City; the City Charter; copies of the Financing Agreement; Resolution No. 11137 (2020 Series) adopted by the City Council on June 16, 2020 (the “Resolution”); the City of San Luis Obispo 2012 Water Revenue Refunding Bonds and the City of San Luis Obispo, California Water Revenue Refunding Bonds, Series 2018, (collectively, the “Existing Bonds”) and their respective indentures and other documents governing and securing the Existing Bonds (collectively, the “Existing Bonds Documents”); the rate and fee structure for the City’s water system; and such other information, opinions, certificates and documents as I considered necessary to render this opinion. Based upon the foregoing, it is my opinion that: (i) the City is a municipal corporation and a public instrumentality of the State of California duly organized and validly existing pursuant to the laws of the State of California; (ii) the Resolution and other actions of the City approving and authorizing the execution and delivery of the Financing Agreement were duly adopted at a meeting of the governing body of the City which was called and held pursuant to law, in accordance with the Charter and with all public notice required by law, and at which a quorum was present and acting throughout, and such approval and authority is continuing and in full force and effect as of the date hereof; (iii) the City has the full right and lawful authority to execute and deliver the Financing Agreement and the Financing Agreement has been duly authorized and executed on behalf of the -2- City and the Financing Agreement is the legal, valid and binding obligations of the City enforceable in accordance with its terms and under the Charter, except as enforcement may be limited by as limited by applicable bankruptcy, insolvency, debt adjustment, receivership, fraudulent conveyance or transfer, moratorium, reorganization, arrangements or other similar laws affecting creditors’ rights, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State or other laws or equitable principles affecting the enforcement of creditors’ rights generally; (iv) to the best of my knowledge, after due inquiry, the execution and delivery of the Financing Agreement and compliance with the provisions thereof, under the circumstances contemplated thereby, does not and will not, in any material respect, conflict with or constitute on the part of the City a breach of or default under any agreement or other instrument to which the City is a party, including the Existing Bonds and the Existing Bonds Documents, or by which it is bound or any existing law, regulation, court order or consent decree to which the City is subject; (v) the obligations of the City under the Financing Agreement (a) constitutes permitted parity obligations under the Existing Bonds Documents, and (b) are on parity with the obligations of the City under the Existing Bonds and the Existing Bonds Documents; (vi) the rates, fees and charges the City imposes on its water system customers are legal, valid and comply with California Constitution article XIIID, the statues implementing it, and the published California Appellate Court and Supreme Court decisions interpreting it; (vii) to the best of my knowledge, after due inquiry, there is no action, suit, proceeding, inquiry or investigation before or by any court or public body pending and notice of which has been received by the City or threatened against or affecting the City: (1) challenging or questioning the transactions contemplated by the Financing Agreement or any other agreement, document or certificate related to such transactions; (2) challenging or questioning the creation, organization, existence or powers of the City; (3) seeking to enjoin or restrain the execution of the Financing Agreement or the construction of the Facility (as defined in the Financing Agreement) or the collection of any of the revenues used for making payments under the Financing Agreement; (4) in any way questioning or affecting any authority for the execution of the Financing Agreement or the validity or enforceability of the Financing Agreement; or (6) in any way questioning or affecting any other agreement or instrument relating to the Financing Agreement to which the City is a party. The opinions expressed herein are based on such examination of the law of the State as I deemed relevant for the purposes of this opinion letter. I have not considered the effect, if any, of the laws of any other jurisdiction upon matters covered by this opinion letter. I have assumed the genuineness of all documents and signatures presented to me. I have assumed and relied upon the accuracy of the factual matters represented, warranted or certified in the documents. I express no opinion as to the status of the Financing Agreement, the Installment Payments or any other payments thereunder, or any other documents executed and delivered in connection with the Financing Agreement under any federal securities laws or any state securities or “Blue Sky” law or any federal, state or local tax law. Further, I express no opinion with respect to any indemnification, contribution, liquidated damages, penalty (including any remedy deemed to -3- constitute a penalty), right of set-off, arbitration, judicial reference, choice of law, choice of forum, choice of venue, non-exclusivity of remedies, waiver or severability provisions contained in the Financing Agreement. Without limiting any of the foregoing, I express no opinion as to any matter other than as expressly set forth above. I am furnishing this opinion letter as City Attorney to the City. No attorney-client relationship has existed or exists between me and iBank by virtue of this opinion letter. This opinion letter is rendered solely in connection with the financing described herein, and may not be relied upon by you for any other purpose. I disclaim any obligation to update this opinion letter. This opinion letter and the opinions expressed herein shall not extend to, and may not be used, quoted, referred to, or relied upon by any other person, firm, corporat ion or other entity without my prior written consent. Sincerely, Christine Dietrick City Attorney, City of San Luis Obispo 4133-9336-7076 CERTIFICATE OF THE CITY REGARDING PARITY OBLIGATIONS The undersigned, Derek Johnson, as City Manager of the City of San Luis Obispo (the “City”), in connection with the execution and delivery of an Installment Sale Agreement (the “2020 Obligation”), dated as of ______________, 2020, between the City and the California Infrastructure and Economic Development Bank, which 2020 Obligation is being issued as a parity obligation to the City’s outstanding 2012 Water Revenue Refunding Bonds (the “2012 Bonds”) and the City’s outstanding Water Revenue Refunding Bonds, Series 2018 (the “2018 Bonds” and, together with the 2012 Bonds, the “Parity Obligations”), hereby certifies as follows: 1. No Event of Default (or no event with respect to which notice has been given and which, on ce all notice of grace periods have passed, would constitute an Event of Default) has occurred and is continuing; 2. With respect to the 2012 Bonds, on the basis of calculations made as of the date hereof, which calculations are set forth in Exhibit A attached hereto, the amount of Net Revenues (excluding Development Impact Fees) as shown by the books of the City for the most recent completed Fiscal Year for which audited financial statements of the City are available, which are the audited financial statements of the City for the fiscal year ended June 30, 2019, are at least equal to 125% of the amount of Maximum Annual Debt Service; 3. With respect to the 2018 Bonds, on the basis of calculations made as of the date hereof, which calculations are set forth in Exhibit A attached hereto, the Adjusted Net Revenues for the most recent Fiscal Year for which audited financial statements are available, which are the audited financial statements of the City for the fiscal year ended June 30, 2019, were at least equal to 125% of the Debt Service for all Outstanding Bonds and Parity Obligations, including the Average Annual Debt Service for the 2020 Obligation, and were at least equal to 100% of the Debt Service for all obligations, including the Average Annual Debt Service for the 2020 Obligation of the City payable from Net Revenues during such fiscal year. 4. Interest on the 2020 Obligation is payable only on June 1 and December 1, and principal thereof is payable only on June 1 in any year in which principal is payable; 5. The issuance of the 2020 Obligation complies with all conditions to the issuance thereof as set forth in the applicable provisions of the Parity Obligation Documents; and 6. The City has delivered this Certificate to U.S. Bank National Association, as trustee for the Parity Obligations (the “Trustee”), and an opinion of Bond Counsel stating that the conditions precedent to the issuance of the 2020 Obligation set forth in the Indenture of Trust, dated as of January 1, 2012, between the City and the Trustee, relating to the 2012 Bonds, have been satisfied. All capitalized terms used herein which are not otherwise defined herein shall have the same meanings as set forth in the Indenture of Trust, dated as of January 1, 2012, between the City and the Trustee, relating to the 2012 Bonds or, if not defined therein, in the Indenture, dated as of July 1, 2018, between the City and the Trustee, relating to the 2018 Bonds. 2 Certificate of the City Regarding Parity Obligations City of San Luis Obispo, California 2020 IBank Loan 4133-9336-7076 IN WITNESS WHEREOF, the undersigned has hereunto set his hand on ____________. CITY OF SAN LUIS OBISPO, CALIFORNIA By Derek Johnson, City Manager A-1 4133-9336-7076 EXHIBIT A PARITY OBLIGATIONS TEST 2012 Bonds FY 2018-19 Revenues(1) $21,195,416 FY 2018-19 Maintenance and Operations Costs(2) $15,995,459 FY 2018-19 Net Revenues (3) $5,199,957 FY 2018-19 Subsidy Payments(4) $0 FY 2018-19 Adjusted Net Revenues (4) $5,199,957 Maximum Annual Debt Service (“MADS”) (5) $2,653,378 MADS Coverage Ratio (5) 196% FY 2018-19 Actual Debt Service (6) $2,019,641.69 2020 Obligations Average Annual Debt Service (6) $932,061.50 Coverage Ratio (Parity Obligations) (6) 176% Coverage Ratio (all obligations) (6) 176% (1) Source: City of San Luis Obispo fiscal year 2018-19 audited financial statements. Equals operating revenues, less development impact fees, plus other revenues. (2) Source: City of San Luis Obispo fiscal year 2018-19 audited financial statements. Does not include depreciation and amortization. (3) Revenues less Maintenance and Operations Costs. (4) As defined in 2012 Indenture. (5) Calculated in accordance with the 2012 Indenture. (6) Calculated in accordance with the 2018 Indenture. 12767-0012\2396091v16.doc INSTALLMENT SALE AGREEMENT by and between the CITY OF SAN LUIS OBISPO, as Purchaser and the CALIFORNIA INFRASTRUCTURE AND ECONOMIC DEVELOPMENT BANK (“IBANK”), as Seller ___________________ Dated as of June 1, 2020 Agreement No. ISRF 20-135 12767-0012\2396091v16.doc 1 INSTALLMENT SALE AGREEMENT THIS INSTALLMENT SALE AGREEMENT, is dated as of June 1, 2020 (as defined in Section 1.01, the “Agreement”), by and between the CITY OF SAN LUIS OBISPO, a Municipal Corporation, as purchaser (the “Purchaser”), duly organized and validly existing under the laws of the State of California, and the CALIFORNIA INFRASTRUCTURE AND ECONOMIC DEVELOPMENT BANK, as seller (“IBank”), duly organized and validly existing pursuant to the Bergeson-Peace Infrastructure and Economic Development Bank Act (the “Act,” as defined in Section 1.01). IBank and the Purchaser are hereinafter at times collectively referred to as the “Parties” and individually as a “Party.” Terms and words used herein with their initial letter, or letters, capitalized shall have the meanings set forth in Section 1.01 of this Agreement, or the meanings set forth in this paragraph, as applicable. W I T N E S S E T H: WHEREAS, the Purchaser has determined it is necessary to design and construct the Project, consisting generally of certain improvements to its System that are intended to improve System reliability, functionality, and energy efficiency; WHEREAS, the Purchaser sought financing for the Project from IBank, payable from, and secured by, Net System Revenues, and IBank wishes to provide such financing; WHEREAS, on or about June 16, 2020, the City Council of the Purchaser adopted Resolution No. 11130 (2020 Series), a copy of which is attached hereto as Exhibit A, among other things, authorizing the purchase from IBank of the Facility, to be paid from and secured by Net System Revenues, as evidenced by this Agreement; WHEREAS, the Purchaser’s staff issued Proposition 218 notices necessary for the rates and charges increases required to support the Purchaser’s System, including the Facility; WHEREAS, not having received written protests against the proposed increases from a majority of parcels subject to the revised schedule of rates and charges, the Purchaser’s City Council adopted the revised schedule of rates and charges pursuant to the terms of Resolution No. 11023 (2019 Series), and related documents, effective July 1, 2019; WHEREAS, IBank has issued, or intends to issue, its tax-exempt Proceeds Bonds, the proceeds of which may be used to provide all or a portion of the Facility Funds; WHEREAS, IBank may pledge its rights, including the rights to receive payments, under this Agreement to secure certain Secured Bonds that it has issued, or intends to issue, for the benefit of its programs, and the Purchaser acknowledges that the issuance or existence of both the Proceeds Bonds and the Secured Bonds impacts its rights and obligations as described herein; and NOW, THEREFORE, in consideration of these premises and the mutual agreements herein contained, the parties do hereby agree as follows: 2 ARTICLE I DEFINITIONS, RULES OF CONSTRUCTION, AND CONDITIONS PRECEDENT SECTION 1.01 Definitions. Unless the context clearly otherwise requires, the capitalized terms in this Agreement shall have the respective meanings set forth below. “2012 Bonds” means the $4,960,000 City of San Luis Obispo 2012 Water Revenue Refunding Bonds issued by the Purchaser on January 31, 2012. “2012 Bonds Instrument” means, collectively, any instrument evidencing, securing, or governing the 2012 Bonds, including, without limitation, the Indenture of Trust dated as of January 1, 2012 by and between the Purchaser and U.S. Bank National Association, as trustee thereunder. “2018 Bonds” means the $16,905,000 City of San Luis Obispo, California Water Revenue Refunding Bonds, Series 2018, issued by the Purchaser on July 3, 2018. “2018 Bonds Instrument” means, collectively, any instrument evidencing, securing, or governing the 2018 Bonds, including, without limitation, the Indenture dated as of July 1, 2018 by and between the Purchaser and U.S. Bank National Association, as trustee thereunder. “Act” means the Bergeson-Peace Infrastructure and Economic Development Bank Act, constituting Division 1 of Title 6.7 of the California Government Code (commencing at section 63000 thereof) as now in effect and as it may from time to time hereafter be amended. “Additional Payments” means the payments made pursuant to Section 2.06. “Agreement” means this Installment Sale Agreement, between IBank and the Purchaser, as originally entered into and as amended from time to time pursuant to the provisions hereof. “Amortization Schedule” means that certain amortization schedule attached hereto as Exhibit E. “Amortization Terms” shall have the meaning set forth in Section 2.03(d). “Authorized Prepayment Period” has the meaning set forth in Section 2.08(b). “Business Day” means any day, Monday through Friday, which is not a legal holiday of the City, the State or the Trustee. “Certificate of the Purchaser” means a written request or certificate signed by a duly authorized representative of the Purchaser. “Code” means the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder. “Criteria” means the “Criteria, Priorities, and Guidelines for the Selection of Projects for Financing under the ISRF Program” dated February 23, 2016, as may thereafter be amended from time to time. 3 “Current Guidelines” has the meaning set forth in Section 5.07(g). “Current Revenues” means revenues that are both received by the Purchaser and utilized for the payment of the Purchase Price under this Agreement within a six month period. “Debt Service” means, for any Fiscal Year, the sum of interest, and principal due and payable under this Agreement during such Fiscal Year, the IBank Annual Fee for such Fiscal Year and any Parity Debt Service for such Fiscal Year. “Development Impact Fees” means fees charged by the Purchaser for the physical facilities necessary to make a connection to the System, which fees are levied in accordance with Section 66013 of the Government Code of the State, or any successor statute. “Effective Date” means the date on which this Agreement is last executed, as set forth on the signature page hereto, and is the date this Agreement becomes effective and binding on the Purchaser and IBank, subject to this Agreement’s terms and conditions. “Enterprise Fund” means the water enterprise fund, separate and apart from the Purchaser’s general operating funds, established by the Purchaser into which all System Revenues are deposited and maintained by the Purchaser pursuant to Section 3.02 and in which IBank has a certain security interest pursuant to the terms of this Agreement. The Purchaser’s Enterprise Fund is composed of the funds received from water transmission, distribution, and sales services provided to the Purchaser’s System customers. “Event of Default” means any of the events described in Section 7.01. “Facility” means those improvements financed with the Facility Funds provided by IBank and to be sold by IBank to the Purchaser pursuant to terms and conditions of this Agreement as more particularly described in Exhibit B, hereto. “Facility Costs” means the costs of the activities set forth in Exhibit B hereto for the construction, acquisition and/or installation of the Facility, all as approved by IBank in its sole and absolute discretion. “Facility Delivery” has the meaning set forth in Section 2.02. “Facility Funds” means the moneys provided by IBank to the Purchaser, as agent for IBank, pursuant to this Agreement to purchase and/or construct the Facility as set forth in Section 2.05. The amount of Facility Funds equals the total principal component of the Purchase Price set forth in Section 2.03(b)(1). “Facility Funds Reduction” means the reduction of the total Facility Funds amount by all or a portion of the Facility Funds not disbursed previously. “Facility Funds Reduction Request” means a written request of the Purchaser to reduce the amount of total Facility funds by all or a portion of the Facility Funds not disbursed previously. 4 “Fiscal Year” means any twelve month period extending from July 1 in one calendar year to June 30 of the succeeding calendar year, both dates inclusive, or any other twelve month period selected and designated by the Purchaser as its official fiscal year period and approved by IBank. “IBank Annual Fee” means the fee payable to IBank pursuant to Section 2.06. “IBank Fiscal Year” means any twelve month period extending from July 1 in one calendar year to June 30 of the succeeding calendar year, both dates inclusive. “Independent Accountant” means any certified public accountant or firm of certified public accountants duly licensed or registered or entitled to practice and practicing as such under the laws of the State, appointed by the Purchaser who, or each of whom: (a) Is in fact independent and not under the direct or indirect control of the Purchaser or IBank; (b) Does not have any substantial interest, direct or indirect, in the Purchaser, IBank, or the Facility; and (c) Is not connected with the Purchaser or IBank as a member, officer, or employee of the Purchaser or IBank, but who may be regularly retained to make reports to the Purchaser or IBank. (d) “Independent Consultant” means any consultant or firm of such consultants judged by the Purchaser to have experience in matters relating to the collection of System Revenues or other experience with respect to the financing of System projects, as appropriate, appointed and paid by the Purchaser who, or each of whom: (a) Is in fact independent and not under the direct or indirect control of the Purchaser or IBank; (b) Does not have any substantial interest, direct or indirect, in the Purchaser or IBank; and (c) Is not connected with the Purchaser or IBank as a member, officer or employee of the Purchaser or IBank, but who may be regularly retained to make reports to the Purchaser or IBank. “Installment Payments” means the principal and interest payments to be made by the Purchaser to IBank in payment of the Purchase Price hereunder. “Interest Payment Date” means June 1 and December 1 of every year in which the Purchase Price remains unpaid. “Investment Property” means any security or obligation, any annuity contract, or any other investment-type property, but does not include any Tax Exempt Obligation unless such obligation is a “specified private activity bond” within the meaning of section 57(a)(5)(C) of the Code. 5 “IRS” has the meaning set forth in Section 5.07(g). “Kessner Complaint” means Kessner, et al. v. City of Santa Clara; et al., Santa Clara County Superior Court, Case No. 20CV364054. “Liquidated Damages Charge” has the meaning set forth in Section 2.06(a)(4). “Liquidated Damages Period” has the meaning set forth in Section 5.03(f). “Maximum Annual Debt Service” means as of the date of calculation, the greatest total Debt Service payable in any Fiscal Year during which this Agreement is in effect. “Maximum Rate” has the meaning set forth in Section 8.23. “Net System Revenues” means all System Revenues received by the Purchaser less the Operations and Maintenance Costs incurred during the period in which System Revenues were measured. “Nongovernmental Persons” means any person or entity other than any state, or political subdivision of a state, but excludes the United States and its agencies or instrumentalities. “Operations and Maintenance Costs” means the reasonable and necessary costs paid or incurred by the Purchaser for maintaining and operating the System, determined in accordance with generally accepted accounting principles, consistently applied, including all reasonable expenses of management, costs of repair, acquisition of material, equipment, electricity, fuel, or water, and all other expenses necessary to maintain and preserve the System in good repair and working order, and including all administrative costs of the Purchaser that are charged directly or apportioned to the operation of the System, such as salaries and wages of employees, overhead, taxes (if any), the cost of permits and licenses to operate the System and insurance premiums, and including all other reasonable and necessary costs of the Purchaser or charges required to be paid by it to comply with the terms hereof; but excluding in all cases depreciation, replacement and obsolescence charges or reserves therefor and amortization of intangibles. “Opinion of Counsel” means a written opinion of counsel of recognized national standing in the field of law relating to municipal bonds, appointed by the Purchaser and approved by IBank, or appointed by IBank, and in all cases paid for by the Purchaser and acceptable to IBank in its sole and absolute discretion. “Origination Fee” means a payment in the amount of $143,000 that shall be due and payable by the Purchaser on the Effective Date. “Parity Debt” means to the extent outstanding, the 2012 Bonds and the 2018 Bonds, together with any loan, bond, note, advance, installment sale agreement, capital lease or other indebtedness or agreement to incur or pay indebtedness, payable from and/or secured by a lien on the Net System Revenues , on parity with the lien established by this Agreement securing the Installment Payments and Additional Payments, issued or incurred pursuant to and in accordance with the provisions of Section 2.11. 6 “Parity Debt Instrument” means, collectively, any instrument establishing, evidencing, governing, or securing Parity Debt, including without limitation any indenture relating to such Parity Debt, as applicable, and specifically including the 2012 Bonds Instrument and the 2018 Bonds Instrument. “Parity Debt Service” means, for any Fiscal Year, the sum of the principal and interest due and payable during such Fiscal Year for all outstanding Parity Debt. “Payment Account” means the funds or accounts (or any portions of any funds or accounts), established pursuant to Section 2.03(c) hereof, that will hold monies that the Purchaser expects to use to pay the Purchase Price under this Agreement. “Phase I Environmental Site Assessment” means an investigation of the environmental condition of the Facility, including all improvements and real property as well as surrounding improvements and real property, to determine the possibility of contamination, based on visual observation, interviews with knowledgeable persons, and the review of records and databases, in a manner consistent with the current standards and practices employed typically by State Registered Environmental Assessors, or other professionals licensed in the State as engineers or geologists, performing environmental assessments in the same general geographic location as the Facility. “Phase II Environmental Site Assessment” means the in situ sampling and laboratory analysis of any contamination discovered in connection with a Phase I Environmental Site Assessment, in a manner consistent with the current standards and practices employed typically by State Registered Environmental Assessors, or other professionals licensed in the State as engineers or geologists, performing environmental assessments in the same general geographic location as the Facility. “Preliminary Costs” means architectural, engineering, surveying or soil testing costs, reports such as environmental impact reports, Phase I or Phase II Environmental Site Assessments, feasibility studies, rate studies and CEQA reports, and similar costs that are incurred prior to commencement of acquisition, construction, or rehabilitation of a project, but not land acquisition, site preparation or similar costs incident to the commencement of construction. “Prepayment Agreement” has the meaning set forth in Section 2.08(f). “Prepayment Request” means any written request of the Purchaser to prepay all or a portion of the principal component of the Purchase Price. “Prior Guidelines” has the meaning set forth in Section 5.07(g). “Prior Guidelines Service Providers” has the meaning set forth in Section 5.07(g)(2). “Proceeds Bonds” means bonds issued, or to be issued, by IBank the proceeds of which may be used, in whole or part, to provide the Facility Funds. “Prohibited Prepayment Period” has the meaning set forth in Section 2.08(a)(2). 7 “Prop 218 Law” means, collectively, the California Constitution article XIII D, the statutes implementing it, and the published California Appellate Court and Supreme Court decisions interpreting it in effect on the Effective Date and as such law may be amended or interpreted from time to time. “Purchase Price” means the principal amount plus the interest thereon owed by the Purchaser to IBank under the conditions and terms hereof for the payment of the costs of the Facility, and the incidental costs and expenses related thereto paid by IBank. “Purchaser Representative” shall have the meaning set forth in Section 8.10 hereto. “Rate Challenge” shall have the meaning set forth in Section 5.27 hereto. “Replacement Agreement Covenant” shall have the meaning set forth in Section 5.11. “Report” means a written document signed by an Independent Consultant or an Independent Accountant, and including: (a) A statement that the person or firm making or giving such Report has read the pertinent provisions of this Agreement to which such Report relates; (b) A brief statement as to the nature and scope of the examination or investigation upon which the Report is based; and (c) A statement that, in the opinion of such person or firm, sufficient examination or investigation was made as is necessary to enable said consultant to express an informed opinion with respect to the subject matter referred to in the Report. “Reporting Covenants” shall have the meaning set forth in Section 5.03(f). “Revised Amortization Schedule” shall have the meaning set forth in Section 2.03(f). “Secured Bonds” means bonds of one or more series issued, or to be issued, by IBank to which certain rights of IBank under this Agreement, including the right to receive the Installment Payments, may be from time to time pledged or assigned directly or indirectly as security for such bonds. “Senior Debt” means any loan, bond, note, advance, installment sale agreement, capital lease or other indebtedness or agreement to incur or pay indebtedness, payable from and/or secured by a lien on the Net System Revenues , which is senior to the lien established by this Agreement securing the Installment Payments and Additional Payments. “Senior Debt Instruments” means, collectively, any instrument establishing, evidencing, governing, or securing Senior Debt, including without limitation any indenture relating to such Senior Debt, as applicable. “Service Contract” has the meaning set forth in Section 5.07(g). 8 “Service Provider” has the meaning set forth in Section 5.07(g)(1). “State” means the State of California. “Subordinate Debt” means any loan, bond, note, advance, installment sale agreement, capital lease or other indebtedness or agreement to incur or pay indebtedness, payable from and/or secured by a lien on Net System Revenues , which is subordinate to the lien established by this Agreement securing the Installment Payments and Additional Payments. “Subordinate Debt Instruments” means, collectively, any instrument establishing, evidencing, governing, or securing Subordinate Debt, including without limitation any indenture relating to such Subordinate Debt, as applicable. “Subordinate Debt Service” means, for any Fiscal Year, the sum of the principal and interest due and payable during such Fiscal Year for all outstanding Subordinate Debt. “System” means the entire water production, storage, treatment, transmission, distribution, sales, and delivery system owned or operated by the Purchaser, including but not limited to all facilities, real and personal property, works, improvements, rights, and entitlements at any time owned, operated or determined to be part of the System by the Purchaser for the treatment and delivery of water, together with any necessary lands, rights, entitlements and other property useful in connection therewith, together with all extensions thereof and improvements or additions thereto hereafter acquired, constructed or installed by the Purchaser. “System Revenues” means, whenever received and including any such moneys accumulated in the Enterprise Fund at any time, all gross income and revenue received or receivable by the Purchaser from the ownership or operation of the System, determined in accordance with generally accepted accounting principles, consistently applied, including all rates, fees and charges (including connection fees and charges) received by the Purchaser for the services of the System, and all other income and revenue howsoever derived by the Purchaser from the ownership or operation of the System or arising from the System, and also including all legally available income from the deposit or investment of any money in the Enterprise Fund or any rate stabilization fund, and the proceeds of any taxes that can be used legally to pay Debt Service, but excluding in all cases any refundable deposits made to establish credit, and advances or contributions in aid of construction, and Development Impact Fees. “Tax Exempt Obligation” means any obligation the interest on which is excluded from gross income for federal income tax purposes pursuant to section 103 of the Code or section 103 of the Internal Revenue Code of 1954, as amended, and Title XIII of the Tax Reform Act of 1986, as amended, as well as stock in a regulated investment company to the extent at least ninety-five percent (95%) of income to the stockholder is treated as interest that is excludable from gross income under section 103 of the Code. “Trustee” means the trustee acting in its capacity as such in connection with any Proceeds Bonds or Secured Bonds, or any successor or assignee as therein provided, including IBank. 9 SECTION 1.02 Rules of Construction. Except where the context otherwise requires, words imparting the singular number shall include the plural number and vice versa, and pronouns inferring the masculine gender shall include the feminine gender and vice versa. All references herein to particular articles or sections are references to articles or sections of this Agreement. The headings, subheadings and Table of Contents herein are solely for convenience of reference and shall not constitute a part of this Agreement, nor shall they affect its meanings, construction or effect. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. SECTION 1.03. Conditions Precedent. IBank shall have no obligation under this Agreement until the following conditions precedent have, in IBank’s reasonable discretion, been satisfied fully. (a) IBank shall have received two (2) copies of this Agreement bearing the Purchaser’s original signature and IBank shall have counter-signed this Agreement and provided a copy of this Agreement bearing its signature to the Purchaser. Signatures received in portable document format, with original signatures to follow within a mutually-agreeable reasonable time thereafter are deemed to satisfy this condition. (b) IBank shall have received a copy of a resolution duly adopted by the Purchaser’s governing body approving entry into this Agreement in form and content acceptable to IBank, a copy of which shall be attached hereto as Exhibit A. (c) IBank shall have received an originally executed copy of an opinion of the Purchaser’s legal counsel in form and content substantially similar to the Form of Opinion of Legal Counsel to the Purchaser attached hereto as Exhibit D. (d) IBank shall have received an originally executed copy of a Certificate of the Purchaser from the Purchaser’s Utilities Engineer in form and content substantially similar to the Form of Certificate of Utilities Engineer attached hereto as Exhibit F. (e) IBank shall have received an originally executed copy of a Certificate of the Purchaser from the Purchaser’s Utilities Director in form and content substantially similar to the Form of Certificate of Purchaser’s Utilities Director attached hereto as Exhibit G. (f) The Purchaser shall have paid to IBank the Origination Fee. (g) The Purchaser shall have provided satisfactory evidence that it has expended fully its funds, or has immediately available committed funds to expend, for each of the items in Exhibit H, Schedule of Sources and Uses of Facility Funds, denoted to be the responsibility of the Purchaser, if any. (h) The Purchaser shall have provided satisfactory evidence in IBank’s reasonable discretion that as of the Effective Date the lien of this Agreement on Net System Revenues is on Parity with the liens on Net System Revenues of the 2012 Bond Instrument and the 2018 Bond Instrument. 10 ARTICLE II TERMS OF SALE SECTION 2.01 Purchase and Sale. IBank hereby agrees to sell to the Purchaser, and the Purchaser hereby agrees to purchase from IBank, the Facility under and subject to the terms of this Agreement. This Agreement constitutes a continuing agreement between the Purchaser and IBank to secure the full and final payment of the Purchase Price, subject to the covenants, agreements, provisions and conditions herein contained. SECTION 2.02 Design, Acquisition, Construction, and Sale of the Facility. (a) IBank hereby agrees to perform all necessary acts, including but not limited to acquisition, entitlement, permitting, installation, design, remediation and improvement, to construct and deliver an operational Facility (“Facility Delivery”) for the benefit of, and to sell the Facility to, the Purchaser. In order to implement this provision, IBank hereby appoints the Purchaser as its agent for the purpose of performing all necessary acts to achieve Facility Delivery; and the Purchaser hereby accepts such appointment and agrees to perform all acts necessary to achieve Facility Delivery, including, but not limited to, entry into such engineering, design and construction contracts and purchase orders as may be necessary, as agent for IBank, to achieve Facility Delivery. The Purchaser hereby agrees that as such agent it will cause the Facility Delivery to be diligently pursued and completed as soon as reasonably possible given the nature of, and inherent challenges in connection with, the construction of the Facility and prevailing market conditions. IBank hereby agrees to sell, and hereby sells, the Facility to the Purchaser. The Purchaser hereby agrees to purchase, and hereby purchases, the Facility from IBank. Notwithstanding the foregoing, it is hereby expressly understood and agreed that IBank shall have no obligations whatsoever for Facility Delivery and shall, except for providing the Facility Funds pursuant to the terms of this Agreement, be under no liability of any kind or character whatsoever for the payment of any costs or expenses incurred by the Purchaser (whether as agent for IBank or otherwise) for any of the actions associated with the Facility Delivery and that all such costs and expenses shall be paid by the Purchaser, regardless of whether Facility Funds are sufficient to cover all such costs. (b) The Purchaser represents and warrants that all construction contracts and subcontracts necessary for Facility construction have been or will be awarded pursuant to all competitive bidding requirements applicable to the Purchaser for similar construction contracts and subcontracts. (c) The Purchaser agrees to achieve Facility Delivery by July 1, 2021, or such later date as consented to by IBank (which consent shall not unreasonably withheld). (d) In the event IBank is served with a stop payment notice in connection with the Facility, the Purchaser shall within thirty (30) days (or such longer period as may be consented to by IBank, which consent shall not unreasonably withheld) cause such stop payment notice to be discharged or released, whether by payment of the sum requested in such stop payment notice, by procurement of a stop payment notice release bond, or by any other legally available means. IBank shall withhold from the Purchaser amounts sufficient to pay the claim stated in the stop payment 11 notice, and to otherwise comply with applicable law, until the Purchaser provides reasonably satisfactory evidence to IBank that such stop payment notice is released and/or discharged. SECTION 2.03 Payment of Purchase Price; Term; Interest Rates. (a) The Purchase Price to be paid by the Purchaser to IBank hereunder is the sum of the principal amount of the Purchaser’s obligation hereunder plus interest, subject to prepayment as provided in Section 2.08. Interest shall accrue on the entire principal balance, whether or not disbursed, as set forth in the Amortization Schedule. (b) For purposes of this Agreement: (1) The total principal amount of the Purchase Price to be paid by the Purchaser to IBank hereunder is $14,300,000. (2) The term of this Agreement commences on the Effective Date and ends on June 1, 2040, except as sooner terminated as set forth herein or otherwise extended. (3) The interest rate is 2.50% per annum. (c) For purposes of compliance with Federal Tax laws applicable to IBank’s Proceeds Bonds and/or Secured Bonds, the Purchaser hereby establishes a “Payment Account” within the Enterprise Fund and agrees to deposit monies intended for paying such Installment Payments in the Payment Account until the time that such Installment Payments become due and payable whereupon the Purchaser would take steps to pay Installment Payments as provided herein. (d) The Purchaser shall make Installment Payments of principal and interest as set forth in the Amortization Schedule. IBank shall calculate the Amortization Schedule based on (i) the initial principal amount of the Purchase Price as set forth in Section 2.03(b)(1) hereto, (ii) the term of this Agreement as set forth in Section 2.03(b)(2) hereto, and (iii) the interest rate as set forth in Section 2.03(b)(3) hereto (collectively, the “Amortization Terms”), and shall attach the Amortization Schedule as Exhibit E hereto upon the Effective Date. Interest shall commence to accrue hereunder on June 19, 2020, as set forth in the Amortization Schedule. All payments of interest shall be computed on the basis of a 360-day year of 12 30-day months. In the absence of manifest error, the Amortization Schedule shall be final, conclusive, and binding on the Purchaser. (1) The first principal payment shall be due June 1, 2021, as set forth in the Amortization Schedule. (2) Interest only payments will be based upon the total outstanding principal component of the Purchase Price, including the amounts not disbursed, using an interest rate of 2.50% per annum. (3) Interest shall accrue on the entire outstanding principal balance of the Purchase Price, whether or not Facility Funds have been disbursed, all as set forth in the Amortization Schedule. Provided, however, as an offset against interest paid on undisbursed Facility Funds, the Purchaser shall receive payment following the end of each IBank Fiscal Year on any undisbursed portions of the Facility Funds (excepting any undisbursed Facility Funds 12 subject to a Facility Funds Reduction, as set forth in this Agreement) of the lesser of: (i) the actual interest earned by IBank during such IBank Fiscal Year on the undisbursed portions of the Facility Funds, or (ii) the interest that would have accrued during such IBank Fiscal Year on the undisbursed portions of the Facility Funds calculated using the interest rate of this Agreement. Said reimbursement shall be in the form of a check payable to the order of the Purchaser at the address set forth in Section 8.09 of this Agreement on or about the ninetieth (90th) calendar day following the end of the IBank Fiscal Year. (e) Commencing on the day following the end of the interest only period (if any), the principal component of the Purchase Price shall be fully amortized over the remaining term of this Agreement. (f) IBank may, in its sole and absolute discretion, revise the Amortization Schedule (a “Revised Amortization Schedule”) subsequent to the Effective Date (and promptly provide the Purchaser a copy thereof) to (i) correct a computational error in the prior Amortization Schedule, (ii) account for any partial prepayment permitted under Section 2.08, or (iii) account for any Facility Funds Reduction permitted under Section 2.08. Any Revised Amortization Schedule shall be calculated (i) such that IBank will receive the aggregate sum of all principal and interest Installment Payments it would have received had the Amortization Schedule been calculated correctly based on the Amortization Terms and interest commenced to accrue on June 19, 2020, (ii) to account for any partial prepayment, or (iii) to account for any Facility Funds Reduction, as applicable. The Revised Amortization Schedule shall be incorporated herein automatically upon its completion by IBank, and in the absence of manifest error, any such Revised Amortization Schedule will be final, conclusive, and binding on the Purchaser. (g) The obligation of the Purchaser to pay the Purchase Price by paying the Installment Payments and Additional Payments is, subject to Section 5.10, absolute and unconditional. Until such time as the Purchase Price shall have been paid in full, the Purchaser shall not discontinue or suspend any Installment Payments or Additional Payments required to be paid by it under this Agreement when due, whether or not the Facility or any part thereof is operating or operable, or its use is suspended, interfered with, reduced, curtailed or terminated in whole or in part. The payment of the Installment Payments and payment of the IBank Annual Fee component of the Additional 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 to any agreement for any cause whatsoever. SECTION 2.04 Payment on Business Days. Whenever in this Agreement any amount is required to be paid on a day that is not a Business Day, such payment shall be required to be made on the Business Day immediately following such day. SECTION 2.05 Disbursement of Facility Funds. (a) IBank shall disburse Facility Funds solely for the purposes set forth in Exhibit H hereto. The aggregate sum of disbursements for each category set forth in Exhibit H shall not exceed the corresponding amounts set forth in Exhibit H. Upon compliance with disbursement 13 conditions set forth herein and receipt of a written request for disbursement, IBank will disburse a portion of the Facility Funds to the Purchaser for Facility Costs in amounts of at least five thousand dollars ($5,000), up to a total aggregate amount not to exceed the Facility Funds. All requests for payment shall be accompanied by information and documentation as may be requested by IBank to determine the amount of Facility Funds to be disbursed. (b) Each disbursement request shall specify one or more of the following for Facility Funds sought in the disbursement request: (1) The Purchaser previously paid the Facility Costs and is requesting reimbursement; or (2) The Purchaser will pay the Facility Costs directly upon receipt of funds from IBank. (a) By submitting to IBank a disbursement request of the type set forth in subparagraph (b)(1), above, the Purchaser represents and warrants that it has previously paid the Facility Costs indicated in such disbursement request. By submitting to IBank a disbursement request of the type set forth in subparagraph (b)(2), above, the Purchaser represents and warrants that it will pay the Facility Costs indicated in such request directly upon receipt of funds from IBank. (b) No Facility Funds shall be disbursed unless and until IBank receives documentation, satisfactory to IBank, demonstrating that the Purchaser has incurred costs that constitute both reasonable and necessary Facility Costs and which are consistent with the cost categories, amounts and requirements described in this Agreement. (c) Unless otherwise consented to in writing by IBank, the Purchaser must both: (1) begin Facility construction no later than six months after the Effective Date; (2) achieve Facility Delivery and commence occupation and use of the Facility by the date set forth in paragraph 2.02(c); and (3) submit final invoices to IBank for the entire amount of the Facility Funds no later than 35 months after the Effective Date. If the Purchaser fails to meet any of these conditions, IBank may, among other legally available remedies, elect to withhold any and all undisbursed Facility Funds pursuant to Section 2.14 herein. (d) Notwithstanding any contrary provisions of this Agreement or any related documents, under no circumstances will IBank be obligated to make disbursements in excess of the lesser of (i) actual Facility Costs incurred or (ii) the amount of the Facility Funds. (e) Not more than ninety-five percent (95%) of each invoice payable from Facility Funds designated for construction shall be disbursed until IBank receives a recorded notice of completion for the Facility or other evidence of completion satisfactory to IBank and the Purchaser has met all conditions precedent to final disbursement set forth herein. 14 SECTION 2.06 Additional Payments. (a) The Purchaser shall pay Additional Payments to IBank as follows: (1) A payment of the IBank Annual Fee on June 1st of each year during the term of this Agreement in an amount equal to 0.3% of the outstanding principal component of the remaining Installment Payments as set forth in the Amortization Schedule. Any unpaid portion of the IBank Annual Fee shall accrue interest at the lesser of 12% per annum or the Maximum Rate; and (2) Amounts in each year as shall be required by IBank for the payment of extraordinary expenses of IBank in connection with any amendment or modification of this Agreement requested by the Purchaser, an Event of Default, or the enforcement of this Agreement or any amendments hereto, including all expenses, fees and costs of accountants, trustees, and attorneys, litigation costs, insurance premiums and all other extraordinary costs of IBank. Extraordinary expenses and extraordinary costs are those documented expenses and costs related to this Agreement that IBank determines in its reasonable discretion to be in excess of ordinary and customary expenses and costs incurred as part of the IBank Annual Fee pursuant to this Section 2.06. IBank shall from time-to-time submit invoices to the Purchaser for such Additional Payments, together with any appropriate supporting documents for such extraordinary costs or expenses. The Purchaser shall pay such invoices by June 1st of the year in which the Borrower received them and any amounts not so paid shall accrue interest at the lesser of 12% per annum or the Maximum Rate; (b) Reserved (c) Unless expressly waived by IBank in writing, in the event the Purchaser fails to cure any Reporting Covenants noncompliance as set forth in Section 5.03(f) or fails to cure any Replacement Agreement Covenant noncompliance within 30 days after receipt by the Purchaser of the replacement agreement from IBank as set forth in Section 5.11 of this Agreement, the amount of $1,000, shall automatically be imposed monthly as liquidated damages charged to the Purchaser and not as a penalty (the “Liquidated Damages Charge”), and shall continue to be imposed throughout the Liquidated Damages Period. The Purchaser shall be obligated to pay the Liquidated Damages Charge as Additional Payments. Such Additional Payment shall be reflected in an IBank invoice to the Purchaser. The Purchaser agrees that, under the circumstances existing as of the date of this Agreement, such Liquidated Damages Charge represents a reasonable estimate of the costs and expenses IBank will incur as a result of the Purchaser’s noncompliance with the Reporting Covenants and/or the Replacement Agreement Covenant. Nothing herein shall be construed as an express or implied agreement by IBank to forbear on its exercise of any other rights or remedies provided by this Agreement, as a waiver of such rights or remedies, or as a waiver of any default or Event of Default under this Agreement. SECTION 2.07 Reserved. 15 SECTION 2.08 Limitations on Prepayment and Facility Funds Reductions. (a) Limitation on Early Prepayment. Except as provided in Section 5.10 (regarding use of Net Proceeds for prepayment), the Purchaser is not permitted to prepay all or a portion of the outstanding principal component of the Purchase Price during the period commencing with the Effective Date and ending with the date that is ten (10) years after the Effective Date (the “Prohibited Prepayment Period”). (b) Authorized Prepayment Period. At any time, after ten (10) years from the Effective Date (the “Authorized Prepayment Period), the Purchaser, upon satisfaction of the conditions of this Section 2.08, may prepay all or a portion of the outstanding principal amount of the Purchase. Further, the Purchaser shall pay to IBank all interest accrued and unpaid on the prepayment amount through the date of prepayment, plus any Additional Payments, plus the pro rata portion of the IBank Annual Fee. (c) Facility Funds Reduction. During the Prohibited Prepayment Period the amount of undisbursed Facility Funds will not be reduced and will continue to accrue interest and other charges as set forth in this Agreement. During the Authorized Prepayment Period, upon satisfaction of the conditions of this Section 2.08, the Purchaser may obtain a Facility Funds Reduction. Further, the Purchaser shall pay to IBank all interest accrued and unpaid on the Facility Funds Reduction amount through the date of the Facility Funds Reduction, plus any Additional Payments, plus the pro rata portion of the Annual Fee. (d) Written Request Required. The Purchaser must provide IBank with its Prepayment Request in writing and at least ninety (90) days prior to the requested prepayment or reduction date. IBank will not accept any prepayment funds from the Purchaser, or implement a Facility Funds Reduction, unless and until all applicable requirements of this Section 2.08 have been met. (e) Amendment for Partial Prepayment. If during the Authorized Prepayment Period the Purchaser prepays a portion of the outstanding principal component of the Purchase Price (through a prepayment pursuant to Section 2.08(c) or the obtaining of a Facility Funds Reduction pursuant to Section 2.08(d)), then IBank and the Purchaser shall enter into an amendment to this Agreement reflecting the terms of the prepayment, including a Revised Amortization Schedule, and the Purchaser shall pay to IBank all interest accrued and unpaid on the prepayment amount, plus the portion of the outstanding principal component of the Installment Payments approved for prepayment, plus any Additional Payments, plus the pro rata portion of the Annual Fee. IBank will not accept any prepayment, and any Facility Funds Reduction will not take effect, until the Parties have executed such amendment to this Agreement, provided, however, IBank shall not unreasonably delay the execution and delivery of any such amendment to this Agreement. (f) Prepayment Agreement for Full Prepayment. In the event the Purchaser elects to prepay the entire outstanding amount of the Purchase Price as set forth in paragraph 2.08(b), the Parties shall enter into a prepayment agreement (a “Prepayment Agreement”) in form and content acceptable to IBank in its reasonable discretion. IBank will not accept a full prepayment, and the Purchaser’s obligations under this Agreement will not terminate as set forth in Section 8.05 of this Agreement, until the Parties have executed a Prepayment Agreement; provided, however, IBank shall not unreasonably delay the execution and delivery of a Prepayment Agreement. 16 SECTION 2.09 Validity of Pledge and First Lien. The pledge of the Net System Revenues constitutes a valid pledge of and first position lien on all of the Net System Revenues on parity with the lien(s) securing the Parity Debt. SECTION 2.10 Limited Obligation. The Purchaser’s obligation to make Installment Payments is a special obligation of the Purchaser payable solely from Net System Revenues as provided herein and does not constitute a debt of the Purchaser or the State of California or of any political subdivision thereof within the meaning of any constitutional or statutory debt limit or restriction. SECTION 2.11 Permitted Additional Parity Debt. (a) The Purchaser may, after the Effective Date, issue or incur Parity Debt in such principal amount as shall be determined by the Purchaser subject to the requirements for additional obligations as set forth in all existing Parity Debt Instruments and the following specific conditions, which are hereby made conditions precedent to the Purchaser’s issuance and delivery of such Parity Debt, provided that to the extent that an existing Parity Debt Instrument conflicts with any of the requirements set forth in this Section 2.11, the more restrictive provision shall prevail: (1) No Event of Default hereunder or under any other instrument secured by System Revenues shall have occurred and be continuing, and the Purchaser shall otherwise be in compliance with all covenants set forth in this Agreement in all material respects; and (2) Net System Revenues calculated pursuant to generally accepted accounting principles, consistently applied, and excluding the proceeds of any taxes and also excluding any balances in any fund at the beginning of the period of the computation, as shown by the books of the Purchaser for the most recently completed Fiscal Year, or any more recent twelve month period selected by the Purchaser ending not more than sixty (60) days prior to the adoption of the resolution pursuant to which instrument such Parity Debt is issued or incurred, as shown by the books of the Purchaser, plus, at the option of the Purchaser, either or both of the items below designated in subsections (b)(1) and (b)(2), shall have amounted to at least 1.25 times the Maximum Annual Debt Service taking into consideration the maximum annual debt service payable in any Fiscal Year on the proposed Parity Debt, plus any regularly-occurring fees the Purchaser is required to pay under the applicable Parity Debt Instrument, as set forth in the Report of an Independent Accountant or Independent Consultant delivered to IBank; provided, however, that where the proposed Parity Debt is with IBank, no Report of an Independent Accountant or Independent Consultant shall be required. (b) Either or both of the following allowances may be added to Net System Revenues for the purpose of meeting the condition contained in subsection (a)(2) above: (1) An allowance for increased System Revenues from any additions to or improvements or extensions of the System to be made with the proceeds of such proposed Parity Debt, and also for System Revenues from any such additions, improvements, or extensions which have been made from moneys from any source but which, during all or any part of such Fiscal 17 Year or any more recent twelve month period, were not in service, all in an amount equal to ninety percent (90%) of the estimated additional average annual System Revenues to be derived from such additions, improvements, and extensions for the first thirty six (36) month period following closing of the proposed Parity Debt, all as shown in the Report of an Independent Accountant or Independent Consultant delivered to IBank; provided however, that in those instances where the proposed Parity Debt is with IBank, no Report of an Independent Accountant or Independent Consultant shall be required; and/or (2) An allowance for increased System Revenues arising from any increase in the charges made for service from the System which has become effective prior to the incurring of such proposed Parity Debt but which, during all or any part of such Fiscal Year or any more recent twelve (12) month period, was not in effect in an amount equal to one hundred percent (100%) of the amount by which System Revenues would have been increased if such increase to charges had been in effect during the whole of such time period and any period prior to the incurring of such proposed Parity Debt, as shown in the Report of an Independent Accountant or Independent Consultant delivered to IBank; provided however, that where the proposed Parity Debt is with IBank, no Report of an Independent Accountant or Independent Consultant shall be required. (c) For purposes of making the calculations set forth in subsection (a)(2): (1) If any Parity Debt includes capital appreciation bonds, then the accreted value payment thereof shall be deemed a principal payment and interest that is compounded and paid as accreted value shall be deemed due on the scheduled redemption or payment date of such capital appreciation bond; (2) If any Parity Debt includes interest payable pursuant to a variable interest rate formula, the variable interest rate portion of such Parity Debt for periods when the actual interest rate cannot yet be determined, shall be assumed to be the maximum interest rate under the Parity Debt. (d) The Purchaser shall deliver to IBank, prior to incurring or issuing such proposed Parity Debt, a copy of the proposed Parity Debt Instrument and Certificate of the Purchaser certifying that the conditions precedent to the issuance of such Parity Debt set forth in subsections (a) and (b) above have been satisfied and, as applicable, the Report required by subsections (a) and (b) above has been delivered; provided however, that where the proposed Parity Debt is with IBank, no copy of the proposed Debt Instrument nor Report shall be required and the certification required by this Section 2.11(d) may be made as part of the Parity Debt Instrument for the new IBank Parity Debt. (e) Notwithstanding subsections (a)(2), (b), (c), and (d) above, proposed Parity Debt to be issued for the purpose of refunding outstanding Parity Debt may be issued without compliance with subsections (a)(2), (b), (c) and (d) above, so long as such refunding results in lower Parity Debt Service in each Fiscal Year after such refunding and the final maturity date of the refunding Parity Debt is no later than the final maturity date of the refunded Parity Debt. The Purchaser shall deliver to IBank the Parity Debt Instrument for such refunding within 30 days of such Parity Debt issuance. 18 SECTION 2.12 The Purchaser’s Obligation for Other Facility Costs. The Purchaser acknowledges and agrees that the amount of IBank’s obligations under this Agreement is limited to the amount of the Facility Funds. As such, it is the Purchaser’s obligation to pay all other costs associated with or needed for completion of the Facility in excess the Facility Funds amount. SECTION 2.13 Facility Description. For the purposes of this Agreement, the description of each of the Facility shall be as set forth in Exhibit B hereto. SECTION 2.14 Withholding of Facility Funds. (a) IBank may withhold all or any portion of the Facility Funds in the event that: (1) The Purchaser has violated any of the material terms, provisions, conditions, commitments, representations, warranties, or covenants of this Agreement, as determined by IBank in its reasonable discretion, or if an Event of Default has occurred; or (2) The Purchaser is unable to demonstrate, to the satisfaction of IBank in its reasonable discretion, the ability to complete the Facility or to maintain adequate progress toward completion thereof. (b) In the event that Facility Funds are withheld from the Purchaser, IBank shall notify the Purchaser of the reasons, identify any conditions the Purchaser must satisfy in order to resume disbursements, and advise the Purchaser of the time in which to remedy the failure or violation or satisfy the applicable conditions. (c) If Facility Funds are withheld pursuant to this section, the Purchaser remains obligated to repay the entire amount of the Purchase Price but to the extent applicable, the Purchaser may submit to IBank a Facility Funds Reduction Request pursuant to Section 2.08. SECTION 2.15 Reserve Account. In the event that (i) the Purchaser incurs Parity Debt after the Effective Date in accordance with the requirements of Section 2.11; and (ii) such Parity Debt requires the Purchaser to establish a reserve fund or account, unless waived in writing by IBank the Purchaser shall establish, fund, and maintain, so long as any obligations under this Agreement remain outstanding, a reserve account in favor of IBank in an amount equal to the reserve requirement of such Parity Debt multiplied by the proportion of the outstanding principal balance of the Purchase Price of this Agreement to the Parity Debt Amount. By way of example only, if the Parity Debt is in the amount of $10,000,000 and the reserve requirement for such Parity Debt is $1,000,000, and the outstanding principal balance of the Purchase Price is $5,000,000, then the reserve fund or account to be established in favor of IBank pursuant to this Section 2.15 shall be equal to $500,000 (({outstanding balance of Purchase Price}/$10,000,000) x $1,000,000). Said reserve account shall be established and funded immediately upon the closing of the Parity Debt transaction. 19 SECTION 2.16 Permitted Subordinate Debt. The Purchaser may issue or incur Subordinate Debt following the Effective Date in such principal amount as shall be determined by the Purchaser subject to the following specific conditions precedent to the issuance or incurrence of such Subordinate Debt. (a) No Event of Default hereunder, and no default under any other obligation or instrument secured by Net System Revenues, shall have occurred and be continuing, and the Purchaser shall be in compliance with all covenants of this Agreement and any other instrument securing, evidencing, governing, or relating to other obligations secured by, Net System Revenues. (b) Net System Revenues calculated pursuant to generally accepted accounting principles, consistently applied, and excluding the proceeds of any taxes and also excluding any balances in any fund at the beginning of the period of the computation, as shown by the books of the Purchaser for the most recently completed Fiscal Year, or any more recent twelve (12) month period selected by the Purchaser ending not more than sixty (60) days prior to the adoption of the resolution pursuant to which instrument such Subordinate Debt is issued or incurred, as shown by the books of the Purchaser, shall have amounted to at least 1.10 times the aggregate sum of the Maximum Annual Debt Service of all debt secured by Net System Revenues and the maximum annual debt service payable in any Fiscal Year on all Subordinate Debt, including the proposed Subordinate Debt, plus any regularly-occurring fees the Purchaser is required to pay under any applicable Parity Debt Instrument, as set forth in the Report of an Independent Accountant or Independent Consultant delivered to IBank. ARTICLE III PLEDGE OF REVENUES; APPLICATION OF FUNDS SECTION 3.01 Pledge of Net System Revenues. The Installment Payments and Additional Payments and all Parity Debt shall be equally secured by a pledge of and first lien on all of the Net System Revenues, without preference or priority for series, issue, number, dated date, sale date, date of executio n or date of delivery. The Purchaser hereby grants a lien securing the obligations of this Agreement on Net System Revenues, without any physical delivery thereof or further act, and such lien shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the Purchaser. Neither the Installment Payments, the Additional Payments nor this Agreement is a debt of IBank, the State or any of its political subdivisions (other than the Purchaser) and neither IBank, the State nor any of its political subdivisions (other than the Purchaser) is liable thereon. Pursuant to Section 5451 of the Government Code of the State, the pledge of the Purchaser’s Net System Revenues for the repayment of the principal of, premium, if any, and interest components of the Installment Payments constitutes a first lien and security interest which immediately attaches to such Net System Revenues, and is effective and binding against the Purchaser and its successors and creditors and all others asserting rights therein irrespective of whether those parties have notice of the pledge, irrespective of whether such amounts are or may be deemed to be a fixture and without the need for physical delivery, recordation, filing or further act. 20 SECTION 3.02 System Revenues to be Deposited in the Enterprise Fund. In order to carry out its obligation to pay the Installment Payments and Additional Payments, the Purchaser agrees and covenants that it shall maintain the Enterprise Fund as a distinct fund separate and apart from the Purchaser’s other funds. All System Revenues received by it shall be deposited when and as received in trust in the Enterprise Fund and shall be applied and used only as and in the order provided herein: The Purchaser shall pay all Operations and Maintenance Costs (including amounts reasonably required to be set aside in contingency reserves for Operations and Maintenance Costs the payment of which is not then immediately required) from the Enterprise Fund as they become due and payable, and all remaining money on deposit in the Enterprise Fund shall then be used to pay Section 3.03 amounts. After making all the set asides and payments hereinabove required to be made in each Fiscal Year, the Purchaser may expend in such Fiscal Year any remaining money in the Enterprise Fund for any lawful purpose of the Purchaser. The Purchaser agrees and covenants to maintain the Enterprise Fund so long as any portion of the Purchase Price remains unpaid. SECTION 3.03 Priority of Payments Made from the Enterprise Fund. The Purchaser shall promptly pay the following amounts in the following order and at the following times: (a) Installment Payments and Additional Payments. (1) The Purchaser shall promptly pay to (A) IBank (i) the principal portion of the Installment Payments, together with the IBank Annual Fee, which is due at IBank by June 1st of each year, as set forth on the Amortization Schedule, and (ii) the interest portions of Installment Payments, which are due at IBank by each Interest Payment Date, as set forth in the Amortization Schedule; and (B) the trustee(s) or holder(s) of any Parity Debt, payment of Parity Debt Service as it becomes due and payable, all on a pro rata basis. (2) The Purchaser shall promptly pay to (A) IBank Additional Payments due pursuant to Section 2.06, and (B) the trustee(s) or holder(s) of any other Parity Debt, payment of any payments due under the applicable Parity Debt Instrument that are not Parity Debt Service, all on a pro rata basis. (b) Reserve Accounts. Any amounts needed to replenish reserve accounts established hereunder or for any Parity Debt, all on a pro rata basis. (c) Approved Subordinate Debt Payments. Payment of Subordinate Debt Service, together with payment of any sums due under the applicable Subordinate Debt Instrument that are not Subordinate Debt Service. all as it becomes due and payable on Subordinate Debt pursuant to Subordinate Debt issued or incurred in accordance with Section 2.16 hereof. 21 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER SECTION 4.01 Organization; Authority. The Purchaser is duly organized and existing as a municipal corporation under the laws of the State and has all necessary power and authority to enter into and perform its duties (including, but not limited to, the authority to set rents, fees, rates and charges without the approval of any other governing body and to pledge the Net System Revenues ) under this Agreement. SECTION 4.02 Agreement Valid and Binding. This Agreement has been duly authorized, executed and delivered by the Purchaser and constitutes the legal, valid and binding obligation of the Purchaser, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, debt adjustment, receivership, fraudulent conveyance or transfer, moratorium, reorganization, arrangements or other similar laws affecting creditors’ rights, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State or other laws or equitable principles affecting the enforcement of creditors’ rights generally. SECTION 4.03 No Conflict in Execution of Agreement. The execution and delivery by the Purchaser of this Agreement and compliance with the provisions hereof will not conflict with or constitute a breach of or default by the Purchaser under any law, administrative regulation, court decree, resolution, charter, by-law, or any agreement to which the Purchaser is subject or by which it is bound or by which its properties may be affected. SECTION 4.04 No Litigation. Except for the Kessner Complaint, there is no action, suit, proceeding or investigation at law or in equity before or by any court or governmental agency or body pending and notice of which has been received by the Purchaser or, to the best of the Purchaser’s knowledge, threatened against the Purchaser to restrain or enjoin the execution or delivery of this Agreement, or in any way contesting or affecting the validity of this Agreement, or contesting the powers of the Purchaser to enter into or perform its obligations under this Agreement, or that would affect the Purchaser’s ability to perform its obligations under this Agreement, including, but not limited to, the pledge of Net System Revenues. SECTION 4.05 No Breach or Default. The Purchaser is not in breach of or in default under any applicable law or administrative regulation of the State or the United States, the Constitution of the State (including article XVI, section 18 thereof), any applicable judgment or decree, any agreement, indenture, bond, note, resolution, agreement or other instrument to which the Purchaser is a party or is otherwise subject which, if not resolved in favor of the Purchaser, would have a material adverse impact on the Purchaser’s ability to perform its obligations under this Agreement and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a 22 default or an event of default under any such instrument which, if not resolved in favor of the Purchaser, would have a material adverse impact on the Purchaser’s ability to perform its obligations under this Agreement. SECTION 4.06 No Consent, Approval, or Permission Necessary. No consent or approval of any trustee or holder of any indebtedness of the Purchaser, any entity to which the Purchaser is a member, or any other third party, and no consent, permission, authorization, order or licenses of, or filing or registration with, any governmental authority, is necessary in connection with the execution and delivery of this Agreement or the consummation of any transaction contemplated herein, except as have been obtained or made and as are in full force and effect. SECTION 4.07 Accuracy and Completeness of Information Submitted to IBank. The information relating to the Purchaser and its System generated and submitted by the Purchaser, and to the best of the Purchaser’s knowledge the information relating to the Purchaser and the System generated by third parties, and in either case delivered by the Purchaser to IBank, including, but not limited to, all information in the application for Facility Funds, was true at the time submitted to IBank and, as of the Effective Date, remains true and correct in all material respects; and such information did not and does not contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made. SECTION 4.08 Financial Statements of the Purchaser. The Purchaser’s financial statements that have been furnished to IBank were prepared in conformity with generally accepted accounting principles, consistently applied, and fairly present in all material respects the financial condition of the Purchaser as of the date thereof and the results of its operations for the period covered thereby. As of the Effective Date, to the best of the Purchaser’s knowledge, there has been no material adverse change in the business, condition (financial or otherwise), or operations of the Purchaser since the date of such financial statements. Notwithstanding the foregoing, the Purchaser is uncertain of the economic effect of the novel coronavirus pandemic, as a result of which the Governor of the State proclaimed a State of Emergency on March 4, 2020, and is unable to ascertain the degree to which such economic effect will, or will not, impact the Purchasers Net System Revenues and sums within the Enterprise Fund. SECTION 4.09 Licenses, Permits, and Approvals for Completion of Facility. The Purchaser has obtained, or has applied for and will obtain within a timeframe sufficient for the Purchaser to achieve Facility Delivery and to operate the Facility by the date set forth in paragraph 2.02(c), all licenses, entitlements, certificates, authorizations, permits and approvals from any governmental agency or authority having jurisdiction over the Purchaser or the Facility required to commence construction of the Facility, for Facility Delivery, and to commence operations of the Facility. 23 SECTION 4.10 Authority to Operate the System. The Purchaser has obtained all licenses, entitlements, certificates, authorizations, permits, and approvals from any governmental agency or authority having jurisdiction over the Purchaser or the System required for the operation of the System. SECTION 4.11 Valid Title; No Conflict. (a) The Purchaser, upon completion of the Facility, will have good and valid title to the Facility sufficient to carry out the purposes of this Agreement. (b) To the best of the Purchaser’s knowledge no officer, member of the Board of Directors, or official of IBank has any material interest in the Facility, the Purchaser, or in the transactions contemplated by this Agreement. IBank represents to the Purchaser that, to the best of the IBank’s knowledge no officer, member of the Board of Directors, or official of IBank has any material interest in the Facility, the Purchaser, or in the transactions contemplated by this Agreement. SECTION 4.12 Other Liens; No Lien Senior to IBank Lien. Except as may otherwise be described herein, as of the Effective Date, there is no other debt or obligation that places a lien on or in any way encumbers the Purchaser’s Net System Revenues other than the first lien established by Section 3.01 of this Agreement, and, to the extent outstanding, the lien established by the 20012 Bonds Instrument and/or the 2018 Bonds Instrument. Further, the Purchaser represents and warrants that the lien on Net System Revenues established by Section 3.01 of this Agreement is not junior to any lien. SECTION 4.13 Purchaser’s Compliance with Prop 218 Law. The Purchaser hereby represents and warrants that, as of the Effective Date, the rates, fees and charges it imposes on its System customers are legal, valid, and comply with the Prop 218 Law. The Purchaser further specifically warrants and represents that (i) the rates, fees and charges it imposes on its System customers do not exceed, in the aggregate, the funds required to operate the System, and (ii) its method of allocating rates, fees and charges among users of the System complies with the proportionality requirements of the Prop 218 Law. IBank acknowledges the Purchaser has provided notice of the Kessner Complaint, in which certain plaintiffs alleged, among other things, that the Purchaser has failed to comply with Prop 218 Law. SECTION 4.14 No Challenge to Purchaser’s Rates, Fees and Charges. The Purchaser hereby represents and warrants that, as of the Effective Date, there is no action, suit, proceeding or investigation at law or in equity before or by any court or governmental agency or body pending and notice of which has been received by the Purchaser or, to the best of the Purchaser’s knowledge, threatened challenging Purchaser’s compliance with the Prop 218 Law as it applies to Purchaser’s rates, fees and charges, except for the Kessner Complaint. 24 SECTION 4.15 Purchaser’s Compliance with Conditions Precedent to Parity Debt Set Forth in 2012 Bonds Instrument and 2018 Bonds Instrument. The Purchaser represents, warrants, and by the execution of this Agreement certifies as of the Effective Date, that (1) all conditions under the 2012 Bonds Instrument and the 2018 Bonds Instrument precedent to the lien of this Agreement being on parity with the lien imposed by the 2012 Bonds Instrument and the 2018 Bonds Instrument have been satisfied, and (2) the lien of this Agreement is on equal priority position with the liens of each of the 2012 Bonds Instrument and the 2018 Bonds Instrument. SECTION 4.16 Continuing Validity of Representations and Warranties. Unless the representations and warranties set forth in this Article IV are limited by their express terms to a specific time period or a point in time, the foregoing representations and warranties are true, accurate, and correct as of the Effective Date and shall continue to be true, accurate, and correct throughout the term of this Agreement. ARTICLE V AFFIRMATIVE COVENANTS OF THE PURCHASER SECTION 5.01 Punctual Payment. The Purchaser hereby covenants to punctually pay, or cause to be paid, all payments required hereunder when due and in all other respects in strict conformity with the terms of this Agreement, and to faithfully observe and perform all of the conditions, covenants, and requirements of this Agreement. SECTION 5.02 Payment of Claims. The Purchaser hereby covenants that, from time to time, it will pay and discharge, or cause to be paid and discharged, any and all lawful claims for labor, materials or supplies, which, if unpaid, might become liens or charges upon the System and all personal and real property related thereto, or upon the System Revenues or any part thereof, or upon any funds in the hands of IBank, or which might impair the security for the payment of the Installment Payments or Additional Payments. Provided, however, nothing herein contained shall require the Purchaser to make any such payment so long as the Purchaser in good faith shall contest the validity of said c laims and shall act promptly to remove any liens or charges arising from said claims, by, among other things, obtaining surety bonds to cause the release of such liens or charges. SECTION 5.03 Books and Accounts; Financial Statements. (a) The Purchaser hereby covenants that it will keep proper books of record and accounts in which complete and correct entries shall be made of all transactions relating to the System Revenues. Such books of record and accounts shall at all times during business hours be subject to the inspection of IBank or its designee. To the extent that any continuing disclosure certificates entered into by the Purchaser in connection with other debt or obligations require the information required in subsections (b) 25 through (e), the Purchaser may submit a copy of the information and materials required by such continuing disclosure certificate instead of providing separate statements setting forth the required information. (b) The Purchaser shall prepare and file with IBank annually as soon as practicable, but in any event not later than one hundred eighty (180) days after the close of each Fiscal Year, so long as this Agreement has not been discharged by IBank, an audited financial statement of the Purchaser relating to the System Revenues and the Enterprise Fund for the preceding Fiscal Year, prepared by an Independent Accountant under generally accepted accounting procedures, consistently applied; provided, however, that in the event that such audited financial statement is not available by the above-referenced filing date, an unaudited financial statement may be substituted therefore. In the event an unaudited financial statement is submitted, the Purchaser shall file the audited financial statement with IBank as soon as it becomes available. The Purchaser will furnish to IBank such reasonable number of copies of such audited financial statements as may be required by IBank for distribution (at the expense of the Purchaser). Alternatively, the Purchaser may furnish electronic copies of such audited financial statements to IBank in portable document format, or other format acceptable to IBank in its sole and absolute discretion. (c) Simultaneously with the delivery of the annual financial statements, or more frequently following forty-five (45) calendar days’ written notice by IBank, as IBank shall determine in its sole and absolute discretion, the Purchaser shall deliver to IBank a Certificate of the Purchaser stating the following: (1) The number of System users as of the end of the Fiscal Year, or as of any other date specified in writing by IBank in its reasonable discretion; (2) Calculation of the coverage ratios described in Section 5.06 for the Fiscal Year most recently ended, or for any other 12-month period as specified in writing by IBank in its reasonable discretion, together with a certification that adopted rates and charges comply with the requirements of that section; (3) Notification of the withdrawal of any System user generating four percent (4%) or more of System Revenues since the last reporting date; (4) Any significant System facility retirements or expansions planned or undertaken since the last reporting date; (5) Notification of any Parity Debt or Subordinate Debt incurred since the last reporting date and certification that there has been no default or noncompliance under any obligation secured by System Revenues; (6) Certification that (i) no Event of Default has occurred or is continuing and no other event has occurred or is continuing, which, with the passing of time or the giving of notice or of both, would constitute an Event of Default, or (ii) describing in detail any Event of Default that has occurred and/or any event that has occurred which, with the passing of time or giving or giving of notice, would constitute an Event of Default; 26 (7) Certification that the Purchaser is in compliance in all material respects with the terms of this Agreement, including without limitation the Tax Covenants set forth in Section 5.07 hereof, or if the Purchaser has breached any such covenant, a detailed description of such breach; (8) Notification of any other event or circumstance that would materially affect completion of the Facility or the payment of the Purchase Price; (9) To the extent the 2012 Bonds Instrument and/or the 2018 Bonds Instrument continue to impose a lien on Net System Revenues , certification that the Purchaser has in all material respects complied with, kept, observed, and performed, and continues to comply with, keep, observe, and perform, all requirements, conditions, covenants, duties, and terms thereunder for the lien on Net System Revenues created by this Agreement to be on parity with the lien on Net System Revenues created under the 2012 Bonds Instrument and/or the 2018 Bonds Instrument, including, but not limited to, satisfying any debt service coverage and reserve account requirements; and (10) Such other information as IBank may request in its reasonable discretion. (d) Subject to any legal requirements regarding the confidentiality or privacy of such information, the Purchaser shall, upon request, furnish to IBank, in a format provided by IBank, information concerning employment and other public benefits connected to the Facility. (e) The Purchaser agrees to notify IBank, immediately, by telephone promptly confirmed in writing, if any representation made in this Agreement or any representation made in the application for financing to IBank shall at any time so long as this Agreement is outstanding prove untrue or incorrect in any manner that could materially adversely affect the Purchaser’s ability to perform its obligations under this Agreement. Further, the Purchaser agrees to notify IBank, immediately, by telephone promptly confirmed in writing, if there is a stop payment notice, litigation or any other legal proceeding which may materially adversely impact the completion of the Facility. Additionally, the Purchaser agrees to notify IBank, immediately, by telephone promptly confirmed in writing, if the Purchaser breaches any covenant set forth in this Agreement. (f) The Purchaser’s covenants set forth in paragraphs 5.03(b) through (d) hereof are hereinafter referred to as the “Reporting Covenants.” SECTION 5.04 Protection of IBank’s Security and Rights. The Purchaser will preserve and protect the security for payment of the Installment Payments and the rights of IBank thereto. From and after the Effective Date, the payment of Installment Payments and the Annual Fee component of Additional Payments under this Agreement shall be incontestable by the Purchaser. SECTION 5.05 Payments of Taxes and Other Charges. The Purchaser will pay and discharge, or cause to be paid and discharged, all taxes, service charges, assessments and other governmental charges, or charges in lieu thereof, which may hereafter be lawfully imposed upon the Purchaser (to the extent impacting the System or System 27 Revenues), the System, or the System Revenue when the same shall become due. Nothing herein contained shall require the Purchaser to make any such payment so long as the Purchaser in good faith shall contest the validity of said taxes, assessments, or charges and shall have adequate funds for the payment thereof. The Purchaser will duly observe and conform to all valid requirements of any governmental authority relative to the System or any part thereof. SECTION 5.06 Maintenance of System Revenues; Rate Covenant. (a) The Purchaser hereby covenants that, to the fullest extent permitted by law, it will fix, prescribe, charge, and collect, or cause to be fixed, prescribed, charged, and collected, in each Fiscal Year, such rates, fees, and charges for the use of and for the service furnished by the System so that Net System Revenues realized (excluding any Development Impact Fees), together with any amounts on deposit in a rate stabilization fund held by the Purchaser, are in an amount which will be sufficient to be at least equal to 125% of annual Debt Service, and at least equal to 110% of the sum of annual Debt Service and annual Subordinate Debt Service for such Fiscal Year. (b) The Purchaser further covenants that, to the fullest extent permitted by law, it will fix, prescribe, charge, and collect, or cause to be fixed, prescribed, charged, and collected, in each Fiscal Year, such rates, fees, and charges for the use of and for the service furnished by the System so that System Revenues realized are in an amount which will be sufficient to pay the following amounts in the following order or priority: (1) All Operations and Maintenance Costs estimated by the Purchaser to become due and payable in such Fiscal Year; (2) The Installment Payments, the IBank Annual Fee, and the principal, interest, and any regulalry-occurring fees provided for under any Parity Debt Instrument for any outstanding Parity Debt, as each becomes due and payable during such Fiscal Year, without preference or priority; (3) All amounts, if any, required to restore the balance of any reserve fund required under this Agreement or any reserve fund or accounts required under any Parity Debt Instrument, for any outstanding Parity Debt, to the full amount of any such reserve requirement; and (4) All payments required to meet any other obligations of the Purchaser which are charges, liens, or encumbrances upon, or with are otherwise payable from, the System Revenues or the Net System Revenues during such Fiscal Year, including any Additional Payments. (c) If for any reason Net System Revenues, or System Revenues, as applicable, prove insufficient to comply with the requirements of subsections (a) and (b), the Purchaser first will engage an Independent Consultant to recommend revised rents, rates, fees, charges, savings, or assessments, or any combination thereof, and the Purchaser will, subject to any applicable requirements and restrictions imposed by law, including, but not limited to, the Prop 218 Law, and subject to the good faith determination of the Purchaser that such recommendations, in whole or in part, are in the best interests of the Purchaser, take all actions necessary to increase System Revenues through any combination of increased rents, rates, fees, charges, savings, or assessments 28 and that it will do so not later than one year following the date on which Net System Revenues first fail to meet the requirements of this Section 5.06. The Purchaser may make adjustments from time to time in such rents, rates, fees, and charges and may make such classification thereof as it deems necessary, but shall not reduce the rents, rates, fees, and charges then in effect unless the Net System Revenues from such reduced rents, rates, fees, and charges will at all times be sufficient to meet the requirements of this section. Notwithstanding the foregoing, in lieu of taking the preceding actions with respect to the Purchaser’s failure to comply with subsection (a), the Purchaser may within one hundred eighty (180) days following the date Net System Revenues first fail to meet the requirements of subsection (a) either establish and fund a rate stabilization fund, or increase monies held in an existing rate stabilization fund, in an amount sufficient to satisfy the requirements of subsection (a). If the Purchaser elects to proceed accordingly, it shall provide to IBank within such one hundred eighty (180) day period evidence satisfactory to IBank in its reasonable discretion that the amounts held in such rate stabilization fund are sufficient to satisfy the requirements of subsection (a). SECTION 5.07 Tax Covenants. The Purchaser recognizes that the Facility Funds may be derived from the proceeds of, or payments made hereunder may be pledged to secure, bonds issued or to be issued by IBank, the interest on which is excluded from gross income for federal income tax purposes under Section 103 of the Code. In order to maintain the tax-exempt status of, and perform its obligations with respect to, the Proceeds Bonds and Secured Bonds, the Purchaser will not take any action, or fail to take any action, if such action or failure to take such action would adversely affect the exclusion from gross income of the interest on the Proceeds Bonds or Secured Bonds under the Code, and the Purchaser specifically agrees to comply with all terms and conditions contained herein and to provide annual certification of its compliance with the tax covenants set forth in this Section 5.07. The Facility consists of certain improvements to the System, and, to the extent appropriate for purposes of the covenants set forth in this Section 5.07, the Facility will be treated as used on the same basis as the System. The Purchaser will not directly or indirectly use or make any use of the Facility Funds or any other funds of the Purchaser, or take or omit to take any action, if such use or action would cause the Proceeds Bonds or Secured Bonds to be “arbitrage bonds” subject to federal income taxation by reason of section 148 of the Code. In addition, the Purchaser covenants and agrees that it, and/or any party related to it, will not acquire Proceeds Bonds or Secured Bonds in an amount related to the amount of the Facility Funds. The provisions of this Section 5.07 shall survive the discharge of the Purchaser’s obligations hereunder and shall apply to the Trustee or any other successor or assignee described in Section 8.02. (a) Eligible Uses of Facility Funds. Unless otherwise agreed to by IBank, Facility Funds shall be used exclusively for the following purposes: (i) to pay or reimburse the Purchaser for capital expenditures paid with respect to the Facility that meet the requirements of subsection (b) of this Section 5.07; (ii) the Origination Fee; and (iii) initial operating expenses directly associated with the Facility (in aggregate amount not exceeding five percent (5%) of the amount of the Facility Funds). (b) Allocation of Facility Funds to Expenditures. On May 21, 2019, the Purchaser adopted a resolution stating its official intent to be reimbursed from the proceeds of a borrowing to finance costs of the Facility (the "Reimbursement Resolution"). Absent written agreement by 29 IBank, all expenditures of Facility Funds will be used to pay or reimburse the Purchaser for capital expenditures with respect to the Facility that are either: (1) costs that are Preliminary Costs incurred with respect to the Facility prior to the start of construction and in an aggregate amount not exceeding twenty percent 20% of the Facility Funds; (2) costs paid by the Purchaser no earlier than the date which is sixty (60) days prior to the date of the adoption of the Reimbursement Resolution; or (3) costs paid by the Purchaser on or after the Effective Date. In addition, Facility Funds shall be allocated to paying or reimbursing the Purchaser for capital expenditures no later than eighteen months after the later of the date the expenditure was paid or the date the Facility is placed in service, but in the case of costs described in clause (2), above, such allocations must be made in all events no later than three years after the cost was paid. (c) Prohibited Uses of Facility Funds. The Purchaser will not loan any of the Facility Funds to any other person or entity. The Purchaser will not use Facility Funds directly or indirectly to make principal, interest, or premium payments with respect to any bond, note, certificate of participation or other obligation of the Purchaser or any person or entity that is a related party to the Purchaser within the meaning of Treasury Regulation Section 1.150-1(b). (d) Expectations Regarding Facility Funds and Facility; No Change in Use. The Purchaser reasonably expects and consistent with this Section 5.07 hereof to use all Facility Funds and all of the Facility for the entire stated term to maturity of this Agreement. The Purchaser does not expect that the Facility or any part thereof will be sold or otherwise disposed of so long as the Purchaser’s obligations under this Agreement are not discharged. Absent written agreement by IBank, the Purchaser hereby agrees that it will use all Facility Funds and all of the Facility as set forth in this Section 5.07. (e) Funds for Making Installment Payments. All amounts used to fund the Payment Account will be deemed to have been made from the Purchaser’s funds by using a last-in, first-out accounting method, and amounts in the Payment Account will be treated as used to pay the Installment Payments by using a first-in, first-out accounting method. The Purchaser agrees that the amounts used to pay Installment Payments shall be both received by the Purchaser and utilized for the payment of Installment Payments within a ninety (90) day period. The Payment Account will be used primarily to achieve a proper matching of revenues and Installment Payments within each year; a matching of revenues means that revenue and Installment Payments come in and go out at approximately the same level and the Payment Account is cleared out to a very low balance at least one time during the year. Current Revenues in the Payment Account shall be invested without regard to yield so long as the Purchaser complies with this section. (f) Nongovernmental Use of Facility Funds and Facility. The Purchaser understands that the Facility Funds and the Facility are subject to certain restrictions on the use of the Facility Funds or the Facility by any Nongovernmental Person, other than use as a member of the general public. For this purpose a Nongovernmental Person will be treated as “using” Facility Funds to the extent the Nongovernmental Person: 30 (1) borrows Facility Funds; (2) acquires an ownership or lease interest with respect to any portion of the Facility; (3) uses any portion of the Facility (e.g., as a service provider, operator, or manager), except pursuant to a contract that meets the requirements of subsection (g) of this Section 5.07; or (4) in the case of a Facility that provides water, electricity, or natural gas, acquires such output from the Facility (except pursuant to generally applicable and uniformly applied rates that are available to the general public). The Purchaser hereby represents and covenants that it will not allow more than five percent (5%) of the Facility Funds or more than five percent (5%) of the Facility to be used directly or indirectly by any Nongovernmental Person, other than as a member of the general public. (g) Management Contracts. The Purchaser understands that an arrangement with any person or organization (other than a state or local governmental unit) which provides for such person or organization to manage, operate, maintain or provide services with respect to the Facility (a “Service Contract”) can give rise to use by a Nongovernmental Person that is subject to the limitations of Section 5.07(f) of this Agreement. However, as of the Effective Date the Internal Revenue Service (“IRS”) has issued two sets of guidelines that describe situations in which the IRS would rule that a Service Contract will not be treated as giving rise to a Nongovernmental Person’s use of the Facility: (i) the guidelines set forth in Revenue Procedure 97-13, as amended by Revenue Procedure 2001-39, and as amplified by Notice 2014-67 (the “Prior Guidelines”); and (ii) the guidelines set forth in Revenue Procedure 2017-13 (the “Current Guidelines”). The Purchaser may apply the Prior Guidelines to any Service Contract entered into before August 18, 2017 that is not modified materially or extended on or after that date (other than pursuant to a renewal option as defined in Treasury Regulation Section 1.141-1(b)). The Purchaser may apply the Current Guidelines to Service Contracts entered into at any time. Commencing with the Effective Date, at least thirty (30) days prior to the execution of any modification to, extension or renewal of, or new operations and maintenance agreement relating to the Facility or the portion of the System directly affected by the Facility, the Purchaser shall (i) ensure that any such instrument meets the requirements for qualified management contracts under the Code, and (ii) provide IBank a copy of any such instrument together with an explanation of the basis for its conclusion that such instrument meets the requirements for qualified management contracts under the Code. Provided, however, the Purchaser is not obligated to provide to IBank contracts for services that are solely incidental to the primary governmental function, or functions, of the Facility or the portion of the System directly affected by the Facility (e.g., contracts for janitorial services, landscaping services, office equipment repair, escalator repair, elevator repair, auditing services, legal services, or similar services). (1) Current Guidelines. Service Contracts that relate to the use or operation of the Facility by “service providers,” as that term is used in the Current Guidelines (the “Service 31 Providers”), will satisfy the Current Guidelines if the requirements of each of the following subsections is satisfied: (i) The compensation of the Service Provider under the contract must be reasonable for the services rendered. (ii) The contract must not provide to the Service Provider a share of net profits from the operation of the Facility. Compensation to the Service Provider will not be treated as providing a share of net profits if no element of the compensation takes into account, or is contingent upon, either the Facility’s net profits or both the Facility’s revenues and expenses for any fiscal period. For this purpose, the elements of the compensation are the eligibility for, the amount of, and the timing of the payment of the compensation. Further, solely for purposes of determining whether the amount of the compensation meets the requirements of this section 5.07(g)(1)0, any reimbursements of actual and direct expenses paid by the Service Provider to unrelated parties are disregarded as compensation. Incentive compensation will not be treated as providing a share of net profits if the eligibility for the incentive compensation is determined by the Service Provider's performance in meeting one or more standards that measure quality of services, performance, or productivity, and the amount and the timing of the payment of the compensation meet the requirements of this section 5.07(g)(1)(ii). (iii) The contract must not, in substance, impose upon the Service Provider the burden of bearing any share of net losses from the operation of the Facility. An arrangement will not be treated as requiring the Service Provider to bear a share of net losses if: (A) The determination of the amount of the Service Provider's compensation and the amount of any expenses to be paid by the Service Provider (and not reimbursed), separately and collectively, do not take into account either the Facility’s net losses or both the Facility’s revenues and expenses for any fiscal period, and (B) the timing of the payment of compensation is not contingent upon the Facility’s net losses. For example, a Service Provider whose compensation is reduced by a stated dollar amount (or one of multiple stated dollar amounts) for failure to keep the Facility’s expenses below a specified target (or one of multiple specified targets) will not be treated as bearing a share of net losses as a result of this reduction. (iv) Without regard to whether the Service Provider pays expenses with respect to the operation of the Facility without reimbursement by the qualified user (e.g., the Purchaser), compensation for services will not be treated as providing a share of net profits or requiring the Service Provider to bear a share of net losses under sections 5.02(2) and 5.02(3) of the Current Guidelines if the compensation for services is: (A) based solely on a capitation fee, a periodic fixed fee, or a per-unit fee; (B) incentive compensation described in the last sentence of section 5.02(2) of the Current Guidelines; or (C) a combination of these types of compensation. (v) Deferral due to insufficient net cash flows from the operation of the Facility of the payment of compensation that otherwise meets the requirements of sections 5.02(2) and 5.02(3) of the Current Guidelines will not cause the deferred compensation to be treated as contingent upon net profits or net losses under sections 5.02(2) and 5.02(3) of the Current Guidelines if the contract includes requirements that: (A) the compensation is payable at least annually; (B) the qualified user is subject to reasonable consequences for late payment, such as reasonable interest rate charges or late payment fees; and (C) the qualified user will pay such 32 deferred compensation (with interest or late payment fees) no later than the end of five years after the original due date of the payment. (vi) The term of the contract, including all renewal options, must not be greater than the lesser of 30 years or 80 percent of the reasonably expected useful life of the Facility. For this purpose, economic life is determined in the same manner as under section 147(b) of the Code as of the beginning of the term of the contract. A contract that is materially modified with respect to any matters relevant to section 5 of the Current Guidelines is retested under section 5 of the Current Guidelines as a new contract as of the date of the material modification. (vii) The qualified user must exercise a significant degree of control over the Facility. Service Contract provides such control if it requires the qualified user to approve: (A) The annual budget of the Facility; (B) Capital expenditures with respect to the Facility (for this purpose, a qualified user may show approval of capital expenditures for the Facility by approving an annual budget for capital expenditures described by functional purpose and specific maximum amounts); (C) each disposition of property that is part of the Facility; (D) rates charged for use of the Facility (for this purpose, a qualified user may show approval of rates charged for use of the managed property by either expressly approving such rates (or the methodology for setting such rates) or by including in the Service Contract a requirement that the Service Provider charge rates that are reasonable and customary as specifically determined by an independent third party); and (E) the general nature and type of use of the Facility (for example, the type of services). (i) The qualified user bears the risk of loss upon damage or destruction of the Facility (for example, upon force majeure). A qualified user does not fail to meet this risk of loss requirement as a result of insuring against risk of loss through a third party or imposing upon the Service Provider a penalty for failure to operate the Facility in accordance with the standards set forth in the Service Contract. (ii) The Service Provider must agree that it is not entitled to and will not take any tax position that is inconsistent with being a Service Provider to the qualified user with respect to the Facility. (iii) The Service Provider must not have a role or relationship with the qualified user (e.g., the Purchaser) that, in effect, substantially limits the ability of the qualified user to exercise its rights, including cancellation rights, under the Service Contract, based on all the facts and circumstances. Accordingly: 33 (A) Not more than 20 percent of the voting power of the governing body of the qualified user (or IBank) in the aggregate may be vested in the Service Provider and its directors, officers, shareholders, partners, members and employees. (B) The governing body of the qualified user does not include the chief executive officer of the Service Provider or the chairperson (or equivalent executive) of the Service Provider’s governing body. (C) The chief executive officer of the Service Provider is not the chief executive officer of the qualified user or any related person (within the meaning of Treasury Regulation 1.150-1(e)) to the qualified user. For purposes of this section 5.07(g)(1)(x), the phrase Service Provider includes related persons (within the meaning of Treasury Regulation 1.150-1(e)) and the phrase “chief executive officer” includes a person with equivalent management responsibilities. (iv) the Service Provider’s use of the Facility that is functionally related to and subordinate to the performance of its services under a Service Contract for the Facility that meets the conditions of Section 5 of the Current Guidelines does not result in private business use of the Facility. (2) Prior Guidelines. Service Contracts that relate to the use or operation of the Facility by a “service provider,” as that term is used in the Prior Guidelines (the “Prior Guideline Service Providers”), will satisfy the Prior Guidelines if, among other ways of satisfying the Prior Guidelines, the requirements of each of the following requirements is satisfied: (i) The compensation of the Prior Guidelines Service Provider under the contract must be reasonable for the services rendered. (ii) The contract must not provide for any compensation for services based, in whole or in part, on a share of net profits from the operation of the Facility. Generally, compensation is not based on a share of net profits if such compensation is based on a “capitation fee” or a “per-unit fee.” Under the Prior Guidelines, “capitation fee” means a fixed periodic amount for each person for whom the Prior Guidelines Service Provider assumes the responsibility to provide all needed services for a specified period (so long as the quantity and type of services actually provided to covered persons varies substantially). Under the Prior Guidelines, a “per-unit fee” means a fee based on a unit of service provided (e.g., a stated dollar amount for each specified medical procedure performed). Further, compensation based on a percentage of gross revenues or a percentage of expenses (but not both) will generally not be considered as based on a share of net profits. (iii) A productivity reward for services in any annual period during the term of the contract generally also does not cause the compensation to be based on a share of net profits of the financed facility if (a) the eligibility for the productivity award is based on the quality of the services provided under the management contract, rather than increases in revenues or decreases in expenses of the facility; and (b) the amount of the productivity award is a stated dollar amount, a periodic fixed fee, or a tiered system of stated dollar amounts or periodic fixed fees based solely on the level of performance achieved with respect to the applicable measure. 34 (iv) A Service Contract providing for a compensation arrangement that satisfies any one of the following paragraphs will meet the Prior Guidelines: (A) All of the compensation for services is based on a stated amount; periodic fixed fee; a capitation fee; a per-unit fee; or a combination of the preceding. The compensation for services also may include a percentage of gross revenues, adjusted gross revenues, or expenses of the facility (but not both revenues and expenses). The term of the contract, including all renewal options, does not exceed five years. Such contract need not be terminable by the Purchaser prior to the end of the term. For purposes of this subsection 5.07(g)(2)(iv)(A), a tiered productivity award as described in subsection 5.07(g)(2)(iii) will be treated as a stated amount or a periodic fixed fee, as appropriate. (B) For a contract with a term, including renewal options, that is not longer than (i) the lesser of 10 years or 80 percent of the reasonably expected useful life of the financed property, or (ii) the lesser of 15 years or 80 percent of the reasonably expected useful life of the financed property, at least 80 percent (in the case of a contract with a term described in (i) hereof) or at least 95 percent (in the case of a contract with a term described in (ii) hereof) is based on a periodic fixed fee. For purposes of this paragraph, a fee does not fail to qualify as a periodic fixed fee as a result of a one-time incentive award during the term of the contract under which compensation automatically increases when a gross revenue or expense (but not both) is reached if that award is equal to a single, stated dollar amount. (v) he Prior Guidelines Service Provider may not have a role or relationship with the qualified user (or the Purchaser) that, in effect, substantially limits the ability of the qualified user to exercise its rights, including cancellation rights, under the Service Contract. Accordingly, not more than 20 percent of the voting power of the governing body of the qualified user (or the Purchaser) in the aggregate may be vested in the Prior Guidelines Service Provider and its directors, officers, shareholders and employees. Furthermore, the group of persons belonging to both the governing board of the qualified user (or the Purchaser) and the Prior Guidelines Service Provider may not include the chief executive officers of the qualified user (or the Purchaser) and the Prior Guidelines Service Provider, or their respective governing bodies. Finally, neither the qualified user nor the Purchaser may be members of the same “controlled group” (within the meaning of Treasury Regulations § 1.150-1(f)) or related person as the Prior Guidelines Service Provider. (h) No Other Replacement Proceeds. The Purchaser is not using any Facility Funds and hereby agrees that it will not use any Facility Funds to replace funds of the Purchaser which are or will be used to acquire Investment Property reasonably expected to produce a yield that is materially higher than the yield on the Installment Payments under this Agreement. (i) Federal Guarantee. The Purchaser will not directly or indirectly use or permit the use of any Facility Funds or take or omit to take any action that would cause the Proceeds Bonds or Secured Bonds to be obligations that are “federally guaranteed” within the meaning of section 149(b) of the Code. In furtherance of this covenant, the Purchaser will not allow the payment of principal or interest under this Agreement to be guaranteed (directly or indirectly) in whole or in part by the United States or any agency or instrumentality thereof. 35 (i) No Hedge Bonds. The Purchaser reasonably expects that more than eighty-five percent (85%) of the Facility Funds will be expended for the purposes of this Agreement within three years of the Effective Date. SECTION 5.08 Maintenance and Operation of System. The Purchaser hereby covenants that, so long as any portion of the Purchase Price is unpaid, it will at its own cost and expense maintain, preserve, keep, and operate the System, and every portion thereof, in good condition, repair and working order as necessary to operate the System for its intended purpose in compliance with all laws, rules, regulations, codes, and ordinances, subject only to normal wear and tear and that it will from time to time make or cause to be made all necessary and proper repairs, replacements, and renewals necessary to maintain the System in such a condition. The Purchaser will maintain in full force and effect all licenses, permits, and approvals required by any governmental agency or authority having jurisdiction over the Purchaser or the System at any time required for the operation of the System, and will obtain any licenses, permits, or approvals that may be required in the future by any governmental agency or authority having jurisdiction over the Purchaser or the System, all in a timely manner so as to prevent any interruption in System activities. IBank will have no responsibility or obligation for any of these matters. The Purchaser further covenants that it will operate the System in an efficient and economical manner, and will pay all Operations and Maintenance Costs as they become due and payable. SECTION 5.09 Assumption of Obligations. The obligations of the Purchaser under this Agreement may not be assumed by another entity except in connection with a transfer of the entire System by the Purchaser and only upon prior written approval of IBank and receipt by IBank of: (a) an Opinion of Counsel experienced in matters relating to the tax-exempt status of interest on any Proceeds Bonds or Secured Bonds, and approved by IBank, to the effect that such transfer would not cause interest on the Proceeds Bonds or Secured Bonds to be included in gross income of the holders thereof for federal income tax purposes; (b) a Report signed by an Independent Consultant or Independent Accountant concluding that such transfer would not materially adversely affect the security for the Installment Payments, Additional Payments, or the rights of IBank; and (c) evidence satisfactory to IBank that the entity assuming the Purchaser’s obligation hereunder is eligible pursuant to the Act. SECTION 5.10 Damage, Destruction, Title Defect, and Condemnation; Use of Net Proceeds. (a) If prior to the termination of the term hereof (i) the System or any part thereof is damaged or destroyed (each of which is hereinafter called “Damaged Improvements”) by a peril covered by a policy of insurance described in Section 5.22 hereof (an “Insured Peril”); or (ii) title to, or the right to possession, use, or occupancy, whether permanent or temporary, of, the System or any portion thereof or the estate of the Purchaser in the System or any portion thereof is defective 36 or shall be taken under the exercise of the power of eminent domain by any governmental body or by any person or firm or corporation acting under governmental authority, then the Purchaser will cause the net proceeds of any loss or claim paid by an insurer under an insurance policy, or condemnation award, resulting from any damage, destruction, loss of use, loss of possession, or impairment of title to the System or any part thereof, (the “Net Proceeds”) to be transferred to IBank and applied as follows: (1) Net Proceeds Exceeding Costs. Within one hundred twenty (120) days of the date of said Insured Peril, the Purchaser shall obtain written estimate(s) of the (i) cost of the repair, replacement, and reconstruction of the Damaged Improvements (collectively referred to herein as the “Reconstruction”), and (ii) Net Proceeds available to pay such costs. Copies of such estimate(s) shall be provided to IBank. If the one hundred twenty (120) day period is insufficient to obtain said estimates, the period may be reasonably extended by the Purchaser. If the Net Proceeds exceed the estimated costs of Reconstruction, the Damaged Improvements shall be repaired, replaced, and reconstructed to the same or better quality as existed before the damage occurred. The Purchaser shall commence and manage the Reconstruction and shall complete the Reconstruction as soon as reasonably possible after the occurrence of such damage. Any balance of Net Proceeds remaining after the Reconstruction has been completed shall be transferred, pro rata based on outstanding principal amount, to IBank and to any trustee or holder of any Parity Debt, for the payment of outstanding amounts under this Agreement and any such Parity Debt Instrument. Net Proceeds remaining after payment of the amounts specified in the previous sentence shall be transferred to the Purchaser. (2) Costs Exceeding Net Proceeds. If the estimated costs of Reconstruction exceed the Net Proceeds the Purchaser, in its sole discretion, may elect to budget and appropriate to the Reconstruction the amount of such excess, and to manage the Reconstruction as set forth in Section 5.10(a)(5). The Purchaser shall exercise this election by written notice thereof delivered to IBank within thirty (30) days after the Purchaser obtains the written estimate(s). (3) Net Proceeds Sufficient to Prepay All Unpaid Installment Payments. If the Purchaser does not exercise the election to reconstruct pursuant to the above subsection and Net Proceeds are at least sufficient to prepay all unpaid amounts of the Purchase Price, any due and owing Additional Payments, and any unpaid Parity Debt, such Net Proceeds shall be transferred to IBank to prepay such Purchase Price and any due and owing Additional Payments, and to any trustee or holder of any Parity Debt to prepay such Parity Debt. If the Net Proceeds exceed such amounts, the Purchaser shall be entitled to the amount of proceeds remaining after such prepayment. (4) Net Proceeds Insufficient to Prepay All Unpaid Installment Payments. If the Purchaser does not exercise the election to reconstruct pursuant to Section 5.10(a)(2) and Net Proceeds are insufficient to prepay the unpaid Purchase Price hereunder and any outstanding Parity Debt, the Purchaser, in its sole discretion, may elect to budget and appropriate funds to cause the prepayment of the Purchase Price and due and owing Additional Payments, together with any outstanding amounts under any Parity Debt, and the Net Proceeds, together with such funds, shall be transferred to IBank and the holders or trustees of any Parity Debt, as applicable, with directions to apply the proceeds to the prepayment of the Purchase Price and due and owing Additional Payments, and outstanding amounts under any Parity Debt; provided, that if the Purchaser elects 37 not to appropriate funds for such prepayment, the Purchaser shall apply Net Proceeds to the Reconstruction. If the Purchaser, in its sole discretion, elects to budget or appropriate funds for the prepayment of the unpaid Purchase Price, due and owing Additional Payments, and outstanding amounts under any Parity Debt, the Purchaser shall transfer such funds to IBank for the prepayment of Purchase Price and due and owing Additional Payments and to the trustees or holders, as applicable, of any outstanding Parity Debt for the prepayment of such Parity Debt. (5) Management of Reconstruction. If the System or any part thereof becomes Damaged Improvements, the Purchaser shall promptly cause, manage, and supervise the Reconstruction. SECTION 5.11 Entry into Replacement Agreement. The Purchaser acknowledges that IBank intends to issue, has issued, or may issue, Secured Bonds or Proceeds Bonds subsequent to the Effective Date of this Agreement, and that one requirement of the Secured Bonds and/or Proceeds Bonds will be the re-entry by the Purchaser into an agreement to replace this Agreement. So long as the terms of the replacement agreement are substantially identical to the term of this Agreement, the Purchaser hereby covenants and agrees to execute the replacement agreement and any related documents and to provide required certifications in a timely manner. The Purchaser understands and acknowledges that time is of the essence with respect to entry into such replacement agreement as such timing is mandated by Federal tax laws applicable to IBank’s Proceeds Bonds and/or Secured Bonds. The Purchaser’s covenant set forth in this Section 5.11 is hereinafter referred to as the “Replacement Agreement Covenant.” SECTION 5.12 Further Assurances. The Purchaser will adopt, make, execute, and deliver any and all such further resolutions, instruments, and assurances as may be reasonably required by IBank as necessary or proper to carry out the intention or to facilitate the performance of this Agreement and for the better assuring and confirming unto IBank of the rights, remedies, and benefits provided in this Agreement. SECTION 5.13 Agreement to Complete Facility Delivery. (a) The Purchaser agrees that it will perform all acts necessary to complete Facility Delivery, and construct, acquire, improve or install other facilities and real and personal property deemed by the Purchaser necessary for the operation of Facility. The Purchaser may supplement or amend the Facility description with written approval from IBank from time to time, provided that no such supplement or amendment shall (1) cause the Facility or any portion thereof to fail to constitute an eligible project under the Act, or (2) in any way affect the tax-exempt status of any Proceeds Bonds or Secured Bonds. (b) At any time, upon request of IBank, the Purchaser agrees to make available to IBank for review and copying all then current plans and specifications for the Facility. The Purchaser may identify any proprietary information in such plans and specifications and, to the extent legally permissible, IBank agrees to keep such information confidential. Provided, however, for the avoidance of doubt, and not by limitation of the foregoing, IBank may disclose any such confidential information in connection with any Proceeds Bonds or Secured Bonds or in 38 the event IBank is served with a subpoena, a valid discovery request, a notice to appear and produce documents, or a valid California Public Records Act request, seeking, or that could be construed reasonably as seeking, such confidential information. (c) As soon as the Facility is completed, the Purchaser shall evidence such completion by providing a certificate to IBank stating that (i) construction of the Facility has been completed substantially in accordance with the final plans and specifications therefor and all labor, services, materials, and supplies used in construction have been paid for, and (ii) all other facilities necessary in connection with the Facility have been constructed, acquired, and installed in accordance with the final plans and specifications therefor, and all costs and expenses incurred in connection therewith have been paid. Notwithstanding the foregoing, such certificate may state that it is given without prejudice to any rights of the Purchaser against third parties for the payment of any amount not then due and payable which exist at the date of such certificate or which may subsequently exist. (d) The Purchaser shall notify IBank forthwith upon the filing of a stop payment notice in connection with the Facility, the tender of a claim against any payment or performance bond related to the Facility, the recordation of a mechanics lien against Facility, the filing of litigation in connection with the Facility, the issuance of a mandatory or prohibitory injunction related to the Facility, or any other legal proceeding which may impact the completion of the Facility. SECTION 5.14 Collection of Rates, Fees and Charges. The Purchaser will have in effect at all times rules and regulations requiring each user of the System to pay the rates, fees, and charges applicable to the services provided by the System to each user. Except under circumstances required by law, including Executive Order N-42-20, the Purchaser will not permit any part of the System or any facility thereof to be used or taken advantage of free of charge by any corporation, firm, or person, or by any public agency (including the United States of America, the State, and any city, county, district, political subdivision, public corporation, or agency of any thereof); provided, that the Purchaser may without charge use the services provided by the System. SECTION 5.15 The Purchaser’s General Responsibility. The Purchaser is solely responsible for the Facility Delivery and the operation and maintenance of the Facility. Any review or approval of plans, specifications, bid documents, or other construction documents by IBank is solely for the purpose of proper administration of Facility Funds by IBank and shall not be deemed to relieve or restrict the Purchaser’s responsibility or result in any duty, obligation, or responsibility on the part of IBank or the officers and agents thereof. SECTION 5.16 The Purchaser’s Assurances and Commitments. (a) Compliance with Laws, Regulations and the Criteria. The Purchaser shall at all times comply, and require its direct contractors, and their subcontractors, to comply with all State prevailing wage laws, all applicable federal and State laws, rules and regulations, the Criteria (except for any Criteria requirement that the Purchaser pre- 39 qualify direct contractors for the Facility using the Department of Industrial Relation’s model pre- qualification questionnaire, which requirement the IBank Board of Directors waived), and all local ordinances applicable to the Facility. This specifically includes, but is not limited to environmental, procurement and safety laws, rules, regulations and ordinances. The Purchaser acknowledges and agrees that under no circumstances would its failure to act in accordance with the provisions of this subsection (a) result in any duty, obligation or responsibility on the part of IBank or the officers and agents thereof. (b) Facility Construction Activities. The Purchaser shall ensure that adequate supervision and inspection of Facility construction activities are maintained. IBank, either by itself or through its designee, reserves the right to conduct an audit of the Purchaser’s construction expenditures during construction and for up to three years following receipt by IBank of notice of completion or other evidence of completion satisfactory to IBank. IBank, at its discretion, may require the Purchaser to conduct an interim and/or a final audit at the Purchaser’s expense, such audit to be conducted by and a Report prepared by an Independent Accountant. SECTION 5.17 Facility Access. The Purchaser shall ensure that IBank or its designee have suitable access to the Facility site at all reasonable times so long as the Purchase Price remains unpaid, and at any time in the event of an IRS audit directly or indirectly related to the Facility, and shall include provisions ensuring such access in all contracts and subcontracts relating to the Facility. SECTION 5.18 Operation and Maintenance of the Facility. The Purchaser agrees to commence operation of the Facility upon the completion thereof. The Purchaser covenants and agrees that it will, at its own cost and expense, operate and maintain the Facility and every portion thereof, in accordance with all governmental laws, ordinances, approvals, rules, codes, regulations, and requirements including, without limitation, such zoning, sanitary, pollution and safety ordinances and laws, and such rules and regulations thereunder as may be binding upon the Purchaser. The Purchaser further covenants and agrees that it will, at its own cost and expense, maintain, preserve, keep, and operate the Facility and will maintain, keep, preserve, and operate the same, now or hereafter at any time constituting part of the Facility, in good repair, working order and condition as necessary to operate the Facility for their intended purposes, subject only to normal wear and tear, and that it will from time to time make or cause to be made all needful and proper replacements, repairs, renewals, and improvements, in each case to the extent necessary so that the efficiency and value of the Facility shall not be impaired. IBank shall have no responsibility or obligation for any of these matters or for the making of additions or improvements to the Facility. SECTION 5.19 Performance and Payment Bonds. (a) The Purchaser shall require its direct contractor(s) for the Facility to certify under penalty of perjury, and provide the Purchaser with a copy of such certification, which shall be available for IBank’s inspection, if requested, that, in connection with the construction of the Facility, it has obtained a bond or bonds by one or more authorized surety companies satisfactory 40 to the Purchaser; such surety companies must be authorized to do business in California , be an admitted surety insurer, and have an agent for service of process in California. (b) Said bonds shall be in the following amounts and for the following purposes: (i) a performance bond(s) in an amount not less than one hundred percent (100%) of the total amount of the construction agreement(s) for the Facility, guaranteeing the faithful performance of the terms of the Facility construction agreement(s), including the maintenance of the work required under the Facility construction agreement(s) for a period of one year from the date of the Purchaser’s final acceptance, and the prompt correction of any defective work or labor done, or defective materials furnished, pursuant to the Facility construction agreement(s) and (ii) a payment bond(s) in an amount not less than one hundred percent (100%) of the total amount of the Facility construction agreement(s), securing payment to the subcontractors and to persons renting equipment or furnishing labor or materials to such subcontractors or to the Purchaser’s direct contractors, or to any other claimant as defined in Civil Code Section 8004, under the Facility construction agreement(s). SECTION 5.20 Continuing Disclosure. Upon IBank’s reasonable request, the Purchaser shall to furnish certain financial and operating data pertaining to the Purchaser that may be required to enable: (i) IBank to issue any, or perform its obligations under existing, Proceeds Bonds or Secured Bonds; (ii) any underwriter of any Proceeds Bonds or Secured Bonds to comply with Rule 15c2-12(b)(5) of the Securities and Exchange Commission; or (iii) IBank to comply with any audit, rating agency request, or State law. SECTION 5.21 Notice of Purchaser Event of Default. The Purchaser covenants that it will deliver to IBank, immediately after the Purchaser shall have obtained knowledge of the occurrence of an Event of Default or a failure as described in Section 7.01, the written statement of an authorized officer of the Purchaser setting forth the details of such Event of Default or failure, and the action which the Purchaser proposes to take with respect thereto. SECTION 5.22 Maintenance of Insurance. (a) The Purchaser will procure and maintain or cause to be procured and maintained insurance on the System with responsible insurers, in such amounts and against such risks (including damage to or destruction of the System) as are usually covered in connection with systems similar to the System. Provided, however, such insurance shall be in an amount at least equal to the full replacement value of the Facility. Such insurance may be subject to a deductible clause of not to exceed one hundred thousand dollars ($100,000) or such greater amount as may be covered by any self-insurance or self-funding method or plan permitted by this Section. (b) The Purchaser shall procure and maintain, or cause to be procured and maintained a standard commercial general liability insurance policy in protection of the Purchaser, the IBank and their directors, officers and employees and, when requested by the IBank, the Trustee, indemnifying and defending such parties against direct or contingent loss or liability for damages for personal injury, death or property damage related to the possession, operation or use of the 41 System, with a minimum combined single limit of one million dollars ($1,000,000) for personal injury or death of one or more persons, and for property damage, in each accident or event (subject to a deductible clause of not to exceed one hundred thousand dollars ($100,000) or such greater amount as may be covered by any self-insurance or self-funding method or plan permitted by this Section). IBank shall be named as an additional insured, and when requested by IBank the Trustee shall also be named as an additional insured. (c) The Purchaser will cause to be procured and maintained a standard, commercially reasonable, commercial general liability policy of the direct contractor(s) for the Facility with a minimum combined single limit of one million dollars ($1,000,000) for personal injury or death of one or more persons, and for property damage, in each accident or event (subject to a deductible clause of not to exceed one hundred thousand dollars ($100,000). The Purchaser and IBank shall each be named as an additional insured under such insurance policy. The Purchaser shall also cause to be procured and maintained a standard, commercially reasonable, worker’s compensation insurance policy of the direct contractor(s) for the Facility in an amount equal to at least the required statutory minimum. The Purchaser and IBank shall each be named as an additional insured under such insurance policy. (d) The Purchaser will cause to be procured and maintained by its direct contractor(s) a builder’s risk insurance policy in an amount equal to the lesser of the Facility Funds or the amount of the Purchaser’s direct contract(s) for the construction of the Facility. (e) With respect to the insurance described in subsections (a) and (b) above, the Purchaser may maintain such insurance through a combination of self-insured retention (in an amount not to exceed $500,000) and risk sharing pool coverage programs administered by a joint powers authority formed in the State. The Purchaser shall on the Effective Date, and annually on each anniversary of the Effective Date thereafter, provide a Certificate of the Purchaser to IBank certifying that the insurance required under this Section 5.22 is in effect, together with copies of the declarations pages for each policy required hereunder and each additional insured endorsement required hereunder. SECTION 5.23 Facility Construction. (a) The Facility is described in Exhibit B and the Purchaser shall make no changes thereto or the operation thereof without the prior written consent of IBank, which consent shall be granted or denied in IBank’s reasonable discretion. Further, IBank may condition any such consent upon receipt of an Opinion of Counsel to the effect that any such changes will not affect the qualification of the Facility for tax exempt financing under the Code. (b) The Purchaser shall not enter into a contract for the construction of the Facility unless it is in the form of a fixed price construction contract. SECTION 5.24 Compliance with Contracts. The Purchaser will use good faith effort to comply with, keep, observe, and perform all agreements, conditions, covenants, and terms, express or implied, required to be performed by it contained in all contracts for the use of the System, and all other contracts affecting or involving the System to the extent that the Purchaser is a party thereto. 42 SECTION 5.25 Maintenance of Lien Parity. To the extent the 2012 Bonds Instrument and/or the 2018 Bonds Instrument continue to impose a lien on Net System Revenues , the Purchaser will at all times comply with, keep, observe, and perform all requirements, conditions, covenants, duties, and terms set forth therein for the lien on Net System Revenues created by this Agreement to be on parity with the lien on Net System Revenues created by the 2012 Bonds Instruments and/or the 2018 Bonds Instrument. SECTION 5.26 Covenant to Comply with Prop 218 Law. The Purchaser shall at all times ensure that the rates, fees and charges imposed on its System customers comply with the Prop 218 Law. In the event any party (or parties) institutes litigation or an administrative proceeding challenging the Purchaser’s rates and charges or any other aspect of its compliance with Prop 218 Law (collectively, a “Rate Challenge”), the Purchaser shall as soon as practicable, but no later than 30 days after the Purchaser receives actual notice of the Rate Challenge, provide IBank with written notice of such Rate Challenge. Further, the Purchaser will expeditiously take steps to (i) diligently defend against the Rate Challenge; or (ii) conform its rates or other practices in a manner that fully addresses the deficiencies underlying the Rate Challenge. The Purchaser shall provide IBank with a second written notice indicating its chosen course of action as soon as practicable. ARTICLE VI NEGATIVE COVENANTS OF THE PURCHASER SECTION 6.01 Limitation on Additional Obligations; No Senior Debt. The Purchaser hereby covenants that, until the Purchase Price has been paid in full and this Agreement has been discharged pursuant to Section 8.05, the Purchaser shall not after the date of this Agreement issue or incur any Senior Debt and shall not issue any bonds, notes, or other obligations, enter into any agreement or otherwise incur any loans, advances, or obligations, which are in any case secured by a lien on all or any part of Net System Revenues that is on parity with the lien established hereunder for the security for the payment of the Installment Payments and Additional Payments, excepting only Parity Debt meeting the requirements of Section 2.11 herein. The Purchaser may issue or incur Subordinate Debt upon compliance with the requirements of Section 2.16 herein. SECTION 6.02 Disposition of Property. The Purchaser hereby covenants that it will not authorize or effect the disposition of real or personal property constituting more than ten percent (10%) of the value of the System, measured over the term of this Agreement, unless the Purchaser first obtains and provides a copy to IBank, of: (i) a Report of an Independent Consultant concluding that such disposition will not substantially adversely affect the security for the payment of the Installment Payments and Additional Payments; and (ii) an Opinion of Counsel concluding that such disposition will not cause the interest on any Secured Bonds or Proceeds Bonds to no longer be excluded from federal gross income. The Purchaser hereby covenants that it will not dispose of any portion of the Facility while the Purchase Price is unpaid except for property that is not operating or is worn out, and for the dedication of public streets and public and private utility easements. 43 ARTICLE VII EVENTS OF DEFAULT AND REMEDIES SECTION 7.01 Events of Default and Acceleration. (a) Each of the following events shall constitute an Event of Default hereunder: (1) Failure by the Purchaser to pay any Installment Payment, accrued interest, prepayment premium (if any), or any Additional Payment when and as the same shall become due and payable; (2) Failure by the Purchaser to observe and perform any of the covenants, agreements or conditions on its part contained in this Agreement, other than as referred to in the preceding subsection (1), or if any representation or warranty fails to be true and correct in all material respects, for a period of sixty (60) days after written notice has been given to the Purchaser by IBank, or to the Purchaser and IBank, specifying such failure and requesting that such failure be remedied; provided, however, that if the failure stated in such notice can be corrected, but not within such sixty (60) day period, IBank may consent to an extension of such time if corrective action is instituted by the Purchaser within such sixty (60) day period and diligently pursued until such failure is corrected; (3) The filing by the Purchaser of a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law of the United States of America, or if a court of competent jurisdiction shall approve a petition, filed with or without the consent of the Purchaser, seeking reorganization under the federal bankruptcy laws or any other applicable law of the United States of America, 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 Purchaser or of the whole or any substantial part of its property; (4) Any representation or other written statement made by the Purchaser contained in this Agreement, the application for financing or in any instrument furnished in compliance with or in reference thereto shall prove to have been incorrect in any material respect as negatively affecting the Purchaser’s performance hereunder; (5) An unexcused failure by the Purchaser to pay amounts due from the Enterprise Fund under any bond, note, installment sale agreement, capital lease, or other agreement or instrument to which it is a party relating to the borrowing of money, if such unpaid amount shall exceed fifty thousand dollars ($50,000); and (6) The occurrence of an event of default with respect to any Parity Debt or any Subordinate Debt which causes all principal of such Parity Debt or Subordinate Debt to become due and payable immediately. (b) If an Event of Default has occurred and is continuing, IBank may (i) declare the principal of the Purchase Price, together with the accrued interest on all unpaid installments thereof, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable, anything in this Agreement to the contrary notwithstanding, and (ii) exercise any other remedies available to IBank in law or at equity. Immediately upon becoming 44 aware of the occurrence of an Event of Default, IBank shall give notice of such Event of Default to the Purchaser by telephone, telecopier, facsimile or other telecommunication device, promptly confirmed in writing. This provision, however, is subject to the condition that if, at any time after the principal of the Purchase Price 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 Purchaser shall deposit with IBank a sum sufficient to pay all installments of principal of the Purchase Price due prior to such declaration and all accrued interest thereon, with interest on such overdue Installment Payments at the rate of the lesser of twelve percent (12%) per annum or the maximum rate permitted by law, and the reasonable expenses of IBank (including but not limited to attorney’s fees and costs), and any and all other defaults known to IBank (other than in the payment of principal of and interest on the Purchase Price due and payable solely by reason of such declaration), including the payment of Additional Payments due and owing, shall have been made good or cured to the satisfaction of IBank or provision deemed by IBank to be adequate shall have been made therefor, then, and in every such case, IBank may, by written notice to the Purchaser, rescind and annul such declaration and its consequences. However, 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 7.02 Remedies. Upon the occurrence of an Event of Default IBank shall have the following rights, in addition to its rights under Section 7.01: (a) By mandamus or other action or proceeding or suit at law or in equity to enforce its rights against the Purchaser or any member, officer, or employee thereof, and to compel the Purchaser or any such member, officer, or employee to perform and carry out its or his duties under 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 IBank; or (c) By suit in equity to require the Purchasers and its members, officers, and employees to account as the trustee of an express trust. SECTION 7.03 Application of Funds upon Default. All amounts received by IBank pursuant to any right given or action taken by IBank under provisions of this Agreement, or otherwise held by IBank upon the occurrence of an Event of Default, shall be applied by IBank in the following order: (a) First, to the payment of the costs and expenses of IBank, including reasonable compensation to their agents and attorneys, including IBank employees, as set forth in Section 2.06; and (b) Second, to the payment of the whole amount of Installment Payments then due and unpaid, with interest on overdue Installment Payments at the rate of the lesser of twelve percent (12%) per annum or the Maximum Rate; provided, however, that in the event such amounts shall 45 be insufficient to pay in full the amount of such Installment Payments, then such amounts shall be applied in the following order of priority: (1) First, to the payment of all installments of interest on the Purchase Price then due and unpaid, on a pro rata basis in the event that the available amounts are insufficient to pay all such interest in full; (2) Second, to the payment of principal of all installments of the Purchase Price then due and unpaid, other than principal having come due and payable solely by reason of acceleration pursuant to Section 7.01, on a pro rata basis in the event that the available amounts are insufficient to pay all such principal in full; (3) Third, to the payment of principal of the Purchase Price then due and unpaid and having come due and payable solely by reason of acceleration pursuant to Section 7.01, on a pro rata basis in the event that the available amounts are insufficient to pay all such principal in full; and (c) Third, to the payment to IBank of other Additional Payments as described in Section 2.06. SECTION 7.04 No Waiver. Nothing in this Article VII or in any other provision of this Agreement shall affect or impair the obligation of the Purchaser, which is absolute and unconditional, to pay from the Net System Revenues pledged hereunder, all payments due hereunder, or affect or impair the right of action, which is also absolute and unconditional, of IBank to institute suit to enforce such payment by virtue of the contract embodied in this Agreement. A waiver of any default by IBank shall not affect any subsequent default or impair any rights or remedies on the subsequent default. No delay or omission of IBank to exercise any right or power accruing upon any default shall impair any such right or power, or shall be construed to be a waiver of any such default, or an acquiescence therein, and every power and remedy conferred upon IBank by this Article VII may be enforced and exercised from time to time and as often as shall be deemed expedient by IBank. If a suit, action, or proceeding to enforce any right or exercise any remedy shall be abandoned or determined adversely to IBank, the Purchaser and IBank shall be restored to their former positions, rights, and remedies as if such suit, action, or proceeding had not been brought or taken. SECTION 7.05 Remedies Not Exclusive. No remedy herein conferred upon or reserved to IBank is intended to be exclusive of any other remedy. Every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder, or now or hereafter existing at law or in equity or by statute or otherwise, and may be exercised without exhausting and without regard to any other remedy conferred by law. 46 ARTICLE VIII MISCELLANEOUS SECTION 8.01 California Law; Venue. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State. Any action or proceeding arising out of this Agreement shall be filed and maintained in the Superior Court in and for the County of Sacramento, California, or in the United States District Court in and for the Eastern District of California, unless otherwise expressly agreed to by IBank in its sole and absolute discretion. SECTION 8.02 Assignment of IBank’s Rights. The Purchaser hereby agrees and acknowledges that IBank’s rights under this Agreement, collectively or severally, may in IBank’s sole and absolute discretion be assigned by IBank, or by the State, to any party for any purpose, including to the Trustee for the purpose of securing the payment of any bonds, notes, or other obligations issued by IBank and secured by this Agreement and the Installment Payments and Additional Payments, without the need for consent by the Purchaser; provided, with respect to any such assignment. IBank and the assignee shall be responsible for ensuring that such assignment complies with all applicable laws and regulations, including but not limited to California Government Code Sections 5950 through 5955, and the Purchaser shall have no responsibility or liability arising from any such non-compliance. Accordingly, the Purchaser agrees to make all payments due hereunder to the Trustee when so directed by IBank, notwithstanding any claim, defense, setoff or counterclaim whatsoever (whether arising from a breach hereof or otherwise) that the Purchaser may have from time to time against IBank. The Purchaser agrees to execute all documents, including notices of assignment and chattel mortgages or financing statements, which IBank or the Trustee may reasonably request in connection with any such assignment by IBank. SECTION 8.03 Third Party Beneficiaries. The Trustee is hereby expressly designated as a third party beneficiary hereunder for the purpose of enforcing any of the rights hereunder assigned to said Trustee and for the purpose of said Trustee enforcing its own rights. Nothing in this Agreement, expressed or implied, is intended to give to any person other than IBank, the Purchaser, and the Trustee, any right, remedy, or claim under or by reason of this Agreement. All covenants, stipulations, promises, or agreements contained in this Agreement by and on behalf of the Purchaser shall be for the sole and exclusive benefit of IBank, the Trustee, and their permitted assigns. SECTION 8.04 Successor Entities. Whenever in this Agreement either the Purchaser or IBank is named or referred to, such reference shall be deemed to include the permitted successors or assigns thereof, and all the covenants and agreements in this Agreement contained by or on behalf of the Purchaser or IBank shall bind and inure to the benefit of the respective permitted successors and assigns thereof, whether so expressed or not. The Trustee will be IBank’s initial assignee. 47 SECTION 8.05 Discharge of Agreement. Upon the Purchaser’s payment of the outstanding principal of, outstanding interest on, and prepayment premium (if any) on the Purchase Price, together with all Additional Payments, pursuant to this Agreement, then all obligations of IBank under this Agreement, all obligations of the Purchaser under this Agreement with respect to the Purchase Price, and, at the written election of the Purchaser, the pledge of and lien upon the Net System Revenues provided for in this Agreement, shall cease and terminate, excepting only the obligations of the Purchaser pursuant to the tax covenants herein, including but not limited to Section 5.07, indemnification obligations, including but not limited to Section 8.14, and the choice of law and venue provisions under Section 8.01. Notice of such election shall be filed with IBank. SECTION 8.06 Amendment. No term or provision of this Agreement may be waived or otherwise modified except by a written agreement signed by the Parties. The Parties acknowledge and agree that the previous sentence shall be interpreted, enforced, and adhered to strictly, notwithstanding any legal doctrine, rule, statute, or case law that may permit oral modification of this Agreement, or that may find under certain circumstances the portion of this Section 8.06 requiring all modifications to this Agreement be in writing is waived orally or by the Parties’ conduct. To the greatest extent permissible under the law, the Parties hereby agree to waive any legal doctrine, rule, statute, or case law that permits, or could be construed to permit, modification of this Agreement by means other than a writing signed by both Parties. SECTION 8.07 Waiver of Personal Liability. No member, officer, agent, or employee of the Purchaser shall be individually or personally liable for the payment of the principal of, premium, if any, or the interest under this Agreement; but nothing herein contained shall relieve any such member, officer, agent, or employee from the performance of any official duty provided by law. SECTION 8.08 Arm’s Length Transaction. The Purchaser acknowledges and agrees that IBank is acting solely as seller under this Agreement and not an advisor to the Purchaser, including that: (i) the transaction contemplated by this Agreement is an arm’s-length commercial transaction, (ii) in connection therewith and with the financing discussions, undertakings and procedures leading up to the consummation of such transaction, IBank is and has been acting solely as a principal and is not acting as the agent or fiduciary of or in any way advising the Purchaser, including, without limitation, a “Municipal Advisor” as such term is defined in Section 15B of the Securities and Exchange Act of 1934, as amended, and the related final rules, (iii) IBank has not provided any advice or assumed an advisory or fiduciary responsibility in favor of the Purchaser with respect to the financing contemplated hereby or the discussions, undertakings and procedures leading thereto (irrespective of whether IBank, or any party related to IBank, has provided other services, or advised, or is currently providing other services, or advising, the Purchaser on other matters) and IBank has no obligation to the Purchaser with respect to the financing contemplated hereby except the obligations expressly set forth in this Agreement, (iv) IBank has financial and other interests that 48 differ from those of the Purchaser , and (v) the Purchaser has consulted its own legal, financial and other advisors to the extent it has deemed appropriate. SECTION 8.09 Notices. All written notices to be given under this Agreement shall be given by first-class mail or personal delivery to the party entitled thereto at its address set forth below, or at such address as the party may provide to the other party in writing from time to time, except that notices from the Purchaser to IBank shall be given by registered mail, or by telecommunication confirmed in writing. Notice shall be effective forty-eight (48) hours after deposit in the United States mail, postage prepaid or, in the case of any notice to IBank, or in the case of personal delivery to any person, upon actual receipt at the address set forth below: If to IBank: California Infrastructure and Economic Development Bank Attn: Loan Servicing Manager, Agreement Number ISRF 20-135 P.O. Box 2830 Sacramento, CA 95812-2830 For overnight mail or personal delivery only: California Infrastructure and Economic Development Bank Attn: Loan Servicing Manager, Agreement Number ISRF 20-135 1325 J Street, Suite 1300 Sacramento, CA 95814 With a copy to the General Counsel of IBank at the same address. If to the Purchaser: City of San Luis Obispo 879 Morro Street San Luis Obispo, CA 93401 Attn.: Utilities Director Or to such other address as may be designated in writing by the Purchaser. SECTION 8.10 Contact Persons. (a) The Executive Director of IBank or such other person as designated in writing by IBank shall manage this Agreement for IBank and shall have authority to make determinations and findings with respect to each controversy arising under or in connection with the interpretation, performance, or payment for work performed under this Agreement. (b) The Purchaser’s contact person shall be its Deputy Director Utilities - Water, or such other person as may be designated in writing by the Purchaser (the “Purchaser Representative”). The Purchaser’s Deputy Director Utilities - Water shall be the Purchaser Representative for the administration of this Agreement and shall have full authority to act on behalf of the Purchaser and may designate in writing another person or persons authorized to 49 request disbursement of Facility Funds. All communications given to the Purchaser’s Deputy Director Utilities - Water shall be as binding as if given to the Purchaser. SECTION 8.11 Partial Invalidity. The illegality, unenforceability, or invalidity of any provision of this Agreement with regard to any Party or circumstance shall not render that provision illegal, unenforceable, or invalid with regard to any other Party or circumstance. All provisions of this Agreement, in all other respects, shall remain legal, enforceable, and valid to the fullest extent permitted by law. If any provision of this Agreement is held to be illegal, unenforceable, or invalid by a court of competent jurisdiction, then such provision shall be deemed severed from this Agreement and this Agreement shall be construed and enforced as if such illegal, unenforceable, or invalid provision had never been part hereof. SECTION 8.12 Binding Effect. This Agreement shall inure to the benefit of and shall be binding upon IBank and the Purchaser and their respective successors and assigns. SECTION 8.13 Entire Agreement. Except as expressly stated herein, this Agreement, together with the exhibits and attachments hereto, constitutes the entire agreement among the Parties. Except as expressly stated herein, there are no understandings, agreements, representations or warranties, express or implied, not specified herein or therein regarding this Agreement or the Facility financed hereunder. Any terms and conditions of any purchase order or other document submitted by the Purchaser in connection with this Agreement which are in addition to or inconsistent with the terms and conditions of this Agreement will not be binding on IBank and will not apply to this Agreement. SECTION 8.14 Indemnification. The Purchaser shall, to the fullest extent permitted by law, indemnify, protect, hold harmless, save and keep harmless IBank and its members, directors, officers, attorneys, advisors, employees, and agents (collectively, the “Indemnified Parties”) from and against any and all liability, obligations, losses, claims, demands, damages, actions, causes of action, liens, stop payment notices, or costs whatsoever, arising from the Purchaser’s operation of the System or the Purchaser’s performance hereunder regardless of the cause thereof (but excluding any and all liability, obligations, losses, claims, demands, damages, actions, causes of action, liens, stop payment notices, or costs to the extent caused by an Indemnified Party’s wrongful act), and reasonable expenses in connection therewith, including, without limitation, counsel fees and expenses as incurred, penalties and interest (collectively, a “Claim”), arising out of, related to or as the result of entering into this Agreement, and the acquisition, construction, operation, use, condition, or possession of the Facility and any portion thereof, including without limitation: (a) any accident in connection with the operation, use, condition, or possession of the Facility resulting in damage to property or injury to or death to any person including, without limitation, any claim alleging latent and other defects, whether or not discoverable by the Purchaser or IBank; 50 (b) patent, trademark or copyright infringement, or similar claims as a consequence of the operation, use, occupancy, or maintenance of the Facility; (c) strict liability in tort as a consequence of the operation, use, occupancy, or maintenance of the Facility or the Project; (d) any Claim based upon any environmental law or regulation relating to the Facility; (e) any Claim of any nature directly arising from or related to the Facility, which Claim is based upon the operation of the Facility from and after the Effective Date; (f) the existence, placement, delivery, storage, or release of hazardous materials on or from the Facility or contamination of property, arising therefrom; (g) either (a) the application of the Facility Funds, or other amounts treated as “gross proceeds” of the Proceeds Bonds or Secured Bonds in such manner that any portion of the Proceeds Bonds or Secured Bonds becomes an “arbitrage bond” within the meaning of Code sections 103(b)(2) and 148, with the result that interest on the Proceeds Bonds or Secured Bonds is or becomes subject to federal income taxation of the holder of the Proceeds Bonds or Secured Bonds; or (b) if as a result of any act, failure to act, or use of the proceeds of any portion of the Facility Funds or the Facility, or any misrepresentation or inaccuracy in any of the representations, warranties, or covenants contained in this Agreement or the enactment of any federal legislation or the promulgation of any federal rule or regulation after the date of this Agreement, all or any portion of the interest on any portion of the Proceeds Bonds or Secured Bonds becomes subject to federal income taxation; (h) the consummation or carrying out of any of the transactions contemplated by this Agreement or any related document; and (i) information provided by the Purchaser which is used in connection with the Proceeds Bonds or the Secured Bonds. The indemnification arising under this Section 8.14 shall continue in full force and effect notwithstanding the full payment of all obligations hereunder and shall survive the termination of this Agreement for any reason. Any party seeking indemnity hereunder shall promptly give notice to the Purchaser of any Claim or liability hereby indemnified against upon learning of any circumstances giving rise to any such Claim or liability. The Purchaser’s obligation to indemnify, defend, protect, hold harmless, save, and keep harmless the Indemnified Parties as provided in this Section 8.14 shall arise immediately upon any Claim covered under this Section 8.14 being asserted against an Indemnified Party, whether orally, in writing, or in any court or administrative action or proceeding. SECTION 8.15 Expectations. The undersigned is an authorized representative of the Purchaser acting for and on behalf of the Purchaser in executing this Agreement. To the best of the knowledge and belief of the undersigned, there are no other facts, estimates or circumstances that would materially change the expectations as set forth herein, and said expectations are reasonable. 51 SECTION 8.16 Section Headings. All section headings contained herein are for convenience of reference only and are not intended to define or limit the scope of any provision hereof. SECTION 8.17 Time of the Essence. Subject to the remainder of this Section 8.17, time is of the essence with respect to this Agreement and the performance of each obligation contained in this Agreement. Whenever the time for performance of any obligation under this Agreement, or if under this Agreement a Party must act by a particular time or date, or if an act is effective only if done by a particular time or date, and the last date for performance of such obligation or the doing or effectiveness of such act falls on a Saturday, Sunday, or legal holiday in the State, the time for performance of such obligation or the doing or effectiveness of such act shall be extended to the next day that is not a Saturday, Sunday, or a legal holiday in the State. The first day shall be excluded and the last day shall be included when computing the time in which an obligation is to be performed or an act is to be done under this Agreement. Unless otherwise provided herein all time periods shall end at 5:00 p.m. California time. SECTION 8.18 Form of Documents. The form and substance of all documents and instruments to be delivered to IBank under the terms of this Agreement, if any, shall be at all times subject to IBank’s approval, in its reasonable discretion. No document or instrument delivered to IBank, or to be delivered to IBank, or which is subject to the approval of IBank, shall be amended, modified, superseded, or terminated in any respect whatsoever without IBank’s prior written approval. SECTION 8.19 Waiver of Consequential Damages. To the fullest extent permitted by law, the Purchaser shall not assert, and hereby waives, any claim against IBank on any theory of liability for special, indirect, consequential, or punitive damages (as opposed to direct actual damages) arising from, or in connection with, this Agreement. SECTION 8.20 Nondiscrimination. (a) During the performance of this Agreement, the Purchaser shall ensure that any direct contractor and its subcontractors constructing the Facility shall not deny the contracts’ benefits to any person on the basis of race, color, religion, ancestry, national origin, ethnic group identification, marital status, gender, sex, sexual orientation, age, medical condition, physical handicap or disability, mental disability, political affiliation, or position in a labor dispute, nor shall they discriminate unlawfully against any employee or applicant for employment beca use of race, color, religion, national origin, ethnic group identification, ancestry, physical handicap or disability, mental disability, medical condition, marital status, age, gender, sex, sexual orientation, political affiliation, or position in a labor dispute. The Purchaser shall ensure that any direct contractor and its subcontractor shall ensure that the evaluation and treatment of employees and applicants for employment are free of such discrimination. 52 (b) The Purchaser shall ensure that any direct contractor and its subcontractors constructing the Facility shall comply with the applicable provisions of the Fair Employment and Housing Act (Government Code section 12900 et seq.), the regulations promulgated thereunder (Title 2, California Code of Regulations, section 7285.0 et seq.) the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (sections 11135-11139.5) and any regulations promulgated thereunder. (c) The Purchaser shall ensure that any direct contractor and its subcontractors constructing the Facility shall not knowingly give preferential treatment of any kind whatsoever in connection with any business transaction related to the construction or operation of the Facility to any of its affiliates or to any business enterprise in which the Purchaser has any financial interest, but in such business transactions shall deal at all times with such affiliates and enterprises on the same basis as though dealing with any other parties. (d) The Purchaser shall ensure that any direct contractor and its subcontractors constructing the Facility shall, with respect to the Facility, give written notice of their obligations under this section to labor organizations representing employees of the Purchaser and any contractor or subcontractor performing work on the Facility which have a collective bargaining or other contract with the Purchaser, such contractor or subcontractor. (e) The Purchaser shall ensure that any direct contractor and its subcontractors constructing the Facility shall include the provisions of this section in all subcontracts to perform work with respect to the Facility. SECTION 8.21 Execution in Counterparts. This Agreement shall become enforceable upon its execution and delivery. Signatures hereto may be provided in portable document format, with original signatures to follow. This Agreement may be executed and entered into in several counterparts, each of which shall be deemed an original, and all of which shall constitute but one and the same instrument. SECTION 8.22 Disclaimer of Warranties. IBank makes no warranty or representation, either express of implied, as to the value, design, condition, merchantability, or fitness for any particular purpose or fitness for the use contemplated by the Purchaser for the Facility, or any item thereof, or any other representation or warranty with respect to the Facility or any item thereof. SECTION 8.23 Usury Savings. Nothing herein shall be construed as entitling IBank to charge, receive, or collect interest in a sum greater than the maximum interest rate permitted to be charged by IBank to the Purchaser under applicable law (the “Maximum Rate”). The Parties intend that this Agreement shall comply with applicable law and that the rate or rates of interest charged hereunder shall not exceed the Maximum Rate. If the occurrence of any circumstance, event or contingency should cause such interest to exceed interest at the Maximum Rate, any such excess amount shall be applied to the reduction of the unpaid principal component of the Installment Payments. As used her ein, the term “applicable law” shall mean the law in effect as of the date hereof; provided, however, that 53 in the event there is a change in the law which results in a different permissible rate of interest, then this Agreement shall be governed by such new law as of its effective date. [Signatures follow. Remainder of page intentionally left blank.] 54 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be signed by their respective officers on the dates set forth below. CALIFORNIA INFRASTRUCTURE AND ECONOMIC DEVELOPMENT BANK, as Seller By: Scott Wu Executive Director Date_____________________________________ CITY OF SAN LUIS OBISPO, as Purchaser By_______________________________________ Title _____________________________________ Date_____________________________________ 12767-0012\2396091v16.doc A-1 EXHIBIT A APPROVING RESOLUTION OF THE PURCHASER [To be Attached to Executed Agreement] 12767-0012\2396091v16.doc B-1 EXHIBIT B DESCRIPTION OF FACILITY Generally, the Facility consists of upgrades to improve System reliability and energy and operational efficiency, and includes all necessary equipping, installation, design, engineering, construction, construction contingency, demolition, removal, resurfacing, restoration, landscaping, permitting, construction management, project administration, and general project development activities. More specifically, the Facility includes the following elements: • Improvements to the ozone disinfection processes at the Purchaser’s water treatment plant; • Installation of control systems at various transfer pump station upgrades to eliminate pressure spikes and modulate pump speeds to more effectively meet varying customer water demand; • Replacement of an existing pump station with a larger system to efficiently maintain the required system discharge pressure for the plant’s service water; • Replace and upgrade System control hardware and software to allow for monitoring and optimization of key components of the System; and • Other components necessary or desirable in connection with an infrastructure project of this type and that are consistent with the applicable requirements of the IBank Act and the Criteria. 12767-0012\2396091v16.doc C-1 EXHIBIT C CONDITIONS PRECEDENT TO DISBURSEMENT A. Conditions Precedent to Initial Disbursement No Facility Funds shall be disbursed pursuant to this Agreement until and unless the Purchaser has submitted the following to IBank: (1) Insurance Certificate of the Purchaser required by Section 5.22; B. Conditions Precedent to Disbursement for Construction Costs No Facility Funds shall be disbursed for construction costs for the Facility until and unless the Purchaser has submitted the following to IBank: (1) A copy of the Purchaser’s direct contractor(s)’ builder’s risk, commercial general liability, and worker’s compensation insurance policies satisfying the requirements of Section 5.22, unless specifically waived by IBank; (2) A copy of the Purchaser’s direct contractor’s payment and performance bonds satisfying the requirements set forth in Section 5.19 of this Agreement; and (3) A copy of the executed direct contract(s) for the Facility between the Purchaser and its direct contractor(s), including any exhibits, attachments, or change orders, if and when applicable. C. Conditions Precedent to Final Disbursement The final disbursement of Facility Funds shall not be made until the Purchaser has provided the following to IBank: (1) Recorded notice of completion for the Facility or other evidence of completion satisfactory to IBank; (2) Lien waivers for the Facility, or evidence of the passage of the applicable statutory time periods for filing mechanics and other similar liens; and (3) Certification by the Purchaser that the Facility has been completed according to its approved final plans and specifications, that the completed Facility is consistent with the definition of Facility in this Agreement and is acceptable to IBank. . 12767-0012\2396091v16.doc D-1 EXHIBIT D FORM OF OPINION OF LEGAL COUNSEL TO PURCHASER Attorney letterhead To be signed and dated as of the Effective Date City of San Luis Obispo 879 Morro Street San Luis Obispo, CA 93401 California Infrastructure and Economic Development Bank 1325 J St. Suite 1823 Sacramento, CA 95814 RE: Installment Sale Agreement, By and Among the City of San Luis Obispo and the California Infrastructure and Economic Development Bank (“IBank”), dated as of June 1, 2020. Ladies and Gentlemen: In my capacity as legal counsel to the City of San Luis Obispo (the “City”) and in connection with the above described financing agreement (the “Financing Agreement”), I have examined the laws pertaining to the City; the City Charter; copies of the Financing Agreement; Resolution No. ________(2020 Series) adopted by the City Council on June 16, 2020 (the “Resolution”); the City of San Luis Obispo 2012 Water Revenue Refunding Bonds and the City of San Luis Obispo, California Water Revenue Refunding Bonds, Series 2018, (collectively, the “Existing Bonds”) and their respective indentures and other documents governing and securing the Existing Bonds (collectively, the “Existing Bonds Documents”); the rate and fee structure for the City’s water system; and such other information, opinions, certificates and documents as I considered necessary to render this opinion. Based upon the foregoing, it is my opinion that: (i) the City is a municipal corporation and a public instrumentality of the State of California duly organized and validly existing pursuant to the laws of the State of California; (ii) the Resolution and other actions of the City approving and authorizing the execution and delivery of the Financing Agreement were duly adopted at a meeting of the governing body of the City which was called and held pursuant to law, in accordance with the Charter and with all public notice required by law, and at which a quorum was present and acting throughout, and such approval and authority is continuing and in full force and effect as of the date hereof; 12767-0012\2396091v16.doc D-2 (iii) the City has the full right and lawful authority to execute and deliver the Financing Agreement and the Financing Agreement has been duly authorized and executed on behalf of the City and the Financing Agreement is the legal, valid and binding obligations of the City enforceable in accordance with its terms and under the Charter, except as enforcement may be limited by as limited by applicable bankruptcy, insolvency, debt adjustment, receivership, fraudulent conveyance or transfer, moratorium, reorganization, arrangements or other similar laws affecting creditors’ rights, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State or other laws or equitable principles affecting the enforcement of creditors’ rights generally; (iv) to the best of my knowledge, after due inquiry, the execution and delivery of the Financing Agreement and compliance with the provisions thereof, under the circumstances contemplated thereby, does not and will not, in any material respect, conflict with or constitute on the part of the City a breach of or default under any agreement or other instrument to which the City is a party, including the Existing Bonds and the Existing Bonds Documents, or by which it is bound or any existing law, regulation, court order or consent decree to which the City is subject; (v) the obligations of the City under the Financing Agreement (a) constitutes permitted parity obligations under the Existing Bonds Documents, and (b) are on parity with the obligations of the City under the Existing Bonds and the Existing Bonds Documents; (vi) the rates, fees and charges the City imposes on its water system customers are legal, valid and comply with California Constitution article XIIID, the statues implementing it, and the published California Appellate Court and Supreme Court decisions interpreting it; (vii) to the best of my knowledge, after due inquiry, there is no action, suit, proceeding, inquiry or investigation before or by any court or public body pending and notice of which has been received by the City or threatened against or affecting the City: (1) challenging or questioning the transactions contemplated by the Financing Agreement or any other agreement, document or certificate related to such transactions; (2) challenging or questioning the creation, organization, existence or powers of the City; (3) seeking to enjoin or restrain the execution of the Financing Agreement or the construction of the Facility (as defined in the Financing Agreement) or the collection of any of the revenues used for making payments under the Financing Agreement; (4) in any way questioning or affecting any authority for the execution of the Financing Agreement or the validity or enforceability of the Financing Agreement; or (6) in any way questioning or affecting any other agreement or instrument relating to the Financing Agreement to which the City is a party. The opinions expressed herein are based on such examination of the law of the State as I deemed relevant for the purposes of this opinion letter. I have not considered the effect, if any, of the laws of any other jurisdiction upon matters covered by this opinion letter. I have assumed the genuineness of all documents and signatures presented to me. I have assumed and relied upon the accuracy of the factual matters represented, warranted or certified in the documents. I express no opinion as to the status of the Financing Agreement, the Installment Payments or any other payments thereunder, or any other documents executed and delivered in connection with the Financing Agreement under any federal securities laws or any state securities or “Blue Sky” law 12767-0012\2396091v16.doc D-3 or any federal, state or local tax law. Further, I express no opinion with respect to any indemnification, contribution, liquidated damages, penalty (including any remedy deemed to constitute a penalty), right of set-off, arbitration, judicial reference, choice of law, choice of forum, choice of venue, non-exclusivity of remedies, waiver or severability provisions contained in the Financing Agreement. Without limiting any of the foregoing, I express no opinion as to any matter other than as expressly set forth above. I am furnishing this opinion letter as City Attorney to the City. No attorney-client relationship has existed or exists between me and iBank by virtue of this opinion letter. This opinion letter is rendered solely in connection with the financing described herein, and may not be relied upon by you for any other purpose. I disclaim any obligation to update this opinion letter. This opinion letter and the opinions expressed herein shall not extend to, and may not be used, quoted, referred to, or relied upon by any other person, firm, corporation or other entity without my prior written consent. Sincerely, _________________________ [Insert attorney name] City Attorney, City of San Luis Obispo 12767-0012\2396091v16.doc E-1 EXHIBIT E AMORTIZATION SCHEDULE Payment Date Ending Principal Balance Principal Payment Interest Payment Total Principal & Interest Annual Fee Total Payment Total Payment Fiscal Year Ending June 30 19-Jun-2020 $14,300,000.00 1-Dec-2020 $160,875.00 $160,875.00 $160,875.00 1-Jun-2021 $13,740,196.06 $559,803.94 $178,750.00 $738,553.94 $42,900.00 $781,453.94 $781,453.94 1-Dec-2021 $171,752.45 $171,752.45 $171,752.45 1-Jun-2022 $13,166,397.02 $573,799.04 $171,752.45 $745,551.49 $41,220.59 $786,772.08 $958,524.53 1-Dec-2022 $164,579.96 $164,579.96 $164,579.96 1-Jun-2023 $12,578,253.00 $588,144.02 $164,579.96 $752,723.98 $39,499.19 $792,223.17 $956,803.13 1-Dec-2023 $157,228.16 $157,228.16 $157,228.16 1-Jun-2024 $11,975,405.39 $602,847.62 $157,228.16 $760,075.78 $37,734.76 $797,810.54 $955,038.70 1-Dec-2024 $149,692.57 $149,692.57 $149,692.57 1-Jun-2025 $11,357,486.58 $617,918.81 $149,692.57 $767,611.37 $35,926.22 $803,537.59 $953,230.16 1-Dec-2025 $141,968.58 $141,968.58 $141,968.58 1-Jun-2026 $10,724,119.81 $633,366.78 $141,968.58 $775,335.36 $34,072.46 $809,407.82 $951,376.40 1-Dec-2026 $134,051.50 $134,051.50 $134,051.50 1-Jun-2027 $10,074,918.86 $649,200.95 $134,051.50 $783,252.44 $32,172.36 $815,424.80 $949,476.30 1-Dec-2027 $125,936.49 $125,936.49 $125,936.49 1-Jun-2028 $9,409,487.89 $665,430.97 $125,936.49 $791,367.46 $30,224.76 $821,592.21 $947,528.70 1-Dec-2028 $117,618.60 $117,618.60 $117,618.60 1-Jun-2029 $8,727,421.15 $682,066.74 $117,618.60 $799,685.34 $28,228.46 $827,913.81 $945,532.40 1-Dec-2029 $109,092.76 $109,092.76 $109,092.76 1-Jun-2030 $8,028,302.73 $699,118.41 $109,092.76 $808,211.18 $26,182.26 $834,393.44 $943,486.20 1-Dec-2030 $100,353.78 $100,353.78 $100,353.78 1-Jun-2031 $7,311,706.36 $716,596.37 $100,353.78 $816,950.16 $24,084.91 $841,035.06 $941,388.85 1-Dec-2031 $91,396.33 $91,396.33 $91,396.33 1-Jun-2032 $6,577,195.08 $734,511.28 $91,396.33 $825,907.61 $21,935.12 $847,842.73 $939,239.06 1-Dec-2032 $82,214.94 $82,214.94 $82,214.94 1-Jun-2033 $5,824,321.02 $752,874.06 $82,214.94 $835,089.00 $19,731.59 $854,820.59 $937,035.53 1-Dec-2033 $72,804.01 $72,804.01 $72,804.01 1-Jun-2034 $5,052,625.10 $771,695.92 $72,804.01 $844,499.93 $17,472.96 $861,972.89 $934,776.90 1-Dec-2034 $63,157.81 $63,157.81 $63,157.81 1-Jun-2035 $4,261,636.79 $790,988.31 $63,157.81 $854,146.13 $15,157.88 $869,304.00 $932,461.82 1-Dec-2035 $53,270.46 $53,270.46 $53,270.46 1-Jun-2036 $3,450,873.77 $810,763.02 $53,270.46 $864,033.48 $12,784.91 $876,818.39 $930,088.85 1-Dec-2036 $43,135.92 $43,135.92 $43,135.92 1-Jun-2037 $2,619,841.67 $831,032.10 $43,135.92 $874,168.02 $10,352.62 $884,520.64 $927,656.56 1-Dec-2037 $32,748.02 $32,748.02 $32,748.02 1-Jun-2038 $1,768,033.77 $851,807.90 $32,748.02 $884,555.92 $7,859.53 $892,415.45 $925,163.47 1-Dec-2038 $22,100.42 $22,100.42 $22,100.42 1-Jun-2039 $894,930.67 $873,103.10 $22,100.42 $895,203.52 $5,304.10 $900,507.62 $922,608.04 1-Dec-2039 $11,186.63 $11,186.63 $11,186.63 1-Jun-2040 $0.00 $894,930.67 $11,186.63 $906,117.31 $2,684.79 $908,802.10 $919,988.73 Total $14,300,000.00 $4,028,203.82 $18,328,203.82 $485,529.46 $18,813,733.28 $18,813,733.28 12767-0012\2396091v16.doc F-1 EXHIBIT F FORM OF CERTIFICATE OF UTILITIES ENGINEER [letterhead] (To be signed and dated as of the Effective Date) California Infrastructure and Economic Development Bank 1325 J St. Suite 1823 Sacramento, CA 95814 RE: Installment Sale Agreement, By and Among the City of San Luis Obispo (the “City”) and the California Infrastructure and Economic Development Bank (“IBank”), dated as of June 1, 2020; Facility Useful Life. Ladies and Gentlemen: In my capacity as the Utilities Engineer I, Corissa Burnett do hereby certify as follows: 1. I am a Professional Civil Engineer, #89763; 2. Per industry standards for the equipment specified in the Preliminary Engineering Assessment and Investment Grade Audit the following useful life for upgrade equipment has been validated provided proper maintenance procedures are performed. 3. Professional industry standards and guidelines provide median year equipment life expectancy for equipment included in this upgrade. Whereas existing equipment’s lifetimes and product specifications provide basis for reference. 4. The City of San Luis Obispo is in the process of undertaking a project to improve the energy and operational efficiency of the City’s water treatment, distribution, and delivery sy stem. In particular, the City will upgrade the ozone disinfection facility at its water treatment plant, install variable control systems for various transfer pump station motors, upgrade the water treatment plant cooling system, and will replace control systems at the City’s water treatment plant and throughout its water system. In referencing industry standards, existing equipment performance lifetime and the experience industry professionals the useful life of improvements was determined. Therefore, in my opinion, as Professional Civil Engineer, the useful life of the aforementioned project will be at least 20 years. I, Corissa Burnett, hereby certify that each of the foregoing is true and correct. Dated: ______________, 20__ Sincerely, _________________________________________ Corissa Burnett Utilities Engineer I of the City of San Luis Obispo 12767-0012\2396091v16.doc G-1 EXHIBIT G FORM OF CERTIFICATE OF PURCHASER’S UTILITIES DIRECTOR Purchaser letterhead Signed Version to be Delivered to IBank as a Condition Precedent to IBank’s Obligations Hereunder California Infrastructure and Economic Development Bank 1325 J St. Suite 1300 Sacramento, CA 95814 RE: Installment Sale Agreement (“ISA”), By and Among the City of San Luis Obispo and the California Infrastructure and Economic Development Bank (“IBank”), dated as of June 1, 2020; Payment and Release of Lien of State Water Resources Control Board Agreement No. 02-818- 550-0. Ladies and Gentlemen: In my capacity as the authorized representative of the City of San Luis Obispo (the “City”), I John Moss, do hereby certify as follows: 1. On or about March 1, 2004 the City entered into Agreement No. 02-818-550-0 (the “Water Board Agreement”) with the State Water Resources Control Board (the “Water Board”), pursuant to which the City borrowed $8,883,231 from the Water Board (the “Water Board Loan”). Pursuant to the Water Board Agreement, the Water Board Loan was secured by, and was payable from, a lien on the System Revenues (as that term is defined in the ISA). 2. I signed the Water Board Agreement on behalf of the City, I am the authorized representative of the City for matters relating thereto, and I am authorized to make this certification on its behalf. 3. The City has paid in full the Water Board Loan. The Water Board Agreement has terminated and no longer imposes a lien on System Revenues or any other real or personal property of the City. I, John Moss, hereby certify that each of the foregoing is true and correct. Sincerely, __________________________________ John Moss Utilities Director, City of San Luis Obispo 12767-0012\2396091v16.doc H-1 EXHIBIT H SCHEDULE OF SOURCES AND USES OF FACILITY FUNDS SOURCES and USES Uses Sources IBank City Total Construction, Design, Entitlement and Related Activities $14,300,000 $14,300,000 IBank Origination Fee $143,000 $143,000 Total $14,300,000 $143,000 $14,443,000 12767-0012\2396091v16.doc J-1 EXHIBIT I Reserved 12767-0012\2396091v16.doc J-1 EXHIBIT J Reserved TABLE OF CONTENTS Page i ARTICLE I DEFINITIONS, RULES OF CONSTRUCTION, AND CONDITIONS PRECEDENT .................................................................. 2 SECTION 1.01 Definitions..................................................................................... 2 SECTION 1.02 Rules of Construction ................................................................... 9 ARTICLE II TERMS OF SALE .................................................................................. 10 SECTION 2.01 Purchase and Sale ....................................................................... 10 SECTION 2.02 Design, Acquisition, Construction, and Sale of the Facility ....... 10 SECTION 2.03 Payment of Purchase Price .......................................................... 11 SECTION 2.04 Payment on Business Days ......................................................... 12 SECTION 2.05 Disbursement of Facility Funds .................................................. 12 SECTION 2.06 Additional Payments ................................................................... 14 SECTION 2.07 Reserved ...................................................................................... 14 SECTION 2.08 Limitations on Prepayment and Facility Funds Reductions ....... 15 SECTION 2.09 Validity of Pledge and First Lien ................................................ 16 SECTION 2.10 Limited Obligation ...................................................................... 16 SECTION 2.11 Permitted Additional Parity Debt ................................................ 16 SECTION 2.12 The Purchaser’s Obligation for Other Facility Costs .................. 18 SECTION 2.13 Facility Description ..................................................................... 18 SECTION 2.14 Withholding of Facility Funds .................................................... 18 SECTION 2.15 Reserve Account ......................................................................... 18 SECTION 2.16 Permitted Subordinate Debt ........................................................ 19 ARTICLE III PLEDGE OF REVENUES ..................................................................... 19 SECTION 3.01 Pledge of Net System Revenues ................................................. 19 SECTION 3.02 System Revenues to be Deposited in the Enterprise Fund ......... 20 SECTION 3.03 Priority of Payments Made from the Enterprise Fund ................ 20 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER ......................................................................................... 21 SECTION 4.01 Organization ................................................................................ 21 SECTION 4.02 Agreement Valid and Binding .................................................... 21 SECTION 4.03 No Conflict in Execution of Agreement ..................................... 21 SECTION 4.04 No Litigation ............................................................................... 21 SECTION 4.05 No Breach or Default .................................................................. 21 SECTION 4.06 No Consent, Approval, or Permission Necessary ....................... 22 SECTION 4.07 Accuracy and Completeness of Information Submitted to IBank ........................................................................................... 22 SECTION 4.08 Financial Statements of the Purchaser ........................................ 22 SECTION 4.09 Licenses, Permits, and Approvals for Completion of Facility ........................................................................................ 22 SECTION 4.10 Authority to Operate the System ................................................. 23 SECTION 4.11 Valid Title ................................................................................... 23 SECTION 4.12 Other Liens.................................................................................. 23 SECTION 4.13 Purchaser’s Compliance with Prop 218 Law .............................. 23 SECTION 4.14 No Challenge to Purchaser’s Rates, Fees and Charges ............... 23 TABLE OF CONTENTS Page ii SECTION 4.15 Purchaser’s Compliance with Conditions Precedent to Parity Debt Set Forth in 2012 Bonds Instrument and 2018 Bonds Instrument ........................................................................ 24 SECTION 4.16 Continuing Validity of Representations and Warranties ............ 24 ARTICLE V AFFIRMATIVE COVENANTS OF THE PURCHASER ..................... 24 SECTION 5.01 Punctual Payment........................................................................ 24 SECTION 5.02 Payment of Claims ...................................................................... 24 SECTION 5.03 Books and Accounts ................................................................... 24 SECTION 5.04 Protection of IBank’s Security and Rights.................................. 26 SECTION 5.05 Payments of Taxes and Other Charges ....................................... 26 SECTION 5.06 Maintenance of System Revenues .............................................. 27 SECTION 5.07 Tax Covenants ............................................................................ 28 SECTION 5.08 Maintenance and Operation of System ....................................... 35 SECTION 5.09 Assumption of Obligations ......................................................... 35 SECTION 5.10 Damage, Destruction, Title Defect, and Condemnation ............. 35 SECTION 5.11 Entry into Replacement Agreement ............................................ 37 SECTION 5.12 Further Assurances...................................................................... 37 SECTION 5.13 Agreement to Complete Facility Delivery .................................. 37 SECTION 5.14 Collection of Rates, Fees and Charges ....................................... 38 SECTION 5.15 The Purchaser’s General Responsibility ..................................... 38 SECTION 5.16 The Purchaser’s Assurances and Commitments ......................... 38 SECTION 5.17 Facility Access ............................................................................ 39 SECTION 5.18 Operation and Maintenance of the Facility ................................. 39 SECTION 5.19 Performance and Payment Bonds ............................................... 39 SECTION 5.20 Continuing Disclosure ................................................................ 40 SECTION 5.21 Notice of Purchaser Event of Default ......................................... 40 SECTION 5.22 Maintenance of Insurance ........................................................... 40 SECTION 5.23 Facility Construction ................................................................... 41 SECTION 5.24 Compliance with Contracts ......................................................... 41 SECTION 5.25 Maintenance of Lien Parity ......................................................... 42 SECTION 5.26 Covenant to Comply with Prop 218 Law ................................... 42 ARTICLE VI NEGATIVE COVENANTS OF THE PURCHASER ............................ 42 SECTION 6.01 Limitation on Additional Obligations ......................................... 42 SECTION 6.02 Disposition of Property ............................................................... 42 ARTICLE VII EVENTS OF DEFAULT AND REMEDIES ......................................... 43 SECTION 7.01 Events of Default and Acceleration ............................................ 43 SECTION 7.02 Remedies ..................................................................................... 44 SECTION 7.03 Application of Funds upon Default............................................. 44 SECTION 7.04 No Waiver ................................................................................... 45 SECTION 7.05 Remedies Not Exclusive ............................................................. 45 ARTICLE VIII MISCELLANEOUS ............................................................................... 46 SECTION 8.01 California Law ............................................................................ 46 SECTION 8.02 Assignment of IBank’s Rights .................................................... 46 SECTION 8.03 Third Party Beneficiaries ............................................................ 46 SECTION 8.04 Successor Entities ....................................................................... 46 TABLE OF CONTENTS Page iii SECTION 8.05 Discharge of Agreement ............................................................. 47 SECTION 8.06 Amendment ................................................................................. 47 SECTION 8.07 Waiver of Personal Liability ....................................................... 47 SECTION 8.08 Arm’s Length Transaction .......................................................... 47 SECTION 8.09 Notices ........................................................................................ 48 SECTION 8.10 Contact Persons ........................................................................... 48 SECTION 8.11 Partial Invalidity.......................................................................... 49 SECTION 8.12 Binding Effect ............................................................................. 49 SECTION 8.13 Entire Agreement ........................................................................ 49 SECTION 8.14 Indemnification ........................................................................... 49 SECTION 8.15 Expectations ................................................................................ 50 SECTION 8.16 Section Headings ........................................................................ 51 SECTION 8.17 Time of the Essence .................................................................... 51 SECTION 8.18 Form of Documents .................................................................... 51 SECTION 8.19 Waiver of Consequential Damages ............................................. 51 SECTION 8.20 Nondiscrimination....................................................................... 51 SECTION 8.21 Execution in Counterparts ........................................................... 52 SECTION 8.22 Disclaimer of Warranties ............................................................ 52 SECTION 8.23 Usury Savings ............................................................................. 52 EXHIBIT A – APPROVING RESOLUTION OF THE PURCHASER EXHIBIT B – DESCRIPTION OF FACILITY EXHIBIT C – CONDITIONS PRECEDENT TO DISBURSEMENT EXHIBIT D – FORM OF OPINION OF LEGAL COUNSEL TO PURCHASER EXHIBIT E – AMORTIZATION SCHEDULE EXHIBIT F – FORM OF CERTIFICATE OF UTILITIES ENGINEER EXHIBIT G – FORM OF CERTIFICATE OF PURCHASER’S UTILITIES DIRECTOR