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HomeMy WebLinkAboutAgenda - 03-02-2006-8bCCSHLF draft of February 21, 2006 ORANGE COUNTY PUBLIC FACILITIES COMPANY and ORANGE COUNTY, NORTH CAROLINA INSTALLMENT FINANCING CONTRACT Dated as of April 1, 2006 Tlus instnunent has been preaudited in the manner required by The Local Go~Tenunent Budget and Fiscal Control Act. Kenneth T. Cha~Tious Finance Officer Orange County, North Carolina. ~3s61~3 INSTALLMENT FINANCING CONTRACT THIS INSTALLMENT FINANCING CONTRACT (the "contract") is dated as of April 1, 2006, and is between ORANGE COUNTY, NORTH CAROLINA, a political subdivision of the State of North Carolina (the "County"}, and ORANGE COUNTY PUBLIC FACILITIES COMPANY, a North Carolina nonprofit corporation (the "Company"). RECITALS: The County desires to obtain funds to enable the County to acquire, construct and improve certain school facilities and to provide for certain other public improvements. The Company has agreed to advance funds to the County for such purpose. The County is obtaining funds for such advance by providing for the issuance of the 2006A Certificates (as defined below). This Contract provides for the Company's obligation to advance the funds, and the County's obligation to repay the funds ~Tith interest. In accordance with the County's authority under Section 160A-20 of the North Carolina General Statutes, the County will secure its obligations under this Contract by a security interest in the Pledged Facility and the Pledged Site (each as defined in Exhibit A). Unless tlae context clearly requires otherwise, capitalized terms used in t1~is Contract and not otherwise defined will have. the meanings setforth in Exhibit A. NOVV, THEREFORE, for and in consideration of the mutual promises and covenants contained in this Contract, the parties agree as follows: ARTICLE I ADVANCE The Company ad~Tances [$24,000,000] (the "Amount Advanced") to the County, and the County accepts the Amount Advanced. The Company is advancing the Amount Advanced by providing for the transfer and deposit of such Advance as provided in the Trust Agreement. The County acknowledges that the total of such deposits is being (a) increased by the 93361v2 2 amount of accrued interest on the Amount Advanced from April 1, 2006, to the date of the deposit, (b) reduced by a discount for the underwriting of the 2006A Certificates, {c) [original issue discount/premium] and (d) further reduced by the amount of a premium for a financial guaranty insurance policy paid directly by the Lulderwriters of the 2006A Certificates; the final total of the deposits to be made by the Company pursuant. to this Article is $ The County will use the Amount Advanced to pay Project Costs as provided in this Contract and in the Trust Agreement. ARTICLE II CONTRACT PAYMENTS 2.1. Installment Payments. (a) The County ujill repay the Amount Advanced by making Installment Payments directly to the Trustee in lawful money of the Unted States, in immediately available funds to such account in the United States as the Trustee may designate from time to time, at the times and in the amounts set forth in Exhibit B, except as otherwise provided in this Contract. (b) There will be credited against the amount of Installment Payments otherwise payable under this Contract amounts on deposit (i) in the Interest Account or the Principal Account of the Payment Fund and available to make corresponding payments of principal or interest with respect to 2006A Certificates or (ii) in any special trust fund established pursuant to [Section 7.01] of the Trust Agreement. The Trustee ~~Till determine the amounts of such credits and will notify the County thereof not less than 15 days prior to the applicable payment date. 2.2. Additional Payments. The Count}r will pay all Additional Payments on a timely basis directl~~~ to the person or entity to which such Additional Payments are o~~red in la~~~ful money of the Unted States. If the County fails to pay any Additional Payment uThen due, the Company may (but will be under no obligation to) pay such Additional Payment. The County agrees to reimburse the Company for any such Additional Payment, together with interest thereon at the annual rate of 5.00%. 2.3. Prepayments. The County at its option may prepay principal components of Installment Payments as and when corresponding principal payments of the 2006A Certificates may be prepaid pursuant to [Section 3.01 {a)] of the Trust Agreement. 93361v2 3 In addition, the County may prepay principal components of Installment Payments pursuant to Sections 6.3(a) and 6.3(b) by directing the Trustee to apply amounts in the Net Proceeds Fund to prepayment of principal with respect to the 2006A Certificates pursuant to [Sections 3.01 (c) and 4.06] of the Trust Agreement. Upon any such prepayment, the Trustee will recalculate the schedule of Installment Payments to reflect the prepayment, and will then deliver a substitute Exhibit B to the County reflecting the recalculated payment schedule. 2.4. No Abatement. There will be no abatement or reduction of the Installment Payments or Additional Payments by the County for any reason, including, but not limited to, any defense, recoupment, setoff, counterclaim, or any claim arising out of or related to the Project Sites or of the Financed Facilities. The County assumes and will bear the entire risk of completion, loss and damage to the Project Sites and the Financed Facilities from any cause whatsoezTer, it being the parties' intention that the Installment Payments will be made in all events unless the County's obligation to make Installment Payments is terminated as provided in this Contract. 2.5. Appropriations. {a) The County will cause the Budget Officer to include in the initial proposal for each of the County's annual budgets the amount of all Installment Payments and estimated Additional Payments coming due during the Fiscal Year to which such budget applies. Notwithstanding that the initial proposed budget includes an appropriation far Contract Payments, the County Board may determine not to include such an appropriation in the final County budget for such Fiscal Year. (b) If within 15 days after the beginning of any Fiscal Year the County has not appropriated an amount equal to the Installment Payments and estimated Additional Payments coming due during such Fiscal Year, then the County must send a notice to such effect to the Trustee and to the LGC, to the attention of its Secretary, at 4505 Fair Meadov~T Lane, Suite 102, Raleigh, North Carolina 27607- 6449. ARTICLE III CONSTRUCTION 93361v2 4 3.1. Construction; Changes. (a) The County will comply with the provisions of the North Carolina General Statutes and enter into the Construction Contracts, or in the altenlative the County may provide for the School Board to enter into some or all of the Construction Contracts. The County ti~Till J cause the construction of the Pledged Facility to be carried on continuously in accordance with the Plans and Specifications and all applicable State and local laws and regulations. The County will provide for the Pledged Facility to be constructed on the Pledged Site and will insure (i} that no portion of the Pledged Facility encroaches upon nor overhangs any easement or right-of-~~ray and (ii} that the Pledged Facility, u~•hen erected, uTill be wholly uJithin any applicable building restriction lines, however established, and will not violate applicable use or other restrictions contained in prior conveyances or applicable protective covenants or restrictions. The County will provide for all utility lines, septic systems and streets ser<Ting the Pledged Site to be completed in accordance with health department standards and other applicable regulations of any governmental agency having jurisdiction. (b) The County may approve changes to the Plans and Specifications and the Construction Contracts in its discretion except that the County may not, without the Company's consent, approve any changes which (i} increase total estimated Project Costs above the amounts previously identified and designated therefor, or {ii) result in the use of the Pledged Facility for purposes substantially different from those initially proposed. 3.2. Right of Entr`~ and Inspection. The Company and its representatives and agents will have the right to enter upon the Pledged Site and inspect the Pledged Facility from time to time during construction and at any other time during the Contract term, and the County will cause any contractor or subcontractor to cooperate with any such parties and agents during such inspections. No right of inspection or approval granted in tlus Section ~~~ill be deemed to impose upon any party any duty or obligation whatsoever to undertake any inspection or to make any approval. No inspection made or approval given by any party v~Till be deemed to impose upon any party any duty or obligation whatsoever to identify or correct any defects in the Pledged Facility or to notify an}~~ person with respect thereto, and no liabilityT will be imposed upon any party and no warranties (either express or implied) are made by as to the quality or fitness of any improvement, any such inspection and approval being made solely for the Compan}r's benefit. 93361v2 5 3.3. Completion of Construction. When the construction of the Financed Facilities has been substantially completed to the County's satisfaction, the County will promptly prepare and deliver to the Company and the Trustee (a) a certificate to that effect together with (b) a certificate from an Appropriate Consultant estimating the amount of Project Costs remaining to be paid. The Trustee ti~Jill hold in the Project Fund any amounts needed to pay remaining Project Costs, as shoujn on the Consultant's Certificate. The Trustee will disburse any other funds in the Project Fund not required to be so retained, pursuant to [Section 4.03] of the Trust Agreement. 3.4. Contractors' Performance and Payment Bonds. The County will provide for each contractor entering into a Construction Contract to furnish a performance bond and a separate labor and material payment bond as required by Article 3, Chapter 44A of the North Carolina General Statutes. The County will provide copies of such bonds to the Company. Each such bond will include the Company as a dual obligee. Upon any material default by a contractor under any Construction Contract, or upon any material breach of warranty with respect to any materials, workmanship or performance, the County will promptly proceed, either separately or in conjunction with others, to pursue diligently its remedies against such contractor or against the surety of any bond secL~ring the performance of such Construction Contract. 3.5. Contractors' General Fublic Liability and Property Damage Insurance. The County will provide for each contractor entering into a Constriction Contract to procL~re and maintain standard form (a} comprehensive general public liability and property damage insurance, at such contractor's ov~Tn cost and expense, during the duration of such contractor's Construction Contract, in the amount of at least $1,000;000, and (b) comprehensive automobile liability insurance on owned, hired and nono~vned velucles for not less than $1,000,000. Such policies v~~•ill include the Company and the Tristee as additional named insureds or loss payees. Tl1e County will provide to the Trustee a certificate of insurance in a form acceptable to the Trustee, uTith respect to each contractor and subcontractor. Such insurance will provide protection from all claims for bodily injury, including death, property damage and contractual liability, productslcompleted operations, broad form property damage and XCU (explosive, collapse and underground damage), where applicable. 93361v2 6 3.6. Contractors' Builder's Risk Completed Value Insurance. The County will provide for each contractor entering into a Construction Contract to purchase and maintain property insurance (builder's risk) upon all construction, acquisition, installation and equipping of the Pledged Facility (excluding contractor's tools and equipment} at the Pledged Site at the full insurable value thereof. This insurance will include the Company and the Trustee as additional insureds or loss payees, and will insure against "all risk" subject to standard policy conditions and exclusions. The contractor will purchase and maintain similar property insurance for portions of the work stored off the Pledged Site or in transit when such portions of the uTork are to be included in an application for payment. The contractor ~~rill be responsible for the pa~rment of any deductible amounts associated with this insurance. 3.7. Contractors' Workers' Compensation Insurance. The County will provide for each contractor entering into a Construction Contract to procure and maintain w=orkers' compensation insurance during the term of such Constntction Contract, covering the contractor's employees working thereunder. A certificate of insurance evidencing such coverage, in farm acceptable to the County and the Company, will be provided to the County and the Company uTith respect to each contractor entering into a Construction Contract. Each Construction Contract must also provide that each subcontractor of any contractor u~ho is a party to such Constntction Contract shall be required to furnish similar v~Torkers' compensation insurance. 3.8. Cooperation. The Company and the County will cooperate fully with each other in filing any claim or proof of lass with respect to any bond or insurance policy described in this Contract. In no event will the Company or the County voluntarily settle, or consent to the settlement of, any proceeding arising out of any claim with respect to the Financed Facilities without the other's written consent. ARTICLE N COUNTY'S RESPONSIBILITIES 4.1. Care and Use. The County will use the Pledged Site and the Pledged Facility in a careful and proper manner, and will keep the Pledged Site and the Pledged Facility in good condition, repair, appearance and working order for the purposes intended. 93361v2 '] 4.2. Utilities. The County will pay all charges for utility services furnished to or used on or in connection uTith the Pledged Site and the Pledged Facility. 4.3. Risk of Lass. The County will bear all risk of loss to and condemnation of the Financed Facilities and the Project Sites. Upon loss, damage or condemnation of the Mortgaged Property, the County will proceed as provided in Article VI. 4.4. Company's Performance of County's Responsibilities. Any performance required of the County or any payments required to be made by the County for the insurance, maintenance or preservation of the Mortgaged Property may, if not timely performed or paid, be performed or paid by the Company. The County will then reimburse the Compan}r far any such payments and for any associated costs and expenses, legal or otherwise, together with interest thereon at the annual rate of 8.00°l0. 4.5. Compliance with Requirements. The County will promptly and faithfully comply ujith all requirements of govenunental authorities relating to the use or condition of the Mortgaged Property, the violation of ~wluch would adversely affect the use, value or condition of the Mortgaged Property, whether or not such requirement will necessitate structural changes or improvements or interfere with the use or enjoyment of the Mortgaged Property {or be diligently and in good faith contesting such requirements}. Unless required by applicable law or unless the Company has otherwise agreed in writing, the County will not use the Mortgaged Property for any purposes other than that for which the same were intended as of the date of this Contract. The County will in no event use the Mortgaged Property or any part thereof nor allow the same to be used for any unlav~~ful purpose or in violation of any certificate of occupancy or other permit or certificate, or any lauT, ordinance or regulation. 4.6. Use and Operation; Leasing. {a) The acquisition and construction of the Pledged Facility uTill be useful to the County in carrying out its required function of providing school facilities. The County and the School Board have an immediate need for the Pledged Facility, and the Count~J expects the School Board to make immediate use of the Pledged Facility upon their completion. The County does not expect such need or use to diminish in any material respect during the Contract term. {b) The County will use and operate, or will cause the School Board to use and operate, the Pledged Facility for public educational purposes, and for no 93361v2 g other purpose unless required by law. The County will be solely responsible for the operation of the Pledged Facilit}j, and will not contract ujith any other person or entity for such operation; provided, however, that the County may lease the Pledged Facility to the School Board, or may otherwise provide for the School Board's use of the Pledged Facility, but no such lease or other arrangement uTill have any affect on the County's obligations under this Agreement. 4.7. Modification of Pledged Facility; Installation of Equipment and Machinery. The County has the right to remodel the Pledged Facility or make substitutions, additions, modifications and improvements to the Pledged Facility, at its awn cost and expense; provided, however, that such substitutions, additions, modifications and improvements swill not in any way damage the Pledged Facility or result in the use of the Pledged Facility for purposes substantially different from those initially proposed; and provided further that the Pledged Facility, as improved or altered, upon completion of such substitutions, additions, modifications and improvements, will be of a value not less than the value of the Pledged Facility immediately prior to such making of substitutions, additions, modifications and improvements. The County may also, from time to time in its sole discretion and at its own expense, install machinery, equipment and other tangible property in or on the Pledged Facility. All such property will remain the County's sole property in v~Thich neither the Company nor any assignee of the Company swill have any interest; provided, houTever, that any such property which becomes permanently affixed to the Pledged Facility will be subject to this Contract and the lien and security interest arising under the Deed of Trust if the Company will reasonably determine that the Pledged Facility would be damaged or impaired by the removal of such machinery, equipment or other tangible property. 4.8. Taxes and Other Go~-ernmental Charges. If the Mortgaged Property or any portion thereof is, for any reason, deemed subject to taxation, assessments or charges lawfully made by any governmental body, the County will, during the Contract term, pay the amount of all such taxes, assessments and goverrunental charges as Additional Payments. With respect to special assessments or other governmental charges which may be lawfully paid in installments over a period of years, the County swill be obligated to provide for Additional Payments only for such installments as are required to be paid during the Contract term. The County must not allow any liens for taxes, assessments or governmental charges with respect to the Mortgaged Property or any portion thereof to become delinquent (including, without limitation, any taxes levied upon the Mortgaged Property or any portion thereof which, if not paid, will become a charge on any 93361d' ~) interest in the Mortgaged Property, including the Company's interest, or the rentals and revenues derived therefrom or hereunder}. The County may, at its otiv11 expense and in its o~vn name, in good faith contest any such taxes, assessments and utility and other charges and, in the event of any such contest, may permit such charges so contested to remain Ltnpaid during the period of such contest and any appeal therefrom unless the Company notifies the County that, in the opinion of Independent Counsel, by nonpayment of any such items the security afforded pursuant to this Contract or the Deed of Trust ~~Till be materially endangered or the Mortgaged Property or any portion thereof will be subject to loss or forfeitL~re, u1 ~~rhich event such charges will be paid forthwith (but such payment will not in itself constitute a v~raiver of the right to continue to contest such charges). 4.9. Praperty~ Damage Insurance. {a} From and after substantial completion of the Pledged Facility, the County will, at its own expense, acquire, carry and maintain broad-form extended coverage property damage insurance with respect to the Pledged Facility in an amount equal to its estimated replacement cost. Such property damage insurance must include the Company and the Trustee as loss payees. The County will provide evidence of such coverage to the Company and the Trustee promptly upon such substantial completion. (b) (i) All insurance required by this Section will be maintained with generally recognized responsible insurers and may carry reasonable deductible or risk-retention amounts. All suc11 policies will be deposited with the Trustee, pro~Tided that in lieu of such policies there may be deposited with the Trustee a certificate or certificates of the respective insurers attesting the fact that the insurance required by this Section is in full force and effect. Prior to the expiration of any such policy, the County will furnish the Trustee evidence satisfactory to the Trustee that the polic~j has been renewed or replaced or is no longer required by this Contract. {ii} In the alternative, the County may maintain the insurance required by subsection (a) above (A) by one or more blanket or umbrella insurance policies or (B) by means of an adequate self-insurance fund or risk-retention program, or by participation in a group risk pool or similar program. {iii) If the County obtains blanket or umbrella coverage, the County will deposit with the Trustee a certificate or certificates of the respective insurers evidencing such coverage and, with respect to property insurance, stating the amount of coverage provided with respect to the Pledged Facility (or any covered J3 861v2 10 portion thereof}. If the County provides for any such alternative risk management programs, the County's risk manager or an independent insurance consultant will revie~~r such programs annually for sufficiency. The Trustee may rely on any such certificate as to the sufficiency of any such alternative program. (c) No County agent or employee will have the power to adjust or settle any property damage loss greater than $1,000,000 with respect to the Pledged Facility, whether or not cozTered by insurance, without the Trustee's prior written consent. (d) The Trustee will not be responsible for the sufficiency or adequacy of any required insurance and will be fully protected in accepting payment on account of such insurance or any adjustment, compromise or settlement of any loss agreed to by the Trustee. (e) The County will deliver to the Trustee annually by each Tune 30 a certificate stating that the risk coverages required by this Contract are in effect. ARTICLE V TITLE; LIENS 5.1. Title. Title to the Pledged Site and the Pledged Facility and any and all additions, repairs, replacements or modifications thereto will at all times be in the County, subject to the lien of the Deed of Trust and to the Permitted Encumbrances. Simultaneously with the execution and delivery of this Contract, the County will deliver to the Company the Deed of Trust in fonll mutually satisfactory to the Company and the County. 5.2. No Encumbrance, Mortgage or Pledge of Mortgaged Property. (a) The County will not permit any mechanc's or other lien to be perfected or remain against the Mortgaged Property or any portion thereof; provided that subsequent to the Completion Date, if the County first notifies the Trustee of the County's intention to do so, the County may in good faith contest any mechanic's or other lien filed or perfected against the Mortgaged Property or anyT portion thereof. In such e~Tent the County may permit the items so contested to remain undischarged and unsatisfied during the period of such contest and any appeal therefrom unless the Trustee notifies the County that, in the opinion of Independent Counsel, by nonpayment of any such items the Company's title to the Mortgaged Property or any portion thereof will be materially endangered, or will be subject to loss or forfeiture, in which event the County will promptlSj pay and 93 361v2 11 cause to be satisfied and discharged all such unpaid items (but such payment will not in itself constitute a waiver of the right to continue to contest such items). The Company will cooperate fully with the County in any such contest, upon the request and at the expense of the County. (b) Except as provided in subsection (a) above, the County will not directly or indirectly create, incur, assume or suffer to exist any mortgage, pledge, lien, charge, encumbrance or claim on or with respect to the Mortgaged Property, except Permitted Encumbrances, or encumbrances incurred in connection with the authorization, execution and delivery of Additional Certificates. The County ujill promptly, at its own expense, take such action as may be appropriate to discharge any such mortgage, pledge, lien, charge, encumbrance or claim not excepted above which it will have created, incurred or suffered to exist. (c) The County will reimburse the Trustee for any expense incurred by it in order to discharge or remove any such mortgage, pledge, lien, security interest, encumbrance or claim, together with interest thereon at the annual rate of 8.00°l0. ARTICLE VI DAMAGE, DESTRUCTION AND CONDEMNATION; USE OF NET PROCEEDS 6.1. Damage, Destruction or Condemnation. The County will promptly notify the Compan~T, the Trustee and the InsL~rer if (a) the Mortgaged Property or any portion thereof is destroyed or damaged by fire or other casualty, (b) any governmental authority takes, or notifies the County of any intent to take, title to, or the temporary or permanent use of the Mortgaged Property or any portion thereof, or the estate of the County or the Company in the Pledged Facilities, the Pledged Sites or any portion thereof, under the pou~•er of eminent domain, (c) a material defect in the construction of the Pledged Facilities becomes apparent, or (d) title to or the use of all or any portion of the Mortgaged Property is lost by reason of a defect in title. Each such notice must describe generally the nature and extent of such damage, destruction or taking. The County must provide any additional information concerning such matter as the Company may reasonably request. The County v~Till file its claims under insurance coverages and claims for awards or payments in the nature of condemnation awards resulting from any such damage, destruction or taking. The County will prosecute all such claims for such 93361v2 1 awards or payments in good faith and with due diligence. Any Net Proceeds received by the County as a result of such claims uTill be used as provided in Sections 6.2 and 6.3. 6.2. Security Interest in Net Proceeds; Deposit and Disbursement. (a) The County grants a security interest in the Net Proceeds to the Trustee to secure the County's obligations under this Contract, subject to the further pro~Tisions of this Section. This Contract is intended as and constitutes a security agreement u~•ith respect to such security interest. All Net Proceeds uTill remain subject to the security interest provided for in this Section 6.2(a) until expended in compliance v~Tith the requirements of this Contract. (b) If the amount of Net Proceeds recei~Ted by the County from any single event or any single series of related events is less than $1,000,000, then the County will have no obligation to account to the Company or any other person or entity with respect to the use of such Net Proceeds. The County, hov~Tever, acknov~Tledges that its use of such funds may be constrained by the requirements of the Code and the County's covenant in Section 7.1(k). (c} If the amount of Net Proceeds received by the County from any single event or any single series of related events is at least $1,000,000, the County will cause such Net Proceeds to be paid to the Tnistee (i) for deposit in the Project Fund, if received before the Completion Date, or (ii} if received thereafter, far deposit in the Net Proceeds Fund. The County will thereafter provide far the application of all Net Proceeds so deposited in accordance ~~-ith Section 6.3. 6.3. Use of Net Proceeds. The County may elect to proceed under either subsection {a), (b) or (c} with respect to Net Proceeds deposited with the Trustee; provided, however, that subsections (a) and (b) uTill be available to the County only if no E~Tent of Default is continuing. The County will notify the Company, the Trustee and the Insurer of its election witlun 60 days after the date of the deposit. (a) If the amount of Net Proceeds is equal to at least 75% of the outstanding principal of the Certificates, then the County may provide additional funds from any legal source and use such Net Proceeds and additional County funds to prepay the Certificates in full pursuant to [Section 3.01(c)] of the Trust Agreement; (b) If as a result of event (or series of events) giving rise to the Net Proceeds (i) the County has lost beneficial use of at least 51 % of the Pledged 93361v2 13 Facility of which it had beneficial use prior to such event or (ii) the damaged portion of the Pledged Facility cannot be restored to its prior condition within six months of the event (or series of events} with respect to which the Net Proceeds ha~Te been collected, then the County may use the Net Proceeds (and only the Net Proceeds) to prepay the Certificates in part pursuant to [Section 3.01(c}] of the Trust Agreement; or (c) Otherwise the County will use the Net Proceeds and other available funds for the completion or for repair and restoration of the Mortgaged Property. The County will not be entitled to any reimbursement of any funds paid pursuant to this subsection, nor will the County be entitled to any postponement or diminution of its obligation to make Contract Payments as a result of any such contribution. Determinations as to the extent of loss described in {b) above will be made by an Appropriate Consultant and will be in form and substance reasonably acceptable to the Trustee. If the County decides to proceed pursuant to subsection (c} above, the Trustee will disburse Net Proceeds for the payment of such costs upon receipt of requisitions in substantially the form of [Exhibit C] to the Trust Agreement. The Trustee is not required to honor any such requisition if an Event of Default is continuing, but the Trustee will honor requisitions as may be directed by the Insurer. Any repair or replacement paid for in ~~hole or in part out of such Net Proceeds will be the County's property and urill be part of the Mortgaged Property. ARTICLE VII WARRANTIES, REPRESENTATIONS AND COVENANTS 7.1. By the County. The County warrants, represents and covenants {all such warranties, representations and covenants being continuing) as follows: (a) The County is a duly organized and validly existing political subdivision of the State. The County has all pov~Ters necessary to enter into the transactions contemplated by this Contract and the Deed of Trust and to carry out. its obligations under tlus Contract. (b) The County u~•ill take no action that would adversely affect its existence as a political subdivision in good standing in the State, cause the County to be consolidated with or merge into another political subdivision of the State or permit one or more other political subdivisions of the State to consolidate with or 93861v2 j 4 merge into it, unless the political subdivision of the State created thereby expressly assumes in writing the County's obligations under this Contract. (c) The County has duly and ~Talidly authorized, executed and delivered this Contract and the Deed of Trust. Assuming due authorization, execution and delivery thereof by the other parties thereto, this Contract and the Deed of Trust constitute valid, legal and binding obligations of the County, enforceable (in the case of the Deed of Trust, by the Deed of Trust Trustee, the Company and the Trustee, as the Company's assignee} in accordance ~~Tith their respective terms, subject to bankruptcy, insol~~rency and other similar lours affecting the enforcement of creditors' rights generally and such principals of equity as a court having jurisdiction may impose. (d) No further approval or consent is required from any governmental authority with respect to the County's entering into or performing under this Contract or the Deed of Trust. (e) There is no action, suit or proceeding at law or in equity before or by any court, public board or body pending or, to the best of the County's knou~•ledge, threatened, against or affecting the County (or any official thereof in an official capacity) challenging the validity or enforceability of this Contract, the Deed of Trust or any other documents relating hereto. The County's performance of its obligations under this Contract and the Deed of Trust, and compliance with the provisions hereof and thereof, under the circumstances contemplated hereby or thereby, does not and ~vill not in any material respect constitute on the County's part a breach of or default under, or result in the creation of a lien or other encumbrance on any County property (except as contemplated herein or therein), pursuant to any agreement or other instrument to which the County is a party, or any existing law, regulation, court order or consent decree to v~Thich the County is subject. (f} No County representation, covenant or warranty in this Contract is false or misleading in any material respect. (g) The County is vested uTith fee simple title to the Pledged Site. There are no liens or encumbrances on the Pledged Facility or the Pledged Site other than the Existing Encumbrances, as defined in the Deed of Trust. (h) The resolutions relating to the County's performance of this Contract, the Deed of Trust and the transactions contemplated hereby and thereby have been 93 361v2 15 duly adopted, are in full force and effect, and have not been in any respect modified, revoked or rescinded. (i) The County reasonably believes funds ti~jill be available to satisfy all of its obligations hereunder. (j) The Financed Facilities have been or will be designed and constructed so as to comply ~~jith all applicable subdi~Tision, building and zoning ordinances and regulations, if an~j, and any and all applicable federal and State standards and requirements relating to the Financed Facilities. The Financed Facilities have not been and will not be used in any private business or put to any private business use. (k) The County uTill not take or permit, or omit to take or cause to be taken, any action that would cause its obligations under this Contract to be "arbitrage bonds" or "private activity bonds" within the meaning of the Code, or otherwise ad~Jersely affect the exclusion from gross income for federal income tax purposes of the designated interest component of Installment Payments to which such components would otherwise be entitled and, if it should take or permit, or omit to take or cause to be taken, any such action, the County v~rill take or cause to be taken all lawful actions within its poujer necessary to rescind or correct such actions or omissions promptly upon hatTing knowledge thereof. (1} To the extent information is available on the Closing Date, and based upon the County's examination of the Project Sites and of the Plans and Specifications and estimated Project Costs provided by an Appropriate Consultant, the Financed Facilities can be constructed, acquired and equipped for a total price within the total amount of fiends to be available therefor in the Project Fund, income anticipated to be derived from the investment thereof and other funds expected to be available for such purposes. If the total amount available for such purposes in the Project Fund will be insufficient to pay the entire cost of constructing, acquiring and equipping the Financed Facilities, the County ujill pay any such excess costs, with no resulting reduction or offset in the amounts otherwise payable by the County. 7.2. County's Undertaking for Continuing Disclosure. The County undertakes, for the benefit of the beneficial owners of the Certificates, to provide the follo~Ting: (a) by not later than seven months from the end of each of the County's Fiscal Years, to each nationally recognized municipal securities information 93361v2 1 ~ repository ("NRMSIR"}, and the state information depository for the State of North Carolina ("SID"}, if any, audited County financial statements for such fiscal year, if available, prepared in accordance with Section 159-34 of the General Statutes of North Carolina, as it may be amended from time to time, or any successor statute, or, if such audited financial statements are not available by seven months from the end of any fiscal year, unaudited County financial statements for such fiscal year, to be replaced subsequently by audited County financial statements to be delivered within 1 S days after such audited financial statements become a~Tailable for distribution; (b) by not later than seven months from the end of each of the County's Fiscal dears, to each NRMSIR, and to the SID, if any, (i} the financial and statistical data as of a date not earlier than the end of the preceding fiscal year (which data will be prepared at least aruzually, will specify the date as to which such information was prepared and will be delivered with any subsequent material events notices specified in subparagraph {c) below) for the type of information included under the headings in the final Official Statement relating to the 2006A Certificates under the captions , to the extent such items are not included in the audited financial statements referred to in (a} above; (c} in a timely manner, to each NRMSIR or to the Municipal Securities Rulemaking Board ("MSRB"), and to the SID, if any, notice of any of the following events with respect to the 200GA Certificates, if material: (1} principal and interest payment delinquencies; (2} non-payment related defaults; (3) unscheduled draws on debt sercjice reser~jes reflecting financial difficulties; (4) unscheduled draws on any credit enhancements reflecting financial difficulties; (5} substitution of credit or liquidity providers, or their failure to perform; (C} adverse tax opinions or events affecting the tax-exempt status of the Certificates; (7} modifications to rights of the beneficial owners of the Certificates; 93361v2 17 (8) calls for redemption of 200GA Certificates (other than calls pursuant to sinking fund prepayment); (9) defeasances; (10) release, substitution or sale of any property securing repayment of the 200GA Certificates; and (11) rating changes; and (d) in a timely manner, to each NRMSIR or to the MSRB, and to the SID, if any, notice of a failure of the County to provide required annual financial information described in (a) or (b) above on or before the date specified. If the County fails to comply uTith the undertaking described above, the Company may take action to protect and enforce the rights of all the beneficial owners of the 2006A Certificates with respect to such undertaking, including an action for specific performance; provided, however, that failure to comply with such undertaking will not be an Event of Default and hill not result in any acceleration of payment of the 2006A Certificates. All actions ujill be instituted, had and maintained in the manner provided in this paragraph for the benefit of all beneficial owners of the 2006A Certificates. The County, at its option, may make any filing required by this undertaking solely by transmitting such filing to the Texas Mulucipal Ad~Tisory Council {the "MAC") as provided at httU://wti~~v.disclosureusa.or~, unless the SEC has withdrawn the interpretive advice in its letter to the MAC dated September 7, 2004. The County reserves the right to modif~r from time to time the information to be pro~Tided to the extent necessary or appropriate in the County's judgment, pro~Tided that: (A) any such modification may only be made in corulection with a change in circumstances that arises from a change in legal requirements, change in law, or change in the identity, nature, or status of the County; (B) the information to be provided, as modified, would have complied with the requirements of Rule 15c2-12 as of the date of the final Official Statement, after taking into account any amendments or interpretations of Rule 15c2-12, as well as any changes in circumstances; and 93361v2 1 (C} anSj such modification does not materially impair the interests of the beneficial ouTners, as determined either by parties unaffiliated with the County or by the approving vote of the registered owners of a majority in principal amount of the 20~6A Certificates pursuant to the terms of the bond resolution, as it ma~~~ be amended from time to time, at the time of the amendment. Any annual financial information contaiiung modified operating data or financial infonllation will explain, in narrative form, the reasons for the modification and the impact of the change in the type of operating data or financial information being provided. The provisions of this Section will terminate upon payment, or provision ha~Ting been made for payment, in a manner consistent ujith Rule 15c2-12, in full of the Installment Payments. 7.3. By the Company. The Company warrants, represents and covenants (all such warranties, representations and covenants continuing} as follows: (a) The Company is a nonprofit corporation duly orgaiuzed, existing and in good standing under and by virtue of State lau~• and has the pou.•er to enter into this Contract and the Trust Agreement. The Company has duly authorized this Contract and the Trust Agreement and has caused each to be executed on its behalf in accordance with the State lauT. (b) Neither the execution and deli~Tery of this Contract or the Trust Agreement, nor the fulfillment of or compliance with the terms and conditions hereof or thereof, nor the consummation of the transactions contemplated hereby or thereby, results in a breach of the terms, conditions or provisions of the Company's charter or bylaws or any agreement or instntment to uThich the Company is now a party or by which the Compan~j is bound, or constitutes a default under any of the foregoing. (c) To the best of the Company's knouTledge after due and reasonable investigation, there is no action, suit, proceeding or investigation at lauT or in equity before or by any court, public board, or body pending or threatened against or affecting the Company challenging the validity or enforceability of this Contract, the Trust Agreement or any documents relating hereto and the performance of the Company's obligations hereunder and thereunder. 93 361v2 19 ARTICLE VIII INDEMNIFICATION To the extent permitted by lati~r, the County agrees to indermufy, protect and save (a) the Company and its officers and directors, (b} the LGC and its members and employees, and (c) the Trustee and its officers and employees, harmless from all liability, obligations, losses, claims, damages, actions, suits, proceedings, costs and expenses, including attorneys' fees, arising aut of, connected urith, or resulting directly or indirectly from the Project Sites or the Financed Facilities or the transactions contemplated by this Contract. The indemnification arising under this Article ~~rill survive the Contract's termination. ARTICLE IX DISCLAIMER OF WARRANTIES The County acknowledges that neither the Company nor the Trustee has designed the Financed Facilities, that neither the Company nor the Trustee has supplied any plans or specifications uTith respect thereto and that neither the Company nar the Trustee {a) is a marnifactt~rer of, nor a dealer in, any of the component parts of the Financed Facilities or similar Financed Facilities, (b} has made any recommendation, given any advice nor taken an}r other action with respect to (1) the choice of any supplier, vendor or designer of, or any other contractor with respect to, the Financed Facilities or any component part thereof or any property or rights relating thereto, or (2) any action taken or to be taken with respect to the Financed Facilities or any component part thereof or any property or rights relating thereto at any stage of the construction thereof, {c) has at any time had physical possession of the Financed Facilities or any component part thereof or made any inspection thereof or an}r property or rights relating thereto, and (d} has made any warranty or other representation, express or implied, that the Financed Facilities or any component part thereof or any property or rights relating thereto (1) ~vill not result in or cause injury or damage to persons or propert}r, {2} has been or ~jill be properly designed, or will accomplish the results which the County intends therefor, or {3) is safe in any manner or respect. THE COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER WITH RESPECT TO THE FINANCED FACILITIES OR ANY COMPONENT PART THEREOF, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE MERCHANTABILITY OR THE FITNESS OR SUITABILITY THEREOF FOR ANY PURPOSE, and further 93361v2 20 including the design or condition thereof; the safety, workmanship, quality or capacity thereof; compliance thereof with the requirements of any la~v, rule, specification or contract pertaining thereto; any latent defect; the ability of the Financed Facilities to perform anyT function; that the Amount Ad~Tanced will be sufficient to pay all Project Costs; or any other characteristic of the Financed Facilities; it being agreed that the County is to bear all risks relating to the Financed Facilities, the completion thereof or the transactions contemplated by this Contract or by the Deed of Trust or the Trust Agreement, and the County waives the benefits of any and all implied warranties and representations of the Company. The provisions of this Article will sur~Jive the Contract's termination. ARTICLE ~ DEFAULT AND REMEDIES 10.1. Events of Default. An "Event of Default" is any of the following: (a) The County's failure to make any Installment Payment by the first day of the calendar month follo~~jing the due date. (b) The occurrence of an Event of Nonappropriation. (c) The County breaches or fails to perform or observe any term, condition or covenant of this Contract, the Deed of Trust or the Trust Agreement on its part to be obser~Ted or performed, other than as referred to in subsections (a) or (b) above, including payment of any Additional Payment, for a period of 30 days after ti~~ritten notice specifying such failure and requesting that it be remedied has been given to the Count}j, unless the Company agrees in writing to an extension of such time prior to its expiration; provided, however, that if the failure stated in the notice caruzot reasonably be corrected ti~rithin the applicable period and the County institutes corrective action within the applicable period, no Event of Default will be deemed to ha<<Te occurred so long as the County diligently pursues the same. (d) Proceedings under any bankruptcy, insol~Tency, reorganization or similar la~v are instituted by or against the County as a debtor, or a receiver, custodian or similar officer is appointed for the County or any of its property. 93361v2 21 (e) Any warranty, representation or statement made by the County in this Contract, in the Deed of Trust or in the Trust Agreement is found to be incorrect or misleading in any material respect as of the Closing Date. {f) Any lien, charge or encumbrance {other than Permitted Encumbrances} prior to or affecting the validity of the Deed of Trust is found to exist, or proceedings are instituted to enforce any lien, charge or encumbrance against the Mortgaged Property and such lien, charge or encumbrance would be prior to the lien of the Deed of Trust. (g) The County fails to pay when due any principal of or interest on any of its general obligation bonds. 10.2. Remedies on Default. Upon the continuation of any E~Tent of Default, the Company may, without any further demand or notice, exercise any one or more of the following remedies: (a) Declare the unpaid principal components of the Installment. Payments, and the accrued interest thereon, immediately due and payable; (b) Proceed by appropriate court action to enforce performance by the County of the applicable covenants of tlus Contract, the Deed of Trust or the Trust Agreement or to recover for the breach thereof; and (c) Avail itself of all available remedies under the Deed of Trust, including foreclosure on the Pledged Facility and recovery of attorneys' fees and other expenses, and of all other remedies available at lauT or in equity. The Company's exercise of remedies is subject to the limitations set forth in Article XII. 10.3. No Remedy Exclusive; Delay Not Waiver. All remedies under this Contract are cumulative and may be exercised conctu~rently or separately. The exercise of any ane remedy will not be deemed an election of such remedy or preclude the exercise of any other remedy. If any Event of Default occurs and is thereafter waived, such ~~Taiver ~~Till be limited to the particular breach so waived and ~~jill not be deemed a waiver of any other breach under this Contract. ARTICLE XI ASSIGNMENTS 93361v2 22 11.1. County's Assignments. The County will not sell or assign any interest in this Contract urithout the Company's prior uTritten consent. 11.2. Company's Assignment. The Company uTill assign substantially all of its rights under this Contract, including rights to receive and enforce Contract Payments (but excluding the Company's rights to indemnification and payment of costs and its rights to receive notices} to the Trustee pursuant to the Trust Agreement, without recourse against the Company. The County consents to such assignment, and agrees to accept performance, direction and any other action by the Trustee to the same extent provided in this Contract for the action of the Corporation, and to render performance to the Trustee to the same extent provided in this Contract for performance to the Corporation (in each case, except with respect to the Corporation's reserved rights}. Notice of any further assignment must be provided to the County. The County uTill keep a complete and accurate record of all assignments. After the giving of an~J such notice, the County will thereafter make all payments in accordance with the notice to the assignee named therein and will, if so requested, acknowledge such assignment in writing, but such acknowledgment uTill in no ~vay be deemed necessary to make the assignment effective. ARTICLE XII COUNTY' S LIMITED OBLIGATION Notwithstanding any other provision of this Contract, the parties intend that this transaction comply with North Carolina General Statutes Section 160A-20. No deficiency judgment may be entered against the County in violation of such Section 16()A-2t). No provision of this Contract will be construed or interpreted as creating a pledge of the County's faith and credit uTithin the meaning of any constitutional debt limitation. No provision of this Contract uTill be construed or interpreted as an illegal delegation of governmental powers or as an improper donation or lending of the County's credit uTithin the meaning of the North Carolina constitution. The County's taxing pourer is not and may not be pledged directly or indirectly or contingently to sec~.~re any moneys due under this Contract. No provision of this Contract will be construed to pledge or to create a lien on any class or source of the County's moneys (other than the funds and accounts 93361v2 23 established pursuant to the Trust Agreement as may be provided in the Trust Agreement}, nor will any provision of this Contract restrict the County's future issuance of any of its bonds or other obligations payable from any class or source of the County's moneys (except to the extent the this Contract, the Trust Agreement, the Deed of Trust and the 2006A Certificates restrict the incurrence of additional obligations secured by the Mortgaged Property). To the extent of any conflict between this Article and any other provision of this Contract, tlus Article will take priority. ARTICLE XIII MISCELLANEOUS 13.1. Count~~'s Acceptance of Trust Agreement Terms. The County accepts its responsibilities under the Trust Agreement., and agrees to be bound thereby. 13.2. Information to Insurer. So long as the Insurer is not in default under the Policy, the County uTill permit the Insurer to discuss the County's affairs, finances and accounts, or any information the Insurer may reasonably request. regarding the security for the Obligations, v~Tith appropriate County officers. The County will permit the Insurer to have access to the Financed Facilities and have access to and to make copies of all books and records relating to the Obligations at anv reasonable time. 13.3. Notices. (a) Any communication provided for in this Contract must be in writing. (b) Alzy communication under tlus Contract will be sufficiently given and deemed given when delivered by hand or on the date shown as the date of delivery on a United States Postal Service rettu~n receipt, if addressed as follo~Ts: (i) if to the County, to Orange County Manager, Regarding: Notice under 2006A COPS Financing Contract, Post Office Box 8181, Hillsborough, North Carolina 27278. {ll) if to the Company, to Orange County Public Facilities Company, Regarding: Notice under 2006A COPS Financing Contract, 93361v2 ~4 (iii) if to the Trustee, to The Bank of New York, Attention: Corporate Trust Department, Regarding: Notice under 200~A COPS Financing Contract (Orange County, North Carolina), I O1 C 1 Centurion Parku~•ay, Jacksonville, FL 32256. (c) Any communication sent under this Contract to the Company must also be sent to the County, the Trustee and the Insurer {at the address provided far in the Trust Agreement). (d) Any addressee may designate additional or different addresses for commu~ucations by notice given under this Section to each of the others. 13.4. Non-Business Days. If the date far making any payment or the last day for performance of any act or the exercising of any right will not be a Business Day, such payment may be made or act performed or right exercised on or before the next succeeding Business Day. 13.5. Governing Law. The parties intend that North Carolina law will govern this Contract. To the extent permitted by law, the parties agree that any action brought uTith respect to this Contract will be brought in the North Carolina General Court of Justice in Orange County, North Carolina. 13.6. Severability. If any provision of this Contract is determined to be unenforceable, that will not affect any other provision of this Contract. 13.7. Amendments. This Contract will not be changed except in accordance with [Article X] of the Trust Agreement. 13.8. Binding Effect. Subject to the specific provisions of this Contract, this Contract will be binding upon and inure to the benefit of and be enforceable by the parties and their respective successors and assigns. 13.9. Third-Party Beneficiaries. The parties intend that the Trustee and the Insurer be third-party beneficiaries of this Contract. 13.10. Time. Time is of the essence of this Contract and each and all of its provisions. 13.11. Limitation on Liability of Officers and Agents. No officer, agent or employee of the County, of the LGC or the Company u~•ill be subject to any 93361v2 25 personal liability or accountability by reason of the execution of this Contract or any other documents related to the transactions contemplated by this Contract. Such officers, agents or employees will be deemed to execute such documents in their official capacities only, and not in their indi~Tidual capacities. This Section will not relieve any such officer, agent or employee from the performance of any official duty provided by law. 13.12. Counterparts. This Contract may be executed in several counterparts, including separate counterparts. Each will be an original, but all of them together constitute the same instrument. 13.13. Definitions. Unless the context clearly requires otherwise, capitalized terms used in this Contract and not otherwise defined will have the meanings set. forth in Exhibit A. (The ~enzainde~ of this page has been left blank intentionally.) 93361v2 ~~ IN WITNESS WHEREOF, the County and the Company have caused this instrument to be executed as of the day and year first above written by duly authorized officers. ATTEST: (SEAL) ORANGE COUNTY NORTH CAROLINA Donna S. Baker Clerk, Board of Commissioners ATTEST: (SEAL} [name] Secretary This contract has been approved under the provisions of Article 8, Chapter 159 of the General Statutes of North Carolina. Timothy L. Romocki Acting Secretary, North Carolina Local Government Commission By [Timothy L. Romocki or Designated Assistant] [Installment Financing Contract dated as of April 1, 2006] Exhibits - A - Definitions B - Payment schedule C - Financed Facilities description Barry Jacobs Chair, Board of Commissioners ORANGE COUNTY PUBLIC FACILITIES COMPANY [name] President 93361v2 27 EXHIBIT A -Definitions For all purposes of this Contract, unless the context requires otherS~rise, the following terms will have the following meanings: "2006A Certificates" has the meaning ascribed to that term in the Trust Agreement. "Additional Payments" means the reasonable and customary fees and expenses of the Company or the Trustee, any of the Company's or the Trustee's expenses (including attorneys' fees) in prosecuting or defending any action or proceeding in connection with this Contract and any taxes or any other expenses, including, but not limited to, the Company's administrative or legal costs {including costs of maintaining its existence and good standing), licenses, permits, state and local sales and use or ownership taxes or property taxes which the Company is required to pay as a result of this Contract, inspection and reinspection fees, or any other amounts payable by the County as a result of its covenants under this Contract, under the Deed of Trust or under the Trust Agreement (together with interest that may accrue on any of the above if the County uTill fail to pay the same, as set forth in this Contract}. "Amount Advanced" has the meaning assigned in Article I. "Appropriate Consultant" means one or more independent public accountants or firms of public accountants, or architects or firms of architects, engineers or firms of engineers, professional management consultants or firms of management consultants, or such other independent persons, hatTing (at the time retained for the purposes of tlus Contract) a favorable reputation for skill and experience in an appropriate area of expertise, as may be selected by the County and approved by the Company (~~Thich approval will not be unreasonably ~~Tithlield) from time to time to perform and carry out the duties imposed on an Appropriate Consultant by this Contract. "Budget Officer" means the County officer from time to time charged with preparation of the draft County budget initially submitted to the Count~j Board for its consideration. "Certificates" has the meaning ascribed to that term in the Tnist Agreement. J3861v2 2s "Closing Date" means the date on which this Contract is first executed and deli~rered by the parties. "Cade" means the Internal Revenue Code of 1986, as amended, including regulations, rulings and revenue procedures promulgated thereunder or under the Internal Revenue Code of 1954, as amended, as applicable to the County's obligations under this Contract. Reference to any specific Code provision will be deemed to include any successor provisions thereto. "Completion Certificate" means the certificate evidencing substantial completion of the Financed Facilities provided for in Section 3.3. "Completion Date" means the date on which the County delivers the Completion Certificate. "Construction Contracts" means the contracts between the County and one or more contractors selected and hired by the County for the construction of the Pledged Facility. "Construction Period" means the period between the Closing Date and the Completion Date. "Contract Payments" means Installment Payments and Additional Payments. "County Board" means the County's governing board as from time to time constituted. "County Representative" means the County Manager, County finance officer or any other person or persons at the time designated, by a written certificate furnished to the Trustee and signed on the County's behalf by the County Manager or the Chair of the County Board, to act on the County's behalf far the purpose of performing any act (or any specified act} under this Contract. "Deed of Trust" means the Deed of Trust and Security Agreement, dated as of April 1, 2006, from the County to a deed of trust trustee for the benefit of the Compan~j and its assigns, as it may be duly amended or supplemented. "Event of Default" means one or more events of default as defined in Section 10.1. 93361v2 ~9 "Event of Nonappropriation" means a determination by the County Board not to include an appropriation for Contract Payments in the County budget for any Fiscal Year, as contemplated in Section 2.5{a), or any subsequent action by the County Board to delete such an appropriation from an approved County budget. "Financed Facilities" means (a} the Pledged Facility, along with (b) all other County property the construction or acquisition of which has been financed (in whole or in part} urith proceeds of the 2Q06A Certificates, in each case along with all renewals, replacements, additions and substitutions therefor. Exhibit C provides a general description of the Financed Facilities, as intended by the Counter as of the Closing Date. "Fiscal Year" means the County's fiscal year beginning July 1, or such other fiscal year as the County may later lawfully establish. "Force Majeure" means, without limitation, acts of Gad; strikes, lockouts or other industrial disturbances; acts of public enemies; orders or restraints of any kind of the federal or State government or any of their departments, agencies or officials or any civil or military authority; insurrection; riots; landslides; earthquakes; fires; storms; droughts; floods; falling space debris; explosions; breakage or accidents to machinery, transmission pipes or canals; or any other cause ar event not v~rithin the County's control but not due to the County's r negligence. "Independent Counsel" means an attorney duly admitted to the practice of law before the highest court in the State that is selected by the County and approved by the Company (which approval will not be unreasonably withheld}. "Installment Payments" means the payments payable by the County pursuant to Section 2.1. "LGC" means the North Carolina Local Govenunent Commission, or any successor to its functions. "Mortgaged Property" has the meaning assigned in the Deed of Trust. "Net Proceeds" means all payments and proceeds derived from (a} claims made on account of insurance coverages required under this Contract, (b} any exercise of condemnation or eminent domain authority related to all or any portion of the Mortgaged Property, (c} proceeds of title insurance related to the Mortgaged Property, {d) payments on any bonds required by Section 3.4, {e} any amounts J3861v2 3Q recovered from any contractor on an action for default or breach, as described in Section 3.4, or (f) any sale of the Pledged Facility, as well as all judgments, settlements or other payments in lieu of any of the foregoing, in any case reduced by the susn of (i} all expenses (including attorneys' fees and casts) incurred in the collection of such proceeds and {ii} all amounts expended by the County, the Company or the Tnistee to remedy the event giving rise to such proceeds, all of which amounts will be paid or reimbursed from the gross proceeds. "Permitted Encumbrances" means, as of any particular time, (a) the "Existing Encumbrances," as defined in the Deed of Trust, (b) liens for taxes and assessments not then delinquent, or liens which may remain unpaid pursuant to Sections 4.8 or 5.2, (c) the Deed of Trust, (d} any lease to the School Board as contemplated by Section 4.6(b}, (e} any lien or encumbrance made by its terms expressly subordinate to the lien of the Deed of Trust, and {f) easements and rights- of-uray granted by the County pursuant to [Section 1-6(e)(i)] of the Deed of Trust. "Plans and Specifications" means the plans and specifications for the Pledged Facility as prepared for the County by an Appropriate Consultant. "Pledged Facility" has the meaning ascribed to that term in the Deed of Trust, and generally includes the planned ne~T middle school for the Orange County school system to be known as "Gravelly Hill Middle School." "Pledged Site" has the meaning ascribed to that term in the Deed of Trust, and generally includes the real property upon which the Pledged Facility is to be constructed. "Project Costs" means all costs of the design, planning, constructing, acquiring, installing and equipping of the Financed Facilities as determined in accordance with generally accepted accounting principles and that will not ad~Tersely affect the exclusion from gross income for federal income tax purposes of the designated interest component of Installment Payments payable under this Contract, including (a) sums required to reimburse the County or its agents for advances made for any such costs, {b) interest during the construction process and for up to six months thereafter, and (c) all costs related to the financing of the Financed Facilities through this Contract and all related transactions. "Project Sites" means {a) the Pledged Site, along with {b) the real property associated with the remainder of the Financed Facilities. 93361v2 31 "School Board" means The Orange County Board of Education. "State" means the State of North Carolina. "Trust Agreement" means the Tnist Agreement of even date between the Company and the Trustee, as it maybe duly amended or supplemented. "Trustee" means The Bank of Ne~v fork, and its successors as Trustee under the Trltst Agreement. In addition, all capitalized terms used herein and not otherwise defined have the meanings assigned thereto in the Trust Agreement. 93361v2 ~~ EXHIBIT B -Schedule of Installment Payments [To came.] EXHIBIT C -The Financed Facilities Description Approx. allocation from Amount Advanced ($} C7ravelly Hill Middle School -construction costs Efland/Buckhorn Community Water and Sewer Construction Renovations to various schools in the Chapel Hill - Carrboro district 5,153,000 Planning expenses related to planned near County animal services facility 700,000 Acquisition of conservation easements Chapel Hill Senior Center -construction costs 4,150;000 Sportsplex -retire acquisition financing and provide permanent financing 6,000,000 93361v2 33