HomeMy WebLinkAboutSR - Res FA-65/09-64 - EIP Variable Demand Lease Revenue Bonds, Series 2009 CITY OF PALM DESERT
STAFF REPORT
REQUEST: AUTHORIZATION TO PROVIDE FOR A SAFEKEEPING SET-
ASIDE FUND FOR THE PALM DESERT FINANCING
AUTHORITY'S ENERGY INDEPENDENCE PROGRAM,
VARIABLE RATE DEMAND LEASE REVENUE BONDS, SERIES
2009 (FEDERALLY TAXABLE) IN CONNECTION WITH
DEVELOPER CLAIM AGAINST THE CITY, AND APPROVAL OF
RELATED DOCUMENTS
SUBMITTED BY: PAUL S. GIBSON, FINANCE DIRECTOR
DATE: AUGUST 27, 2009
CONTENTS: RESOLUTION NO. FA- 65
RESOLUTION NO. 09-64
FORM OF INDENTURE
FORM OF LEASE AGREEMENT
Recommendation:
That the Palm Desert Financing Authority (the "Authority") adopt the following
resolution:
• Resolution No. FA- 65 , a resolution of the Palm Desert Financing
Authority supplementing Resolution No. FA-63 to provide for a
safekeeping set-aside fund for its Energy Independence Program,
Variable Rate Demand Lease Revenue Bonds, Series 2009, in connection
with developer claim against City; approving related changes to certain
documents in connection therewith; and authorizing certain other matters
relating thereto.
That the City Council adopt the following resolution:
• Resolution No. 09-64 a resolution of the City Council of the City of Palm
Desert supplementing Resolution No. 09-53 to provide for a safekeeping
set-aside fund for the Palm Desert Financing Authority's Energy
Independence Program, Variable Rate Demand Lease Revenue Bonds,
Series 2009; approving related changes to certain documents in
connection therewith, and authorizing certain other matters relating
thereto.
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Backqround:
On June 25, 2009, the City Council and the Authority Commission approved the
issuance of the Authority's Energy Independence Program, Variable Rate Demand
Lease Revenue Bonds, Series 2009 (Taxable) (the "Bonds"), which were expected to
close on July 23, 2009. On July 13, 2009, prior to the issuance of the Bonds, the City
Clerk received Claim No. 646, in which various related developer entities allege and
seek to recover from the City damages in excess of $100 million relating to the Villa
Portofino development project.
To mitigate certain risks associated with Claim No . 646 at this time, Wells Fargo Bank,
National Association (the "Bank"), as provider of the irrevocable letter of credit with
respect to the Bonds, is requiring the City to set aside monies in the amount of
$2,455,000 in a safekeeping fund to be held by the Trustee for the Bonds, until certain
release tests (set forth in Section 5.01(d) of the Lease Agreement) are met and in any
event no longer than 5 years. The release tests will allow the safekeeping fund to be
released back to the City once certain events occur that provide certainty as to the
resolution of Claim No. 646.
The Bank requires an outside period of 5 years for maintenance of the safekeeping fund
in order to mitigate the Bank's exposure on the letter of credit (which has an initial term
of 3 years and is renewable) and to match the 5-year term of the interest rate collar
being provided by the Bank to manage the City's and Authority's interest rate risk on the
variable rate Bonds.
The monies in the safekeeping fund will only be used for debt service on the Bonds if
there is a judgment or settlement with respect to Claim No. 646 that would impair the
ability of the City to pay debt service for the Bonds. So long as Claim No. 646 is
resolved in a way that does not impair the City's ability to pay debt service on the
Bonds, the monies in the safekeeping fund will stay intact and will not be disbursed.
If Claim No. 646 is resolved without any impairment to the City's ability to pay debt
service on the Bonds, all monies originally deposited in the safekeeping fund, together
with all interest earnings thereon, will be returned to the City.
No additional appropriation needs to be made for the deposit to the safekeeping fund,
because the Bank has agreed that the City will direct the investment of the monies in
the fund and the City has the ability under Government Code Section 53601 and its
investment policy to invest surplus monies in investments that have a remaining term to
maturity of not more than 5 years. The Bank has also agreed that the safekeeping fund
may be invested in the various authorized investments permitted under the Indenture for
the Bonds, and authorized City staff intend to invest the safekeeping fund in LAIF.
The California Government Code contains certain provisions permitting judgments
against cities to be paid in installments over years and governing appropriations for
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Staff Report
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judgments. In light of these Government Code provisions, the Bank also is requiring the
City to make annual appropriations for Bonds debt service prior to any annual
appropriation for any judgment relating to Claim No. 646, as permitted under
Government Code Section 970.4.
Conclusion:
Claim No. 646 was unanticipated and intervened between the June 25, 2009
City/Authority authorization to issue the Bonds and the July 23, 2009 closing for the
Bonds. Claim No. 646 introduces additional risk for the Bank as provider of the letter of
credit and the interest rate collar approved by the City and the Authority on June 25,
2009. The attached documents implement the Bank's additional terms and conditions
required for the issuance of the letter of credit and the interest rate collar, both of which
are part of the Bonds financing structure that was recommended by the 9 member
committee after reviewing responses to the City's February 2009 "Request for
Proposals — Energy Program Financing" and that was selected by Council on May 21,
2009.
New provisions have been added to the Indenture (new Section 3.05) and the Lease
Agreement (new Section 5.01(d)) to incorporate the additional terms and conditions
required by the Bank in order to issue the letter of credit and the interest rate collar.
The attached resolutions authorize conforming and related changes to be made to the
other bond documents and the Official Statement approved by the City Council and the
Authority Commission on June 25, 2009.
Submitted by: Approval:
��
Paul S. Gibson h M. Wohlmuth
City Treasurer/ Director of Finance �Ci Manager
� �,� CiTY COUNCILAC�'ION
BY FIN AUTH APPROVED DENiED
� � _ (�� RECEIVED OTHER
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�"��.F$�r��4�D �Y: �� � ���� MEETING DATE �a7- _
AYES:���� F2r:�CeS���/7/��uul CS��f�
p�i�inal on file with City' erk'� Of#'sce NOEs: ��- �
ABSENT: /U�n� -
AI3STAIN: e
VERIFIED BY: � �
Original on File with City erk's Office
G:\Finance\Niamh Ortega\Staff Reports\SR - EIP 2009 LRBs 082709.docx
RESOLUTION NO. FA-65
A RESOLUTION OF THE PALM DESERT FINANCING AUTHORITY
SUPPLEMENTING RESOLUTION NO. FA-63 TO PROVIDE FOR A
SAFEKEEPING SET-ASIDE FUND FOR ITS ENERGY INDEPENDENCE
PROGRAM, VARIABLE RATE DEMAND LEASE REVENUE BONDS, SERIES
2009, IN CONNECTION WITH DEVELOPER CLAIM AGAINST CITY;
APPROVING RELATED CHANGES TO CERTAIN DOCUMENTS IN
CONNECTION THEREWITH; AND AUTHORIZING CERTAIN OTHER
MATTERS RELATING THERETO
RECITALS:
WHEREAS, the Palm Desert Financing Authority (the "Authority") previously adopted its
Resolution No. FA-63 on June 25, 2009 ("Resolution No. FA-63"); and
WHEREAS, Resolution No. FA-63 authorized the issuance by the Authority of its Energy
Independence Program, Variable Rate Demand Lease Revenue Bonds, Series 2009 (Federally
Taxable) (the "Bonds") and approved the forms of, and the execution and delivery of, an
Indenture (the "Indenture") and a Lease Agreement (the "Lease Agreement"); and
WHEREAS, Resolution No. FA-63 also approved the forms of, and the execution and
delivery of, a Site Lease, an Assignment Agreement, a Bond Purchase Contract, a Remarketing
Agreement, Interest Rate Collar pocuments (as defined in Resolution No. FA-63) (collectively,
the "Other Bond Documents"), and an Official Statement (the "Official StatemenY'); and
WHEREAS, on July 13, 2009, subsequent to the adoption of Resolution No. FA-63 and
prior to the issuance of the Bonds, the City Clerk of the City received Claim No. 646 ("Claim No.
646"), filed by LMI Co., LLC, Royce International Investment Company, Severin & Company
LLC, and Palm Desert Villa Portfolio I, LLC, which claim alleges, and seeks to recover from the
City, damages in excess of $100 million relating to the Villa Portofino development project; and
WHEREAS, to mitigate certain risks associated with Claim No. 646 at this time, Wells
Fargo Bank, National Association, as provider of the irrevocable letter of credit with respect to
the Bonds (the "Letter of Credit"), now requires additional terms to be added to the financing
(the "Additional Bank Terms") in order to proceed with issuance of the Letter of Credit; and
WHEREAS, if approved by the City and the Authority, the Additional Bank Terms will
require the City to (i) set aside funds in the amount of $2,455,000 in a safekeeping fund (the
"Safekeeping Set-Aside Fund") to be held by the trustee for the Bonds (the "Trustee"), and used
to pay debt service on the Bonds only in the event resolution of Claim No. 646 results in a
judgment against the City or a settlement of Claim No. 646 in such an amount and manner that
would impair the ability of the City to make payments to the Trustee for debt service on the
Bonds (until such time as certain release tests are met and in any event no longer than 5 years),
and (ii) make its annual appropriation for payments under the Lease Agreement (which will be
used by the Trustee to pay debt service on the Bonds) prior to any appropriation with respect to
such fiscal year for payment of a final judgment, if any, issued in connection with Claim No. 646,
as permitted under California Government Code Section 970.4; and
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Resolution No. FA-65
Page 2 of 3
WHEREAS, in order to effect the issuance of the Bonds, the Authority Commission
desires to approve revisions in substance to the forms of the Indenture and the Lease
Agreement previously approved by Resolution No. FA-63, in order to establish the Safekeeping
Set-Aside Fund and otherwise incorporate the Additional Bank Terms, and to reaffirm its
approval of the Other Bond Documents and the Official Statement, the forms of which
Indenture, Lease Agreement, Other Bond Documents, and Official Statement are on file with the
Secretary of the Authority.
NOW, THEREFORE, THE PALM DESERT FINANCING AUTHORITY DOES HEREBY
RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
Section 1. Recitals. The above recitals, and each of them, are true and correct.
Section 2. Issuance of Bonds: Indenture. The Indenture, proposed to be entered into
by and between the Authority and the Trustee, in the form presented at this meeting and on file
with the Secretary of the Authority (the "Authority Secretary"), is hereby approved. Subject to
the parameters set forth in Section 4 of Resolution No. FA-63, the issuance of the Bonds is
hereby approved and authorized. Subject to Section 4 of Resolution No. FA-63, each of the
President, the Vice-President, and the Chief Administrative Officer, and any deputy of such
officers (each, an "Authorized Officer"), acting singly, is hereby authorized and directed, for and
in the name and on behalf of the Authority, to execute and deliver the Indenture in substantially
said form, with such additions or changes as the Authorized Officer executing the same may
approve (such approval to be conclusively evidenced by such Authorized Officer's execution
and delivery thereof).
Section 3. Lease Agreement. The Lease Agreement (the "Lease Agreement"),
proposed to be entered into by and between the Authority and the City, in the form presented at
this meeting and on file in the office of the Authority Secretary, is hereby approved. Each
Authorized Officer, acting singly, is hereby authorized and directed, for and in the name and on
behalf of the Authority, to execute and deliver the Lease Agreement in substantially said form,
with such changes therein as the Authorized Officer executing the same may approve (such
approval to be conclusively evidenced by such Authorized Officer's execution and delivery
thereof).
Section 4. Other Bond Documents. Approval of the forms of the Other Bond
Documents previously presented on June 25, 2009, on file in the office of the Authority
Secretary and incorporated herein by reference, is hereby reaffirmed, and any one of the
Authorized Officers, acting singly, is hereby authorized to execute such Other Bond Documents
in substantially the form previously approved, with such changes therein to reflect the revisions
in the Indenture and the Lease Agreement approved by this Resolution to address Claim No.
646 and the Additional Bank Terms as may be approved by such officer and by Bond Counsel;
provided, execution of the Bond Purchase Contract, the Remarketing Agreement, and the
Interest Rate Collar pocuments shall remain subject to terms and conditions set forth in,
respectively, Sections 8, 9, and 10 of Resolution No. FA-63. Approval of such additions and
changes shall be conclusively evidenced by the execution and delivery of such Other Bond
Documents.
Section 5. Official Statement. Approval of the form of the Official Statement
previously presented on June 25, 2009, on file in the office of the Authority Secretary and
incorporated herein by reference, is hereby reaffirmed, and any one of the Authorized Officers,
acting singly, is hereby authorized to execute the Official Statement in substantially the form
Resolution No. FA-65
Page 3 of 3
previously approved, with such changes therein to disclose Claim No. 646 and to reflect the
revisions in the Indenture and the Lease Agreement approved by this Resolution on account of
Claim No. 646 and the Additional Bank Terms as may be approved by such officer, the City
Attorney of the City, Bond Counsel, and Disclosure Counsel. Approval of such additions and
changes shall be conclusively evidenced by the execution and delivery of the final Official
Statement.
Section 6. Other Acts. The Authorized Officers and all other officers of the Authority
are hereby authorized and directed, jointly and severally, to do any and all things, to execute
and deliver any and all documents that they may deem necessary or advisable in order to
consummate the sale, issuance and delivery of the Bonds, or otherwise to effectuate the
purposes of this Resolution, the Indenture, the Site Lease, the Lease Agreement, the
Assignment Agreement, the Remarketing Agreement, the Official Statement, the Bond
Purchase Contract, and the Interest Rate Collar pocuments and any such actions previously
taken by such officers are hereby ratified and confirmed.
Section 7. Effective Date. This Resolution shall take effect immediately upon
adoption.
PASSED AND ADOPTED by the Palm Desert Financing Authority Commission at a
meeting held on the 27th day of August, 2009, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAI N:
ROBERT A. SPIEGEL, PRESIDENT
ATTEST:
RACHELLE D. KLASSEN, SECRETARY
PALM DESERT, CALIFORNIA
RESOLUTION NO. 09-64
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT SUPPLEMENTING RESOLUTION NO. 09-53 TO PROVIDE
FOR A SAFEKEEPING SET-ASIDE FUND FOR THE PALM DESERT
FINANCING AUTHORITY'S ENERGY INDEPENDENCE PROGRAM,
VARIABLE RATE DEMAND LEASE REVENUE BONDS, SERIES 2009;
APPROVING RELATED CHANGES TO CERTAIN DOCUMENTS IN
CONNECTION THEREWITH; AND AUTHORIZING CERTAIN OTHER
MATTERS RELATING THERETO
RECITALS:
WHEREAS, the City Council of the City of Palm Desert (the "City") previously
adopted its Resolution No. 09-53 on June 25, 2009 ("Resolution No. 09-53"); and
WHEREAS, in connection with the issuance by the Palm Desert Financing
Authority (the "Authority") of its Energy Independence Program, Variable Rate Demand
Lease Revenue Bonds, Series 2009 (Federally Taxable) (the "Bonds") at the City's
request, Resolution No. 09-53 approved the forms of, and the execution and delivery of,
a Lease Agreement (the "Lease Agreement"); and
WHEREAS, Resolution No. 09-53 also approved the forms of, and the execution
and delivery of, a Site Lease, a Reimbursement Agreement, Interest Rate Collar
Documents (as defined in Resolution No. 09-53), and a Bond Purchase Contract for the
Bonds (collectively, the "Other Bond Documents'); and
WHEREAS, on July 13, 2009, subsequent to the adoption of Resolution No. 09-
53 and prior to the issuance of the Bonds, the City Clerk received Claim No. 646 ("Claim
No. 646"), filed by LMI Co., LLC, Royce International Investment Company, Severin &
Company LLC, and Palm Desert Villa Portfolio I, LLC, which claim alleges, and seeks to
recover from the City, damages in excess of $100 million relating to the Villa Portofino
development project; and
WHEREAS, to mitigate certain risks associated with Claim No. 646 at this time,
Wells Fargo Bank, National Association, as provider of the irrevocable letter of credit
with respect to the Bonds (the "Letter of Credit"), now requires additional terms to be
added to the financing (the "Additional Bank Terms") in order to proceed with issuance
of the Letter of Credit; and
WHEREAS, if approved by the City and the Authority, the Additional Bank Terms
will require the City to (i) set aside funds in the amount of $2,455,000 in a safekeeping
fund (the "Safekeeping Set-Aside Fund") to be held by the trustee for the Bonds (the
"Trustee"), and used to pay debt service on the Bonds only in the event resolution of
Claim No. 646 results in a judgment against the City or a settlement of Claim No. 646 in
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Resolution No. 09-64
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such an amount and manner that would impair the ability of the City to make payments
to the Trustee for debt service on the Bonds (until such time as certain release tests are
met and in any event no longer than 5 years), and (ii) make its annual appropriation for
payments under the Lease Agreement (which will be used by the Trustee to pay debt
service on the Bonds) prior to any appropriation with respect to such fiscal year for
payment of a final judgment, if any, issued in connection with Claim No. 646, as
permitted under California Government Code Section 970.4; and
WHEREAS, in order to effect the issuance of the Bonds, the City Council desires
to approve revisions in substance to the form of the Lease Agreement previously
approved by Resolution No. 09-53, in order to establish the Safekeeping Set-Aside
Fund and otherwise incorporate the Additional Bank Terms, and to reaffirm its approval
of the Other Bond Documents, the forms of which Lease Agreement and Other Bond
Documents are on file with the City Clerk.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM DESERT
DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
Section 1. Recitals. The above recitals, and each of them, are true and correct.
Section 2. Lease Agreement. The Lease Agreement, proposed to be entered
into by and between the Authority and the City, in the form presented at this meeting
and on file in the office of the City Clerk, is hereby approved. Each of the Mayor (or in
his absence, the Mayor Pro Tem) and the City Manager of the City (each an "Authorized
Officer"), acting singly, is hereby authorized and directed, for and in the name and on
behalf of the City, to execute and deliver the Lease Agreement in substantially said
form, with such changes therein as the Authorized Officer executing the same may
approve (such approval to be conclusively evidenced by such Authorized Officer's
execution and delivery thereofl.
Section 3. Other Bond Documents. Approval of the forms of the Other Bond
Documents previously presented on June 25, 2009, on file in the office of the City Clerk
and incorporated herein by reference, is hereby reaffirmed, and any one of the
Authorized Officers, acting singly, is hereby authorized to execute such Other Bond
Documents in substantially the form previously approved, with such changes therein to
reflect the revisions in the Lease Agreement approved by this Resolution to address
Claim No. 646 and the Additional Bank Terms as may be approved by such officer and
by Bond Counsel; provided, execution of the Bond Purchase Contract and the Interest
Rate Collar pocuments shall remain subject to terms and conditions set forth in,
respectively, Sections 5 and 6 of Resolution No. 09-53. Approval of such additions and
changes shall be conclusively evidenced by the execution and delivery of such Other
Bond Documents.
Section 4. Other Acts. The Authorized Officers and all other officers of the City
are hereby authorized and directed, jointly and severally, to do any and all things, to
execute and deliver any and all documents that they may deem necessary or advisable
in order to consummate the sale, issuance and delivery of the Bonds, or otherwise to
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Resolution No. 09-64
Page 3 of 3
effectuate the purposes of this Resolution, the Site Lease, the Lease Agreement, the
Reimbursement Agreement, the Interest Rate Collar pocuments, and the Bond
Purchase Contract, and any such actions previously taken by such officers, are hereby
ratified and confirmed.
Section 5. Effective Date. This Resolution shall take effect immediately upon
adoption.
PASSED AND ADOPTED by the City Council of the City of Palm Desert at a
meeting held on the 27th day of August, 2009, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ROBERT A. SPIEGEL, MAYOR
ATTEST:
RACHELLE D. KLASSEN,
CITY CLERK
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INDENTURE
by and between the
PALM DESERT FINANCING AUTHORITY
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
Trustee
Dated as of August 1, 2009
$5,225,000
PALM DESERT FINANCING AUTHORITY
ENERGY INDEPENDENCE PROGRAM
VARIABLE RATE DEMAND
LEASE REVENUE BONDS, SERIES 2009
(FEDERALLY TAXABLE)
TABLE OF CONTENTS
Paae
ARTICLEI DEFINITIONS...............................................................................................2
SECTION 1.01. Definitions. ...........................................................................2
SECTION 1.02. Content of Certificates and Opinions. ................................14
SECTION 1.03. Article and Section Headings and References...................15
ARTICLEII THE BONDS..............................................................................................15
SECTION 2.01. Authorization of Bonds.......................................................15
SECTION 2.02. Terms of the Bonds............................................................16
SECTION 2.02.A. Interest Rates.....................................................................17
SECTION 2.03. Transfer of Bonds. .............................................................22
SECTION 2.04. Use of Securities Depository..............................................22
SECTION 2.05. Exchange of Bonds............................................................24
SECTION 2.06. Bond Register. ...................................................................24
SECTION 2.07. Form and Execution of Bonds............................................25
SECTION 2.08. Temporary Bonds. .............................................................25
SECTION 2.09. Bonds Mutilated, Lost, Destroyed or Stolen.......................25
SECTION 2.10. CUSIP Numbers. ...............................................................26
SECTION 2.11. Certain Contracts and Hedging Agreements......................26
ARTICLE III APPLICATION OF FUNDS.......................................................................27
SECTION 3.01. Application of Proceeds of the Bonds and Other
Amounts.............................................................................27
SECTION 3.02. Costs of Issuance Fund. ....................................................27
SECTION 3.03. Energy Independence Fund...............................................28
SECTION 3.04. Reserve Fund ....................................................................28
SECTION 3.05. Developer Claim Safekeeping Fund. .................................29
ARTICLE IV REDEMPTION AND TENDER OF BONDS..............................................29
SECTION 4.01. Establishment of Redemption Fund. ..................................29
SECTION 4.02. Mandatory Redemption From Net Proceeds......................30
SECTION 4.03. Optional Redemption of the Bonds. ...................................30
SECTION 4.04. Sinking Fund Redemption..................................................31
SECTION 4.05. Selection of Bonds for Redemption....................................32
SECTION 4.06. Notice of Redemption. .......................................................32
SECTION 4.07. Partial Redemption of Bonds. ............................................32
SECTION 4.08. Effect of Notice of Redemption. .........................................33
SECTION 4.09. Surplus...............................................................................33
SECTION 4.10. Establishment of Tender Fund...........................................34
SECTION 4.11. Mandatory Tender on Conversion Date. ............................34
SECTION 4.12. Mandatory Tenders Other Than on Conversion Date. .......34
SECTION 4.13. Mechanics of Mandatory Tender........................................35
SECTION 4.14. Option to Tender During Weekly Rate Period....................35
SECTION 4.15. Purchase of Bonds Delivered On a Tender Date...............36
SECTION 4.16. Remarketing of Bonds by Remarketing Agent. ..................37
SECTION 4.17. Delivery of Bonds...............................................................38
SECTION 4.18. Alternate Credit Facility......................................................39
SECTION 4.19. Restriction on Remarketing of Bonds to City......................39
SECTION 4.20. Book-Entry Tenders: Duties of Tender Agent with
Respect to Purchase of Bonds...........................................39
ARTICLE V REVENUES AND FUNDS.........................................................................40
SECTION 5.01. Establishment of Funds. ....................................................40
SECTION 5.02. Pledge and Assignment; Equal Security. ...........................40
SECTION 5.03. Deposit of Revenues..........................................................42
SECTION 5.04. Application of Moneys........................................................42
SECTION 5.05. Draws Under Credit Facility. ..............................................43
SECTION 5.06. Application of Reserve Fund in Event of Deficiency in
Lease Payment Account. ...................................................44
SECTION5.07. Surplus...............................................................................44
SECTION 5.08. Investment of Moneys in Funds and Accounts...................45
ARTICLE VI PARTICULAR COVENANTS ...................................................................46
SECTION 6.01. Punctual Payment..............................................................46
SECTION 6.02. Extension of Payment of Bonds.........................................47
SECTION 6.03. Against Encumbrances. .....................................................47
SECTION 6.04. Against Additional Indebtedness........................................47
SECTION 6.05. Power to Issue Bonds and Make Pledge and
Assignment. .......................................................................47
SECTION 6.06. Accounting Records and Financial Statements..................48
SECTION 6.07. Waiver of Laws. .................................................................48
SECTION 6.08. Waiver of Laws. ..............................................................:..48
SECTION 6.09. Further Assurances............................................................48
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES OF BONDOWNERS .............48
SECTION 7.01. Events of Default................................................................48
SECTION 7.02. Remedies on Default. ........................................................49
SECTION 7.03. Application of Revenues and Other Funds After
DefauIt. ..............................................................................49
SECTION 7.04. Trustee to Represent Bondowners. ...................................50
SECTION 7.05. Bondowners' Direction of Proceedings. .............................51
SECTION 7.06. Limitation on Bondowners' Right to Sue. ...........................51
SECTION 7.07. Absolute Obligation of Authority.........................................52
SECTION 7.08. Termination of Proceeding.................................................52
SECTION 7.09. Remedies Not Exclusive. ...................................................52
SECTION 7.10. No Waiver of Default..........................................................53
SECTION 7.11. Rights of Credit Entity. .......................................................53
ARTICLEVIII THE TRUSTEE ......................................................................................53
SECTION 8.01. Appointment, Duties and Immunities of Trustee. ...............53
SECTION 8.02. Merger or Consolidation.....................................................55
SECTION 8.03. Liability of Trustee..............................................................55
SECTION 8.04. Right of Trustee to Rely on Documents. ............................56
SECTION 8.05. Preservation and Inspection of Documents........................57
SECTION 8.06. Compensation and Indemnification....................................58
2
SECTION 8.07. Remarketing Agent. ...........................................................58
SECTION 8.08. Qualifications of Remarketing Agent..................................59
SECTION 8.09. Tender Agent. ....................................................................59
SECTION 8.10. Qualifications of Tender Agent...........................................60
SECTION 8.11. Co-Trustees. ......................................................................60
ARTICLE IX MODIFICATION OR AMENDMENT OF INDENTURE AND LEASE........61
SECTION 9.01. Amendments Permitted......................................................61
SECTION 9.02. Procedure for Amendment with Written Consent of
BondOwners. ....................................................................62
SECTION 9.03. Disqualified Bonds. ............................................................63
SECTION 9.04. Effect of Supplemental Agreement. ...................................63
SECTION 9.05. Endorsement or Replacement of Bonds Delivered
AfterAmendments. ............................................................63
SECTION 9.06. Amendatory Endorsement of Bonds. .................................64
SECTION 9.07. Consent of Credit Entity Required......................................64
ARTICLEX DEFEASANCE..........................................................................................64
SECTION 10.01. Discharge of Indenture.......................................................64
SECTION 10.02. Payment of Bonds After Discharge of Indenture................65
ARTICLEXI MISCELLANEOUS...................................................................................66
SECTION 11.01. Continuing Disclosure. .......................................................66
SECTION 11.02. Liability of Authority Limited to Revenues. .........................66
SECTION 11.03. Successor Is Deemed Included in All References to
Predecessor.......................................................................66
SECTION 11.04. Limitation of Rights to Parties and Bondowners.................66
SECTION 11.05. Waiver of Notice.................................................................67
SECTION 11.06. Destruction of Bonds..........................................................67
SECTION 11.07. Severability of Invalid Provisions........................................67
SECTION11.08. Notices...............................................................................67
SECTION 11.09. Evidence of Rights of Bondowners. ...................................69
SECTION 11.10. Disqualified Bonds. ............................................................69
SECTION 11.11. Money Held for Particular Bonds. ......................................70
SECTION 11.12. Funds and Accounts. .........................................................70
SECTION 11.13. Waiver of Personal Liability................................................70
SECTION 11.14. CUSIP Numbers. ...............................................................70
SECTION 11.15. Business Days. ..................................................................70
SECTION 11.16. Execution in Several Counterparts.....................................70
SECTION 11.17. Governing Law...................................................................71
EXHIBIT A — (FORM OF WEEKLY RATE BOND)......................................................A-1
EXHIBIT B — (FORM OF ANNUAL RATE BOND) ......................................................B-1
EXHIBIT C — (FORM OF FIXED RATE BOND) ..........................................................C-1
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THIS INDENTURE, made and entered into as of the 1St day of August,
2009 by and between the PALM DESERT FINANCING AUTHORITY, a public body,
corporate and politic, duly organized and existing under the laws of the State of
California (the "Authority"), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as
trustee, a national banking association organized and existing under the laws of the
United States and qualified to accept and administer the trusts hereby created (the
"Trustee");
WITNESSETH:
WHEREAS, the Authority is a joint powers authority duly organized and
existing under and pursuant to that certain Joint Exercise of Powers Agreement, as of
January 26, 1989, by and between the City of Palm Desert (the "City") and the Palm
Desert Redevelopment Agency (the "Agency"); and
WHEREAS, under Article 4 (commencing with Section 6584) of Chapter 5 of
Division 7 of Title 1 of the California Government Code (the "Law"), the Authority is
authorized to borrow money for the purpose of financing and refinancing public capital
improvements (as defined in the Law, including but not fimited to paragraph (v) of
Government Code Section 6546); and
WHEREAS, the City has requested that the Authority issue its Energy
Independence Program, Variable Rate Demand Lease Revenue Bonds, Series 2009
(Federally Taxable) (the "Bonds") in order to (i) reimburse the City for the entire amount
of its $2.5 million advance, authorized by Resolution No. 08-89 of the City Council of the
City, adopted on August 28, 2008, to initially fund the Energy Independence Fund; (ii)
finance of the acquisition and construction or installation of distributed generation
renewable energy sources and energy efficiency improvements on or in properties in
the City pursuant to the City's Energy Independence Program (collectively, the
"Project"); and (iii) pay certain costs related to the issuance of the Bonds; and
WHEREAS, the City will lease to the Authority its fee or leasehold interest
in certain real property and improvements thereon ( the "Leased Property"), pursuant to
a Site Lease, dated as of August 1, 2009 (the "Site Lease"); and
WHEREAS, the Authority, concurrently with the execution of the Site
Lease, will lease the Leased Property back to the City pursuant to a Lease Agreement,
dated as of August 1, 2009 (the "Lease"), in consideration for Base Rental payments
equal to the principal and interest coming due on the Bonds; and
WHEREAS, to provide liquidity for any Bonds tendered for purchase in
accordance with this Indenture and to support further the payment of principal of and
interest on the Bonds, the City will enter into that certain Reimbursement Agreement,
dated as August 1, 2009 (the "Reimbursement Agreement"), by and between the City
and Wells Fargo Bank, National Association (the "Credit Entity"), with respect to the
Credit Facility; and
WHEREAS, concurrently with the execution and delivery of this Indenture,
and as an integral part of the financing of the Project by reducing the variability of
interest rates and to reduce the cost of borrowing, the Authority, at the request of the
City, will enter into the Interest Rate Collar Agreement (as defined herein), under which
the Authority is obligated to make certain Scheduled Collar Payments (as defined
herein) and other amounts including, without limitation, Termination Payments (as
defined herein) (all of which amounts are hereinafter referred to as the "Collar
Payments"), based on a floor rate of interest at the rate specified therein; and
WHEREAS, in order to provide for the authentication and delivery of the
Bonds, to establish and declare the terms and conditions upon which the Bonds are to
be issued and secured and to secure the payment of the principal thereof and interest
and premium (if any) thereon, the Authority and the Trustee have duly authorized the
execution and delivery of this Indenture; and
WHEREAS, the Authority has determined that all acts and proceedings
required by law necessary to make the Bonds, when executed by the Authority,
authenticated and delivered by the Trustee and duly issued, the legally valid and
binding limited obligations of the Authority, and to constitute this indenture a valid and
binding agreement for the uses and purposes herein set forth in accordance with its
terms, have been done and taken;
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to
secure the payment of the principal of and the interest and premium, if any, on all the
Bonds at any time issued and Outstanding under this Indenture, according to their
tenor, and to secure the performance and observance of all the covenants and
conditions therein and herein set forth, and to secure the obligations of the City set forth
in the Reimbursement Agreement, and to declare the terms and conditions upon and
subject to which the Bonds are to be issued and received, and in consideration of the
premises and of the mutual covenants herein contained and of the purchase and
acceptance of the Bonds by the Owners thereof, and for other valuable considerations,
the receipt whereof is hereby acknowledged, the Authority does hereby covenant and
agree with the Trustee, for the benefit of the respective Owners from time to time of the
Bonds and the Credit Entity, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless the context otherwise requires, the terms
defined in this Section 1.01 shall, for all purposes of this Indenture, and of any indenture
supplemental hereto, and of any certificate, opinion or other document herein
mentioned, have the meanings herein specified:
"Additional Rental" means the amounts specified as such in Section 5.01(b) of
the Lease, as such amounts may be adjusted from time to time in accordance with the
terms thereof.
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"Agency" means the Palm Desert Redevelopment Agency, a public body,
corporate and public.
"Alternate Credit Facility" means a credit facility delivered to the Trustee pursuant
to Section 4.18 hereof, including, but not limited to, an irrevocable letter of credit, an
investment contract, a guaranty, a bond insurance policy, a surety bond or other
financial arrangement which secures the payment of the principal of and interest on the
Bonds when due, or such an instrument, together with a separate instrument such as an
irrevocable letter of credit, a guaranty, a committed line of credit or an investment
contract, issued by a financial institution pursuant to Section 4.18 hereof which provides
a method of purchasing Bonds tendered for purchase on a Tender Date.
"Annual Rate Conversion Date" means the date on which the rate of interest
borne by the Bonds is converted to the Annual Rate.
"Annual Rate" means the interest rate with respect to the Annual Rate Period.
"Annual Rate Period" means the period commencing on the Annual Rate
Conversion Date to and including the day occurring immediately prior to the first
anniversary of the Annual Rate Conversation Date.
"Assignment Agreement" means that certain Assignment Agreement dated as of
August 1, 2009 by and between the Authority and the Trustee, as described in Section
5.02(d), as the same may be amended, supplemented or otherwise modified from time
to time.
"Authority" means the Palm Desert Financing Authority, established pursuant to
the laws of the State of California, organized and created pursuant to the terms and
conditions of the Joint Powers Agreement.
"Authorized Denominations" shall mean (i) with respect to the Bonds bearing
interest at the Weekly Rate, $100,000 or any integral multiple of $5,000 in excess
thereof and (ii) with respect to the Bonds bearing interest at the Annual Rate or Fixed
Rate, $5,000 or any integral multiple of $5,000.
"Authorized Investments" means, if and to the extent permitted by law:
(1) Direct obligations of the United States of America (including
obligations issued or held in book-entry form on the books of the Department of
the Treasury of the United States of America) or obligations the timely payment
of the principal of and interest on which are fully guaranteed by the United States
of America, including instruments evidencing a direct ownership interest in
securities described in this clause such as Stripped Treasury Coupons rated or
assessed in the highest Rating Category by S&P and Moody's and held by a
custodian for safekeeping on behalf of holders of such securities.
(2) Bonds or notes which are exempt from federal income taxes and
for the payment of which cash or obligations described in clause (1) of this
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definition in an amount sufficient to pay the principal of, premium, if any, and
interest on when due have been irrevocably deposited with a trustee or other
fiscal depositary and which are rated in the highest Rating Category by S&P and
Moody's.
(3) Obligations, debentures, notes or other evidence of indebtedness
issued or guaranteed by any of the following: Federal Home Loan Bank System,
Government National Mortgage Association, Farmer's Home Administration,
Federal Home Loan Mortgage Corporation or Federal Housing Administration;
provided that with respect to the funds and accounts established under this
Indenture, such obligations shall at no time exceed an amount equal to ten
percent (10%) of the aggregate principal amount of the Bonds Outstanding.
(4) Deposit accounts, certificates of deposit or savings accounts (i) fully
insured by the Federal Deposit Insurance Corporation or (ii) with banks whose
short term obligations are rated no lower than A-1 by S&P and P-1 by Moody's
including those of the Trustee and its affiliates.
(5) Federal funds or banker's acceptances with a maximum term of
one year of any bank that has an unsecured, uninsured and unguaranteed
obligation rating of "Prime-1" or "A3" by Moody's and "A-I" or "A" or better by S&P
(including the Trustee).
(6) Repurchase obligations with a term not exceeding 30 days
pursuant to a written agreement between the Trustee and either a primary dealer
on the Federal Reserve reporting dealer list which falls under the jurisdiction of
the SIPC or a federally chartered commercial bank whose long-term debt
obligations are rated A or better by S&P and Moody's, with respect to any
security described in clause (1); provided that the securities which are the subject
of such repurchase obligation (i) must be free and clear of all liens, (ii) in the case
of a SIPC dealer, were not acquired pursuant to a repurchase or reverse
repurchase agreement, (iii) must be deposited with the Trustee and maintained
through weekly market valuations in an amount equal to 104% of the invested
funds plus accrued interest; and further provided that the Trustee must have a
valid first perfected security interest in such securities.
(7) Taxable government money market portfolios that have a rating by
S&P of Am-G or Am or better and rated in one of the three highest Rating
Categories of Moody's consisting of securities issued or guaranteed as to
payment of principal and interest by the full faith and credit of the United States,
subject to a maximum permissible limit equal to six months of principal and
interest on the Bonds including portfolios of the Trustee and its affiliates.
(8) Tax-exempt government money market portfolios that have a rating
by S&P of Am-G or Am or better and rated in one of the three highest Rating
Categories of Moody's consisting of securities which are rated in the highest
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Rating Categories of S&P and Moody's subject to a maximum permissible limit
equal to six months of principal and interest on the Bonds.
(9) Money market funds registered under the Investment Company Act
of 1940, the shares in which are registered under the Securities Act of 1933 and
that have a rating by S&P of AAAm-G or AAAm and rated in one of the two
highest Rating Categories of Moody's, including those managed or advised by
the Trustee or its affiliates.
(10) The Local Agency Investment Fund of the State, created pursuant
to Section 16429.1 of the California Government Code, to the extent the Trustee
is authorized to register such investment in its name.
(11) Investment agreements, including guaranteed investment contracts
("GICs") forward purchase agreements and reserve fund put agreements with
banks or other financial institutions rated, or guaranteed by institutions rated, or
with senior unsecured debt rated, by S&P and Moody's, in one of the two highest
Rating Categories assigned by such agencies and approved by the Credit Entity.
(12) Any other investments for which each rating agency then rating the
Bonds confirms that such investment will not adversely affect its ratings of the
Bonds and approved by the Credit Entity.
"Authorized Representative" means the Chief Administrative Officer, Treasurer,
or any other person designated as an Authorized Representative by a Written
Certificate of the Authority signed by its President and filed with the Authority and the
Trustee.
"Available Moneys" means (a) with respect to any Bond Payment Date occurring
during the term of a Credit Facility, moneys (other than moneys received from draws
under the Credit Facility or remarketing proceeds) which have been on deposit with and
pursuant to written direction of the Authority and segregated by the Trustee, during or
prior to which no Event of Bankruptcy shall have occurred, as evidenced by a certificate
of the Authority to the Trustee, upon which the Trustee may conclusively rely,
(b) moneys received from draws under the Credit Facility and remarketing proceeds and
(c) proceeds with respect to the refunding of any of the Bonds.
"Base Rental" means the amounts specified as such in Section 5.01(a) of the
Lease, as such amounts may be adjusted from time to time in accordance with the
terms thereof.
"Bond Counsel" means an attorney or firm of attorneys of recognized national
standing in the field of municipal finance selected by the Authority.
"Bond Payment Date" means (a) with respect to Bonds bearing interest at the
Weekly Rate, the first Business Day of each month commencing October 1, 2009 to and
including the Annual Rate Conversion Date or Fixed Rate Conversion Date, (b) with
respect to Bonds bearing interest at the Annual Rate or after the Fixed Rate Conversion
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Date, each March 1 and September 1 commencing on the first March 1 or September 1
which is at least 75 days after the Annual Rate Conversion Date or the Fixed Rate
Conversion Date, as applicable, and (c) with respect to Credit Facility Bonds, the dates
set for payment of principal of and interest on Credit Facility Bonds under the
Reimbursement Agreement.
"Bond Year" means each twelve-month period extending from September 2 in
one calendar year to September 1 of the succeeding calendar year, both dates
inclusive, except that the first Bond Year shall extend from the Closing Date to
September 1, 2010.
"Bonds" means the Palm Desert Financing Authority Energy Independence
Program, Variable Rate Demand Lease Revenue Bonds, Series 2009 (Federally
Taxable), authorized by, and at any time Outstanding pursuant to this Indenture.
"Business Day" means any day other than a Saturday, Sunday, or a day on
which banking institutions or governmental offices in the State or the office of the Credit
Entity where draws on the Credit Facility are to be presented are authorized or required
to close, or a day on which the Federal Reserve System is closed.
"Certificate," "Statement," "Request," "Requisition" or "Order" means,
respectively, a written certificate, statement, request, requisition or order in its name by,
with respect to the City, the City Manager, or by any other officer of the City duly
authorized by the City for that purpose, and, with respect to the Authority, the
Authorized Representative. Any such instrument and supporting opinions or
representation, and the two or more so combined shall be read and construed as a
single instrument. If and to the extent required by Section 1.02 hereof, each such
instrument shall be the statement provided for in Section 1.02 hereof.
"City" means the City of Palm Desert, California.
"Closing Date" means August 31, 2009, the date on which the Bonds are
delivered by the Authority to the original purchaser thereof.
"Collar Payment Account" means the account by that name in the Debt Service
Fund established in accordance with Section 5.01(a) hereof.
"Collar Payments" means the payments and amounts, including without limitation
Scheduled Collar Payments and Termination Payments, the Authority is obligated to
make under the Interest Rate Collar Agreement and that constitute a component of the
City's Base Rental payments to the Authority in accordance with Section 5.01 of the
Lease.
"Collar Provider" means (i) Wells Fargo Bank, National Association, if the Interest
Rate Collar Agreement described in clause (i) of the "Interest Rate Collar Agreement"
definition herein is effective, or (ii) the counterparty to any other Interest Collar
Agreement then in effect.
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"Collar Reimbursements" means the payments payable by the Collar Provider to
the Authority, if any, in connection with each scheduled payment date under the Interest
Rate Collar Agreement.
"Continuing Disclosure Agreement" means any continuing disclosure agreement
or continuing disclosure certificate by the City relating to the Bonds, as originally
executed and as it may be amended from time to time in accordance with the terms
thereof.
"Conversion Date" means the effective date of a conversion of the Bonds from
one Interest Rate Mode to another Interest Rate Mode.
"Costs of Issuance" means all items of expense directly or indirectly payable by
or reimbursable to the Authority or the City, relating to the authorization, issuance, sale
and delivery of the Bonds, including, but not limited to, printing expenses, title insurance
policy premiums with respect to the Leased Property, rating agency fees, any premium
or other fees with respect to insurance provided in connection with the issuance of the
Bonds, including but not limited to, municipal bond insurance, rental interruption
insurance and other types of insurance as may be required by the Lease, filing and
recording fees, initial fees and charges and the first annual administrative fee of the
Trustee, fees and costs associated with obtaining any Credit Facitity obtained in
connection with the issuance of the Bonds (including, without limitation, legal fees and
other costs and expenses), fees, charges and disbursements of attorneys, financial
advisors, accounting firms, consultants and other professionals, fees and charges for
preparation, execution and safekeeping of the Bonds, and any other costs, charges or
fees in connection with the original issuance of the Bonds.
"Costs of Issuance Fund" means the fund so designated and established
pursuant to Section 3.02 hereof.
"Credit Entity" means Wells Fargo Bank, National Association, as the issuer of
the Credit Facility being delivered on the Closing Date with respect to the Bonds and
thereafter, the issuer of any Alternate Credit Facility delivered hereunder in effect from
time to time. All references and requirements herein with respect to notices or other
communications to, or consents from, the Credit Entity shall include the providers of the
Credit Facility.
"Credit Facility" means an irrevocable letter of credit, an investment contract, a
guaranty, a bond insurance policy, a surety bond or other financial arrangement which
secures the payment of the principal and interest on the Bonds when due, or such an
instrument, together with a separate instrument, such as an irrevocable letter of credit, a
guaranty, a committed line of credit, an investment contract or a standby purchase
agreement, issued by a financial institution, which provides a method of purchasing
Bonds tendered for purchase on a Tender Date, including an Alternate Credit Facility,
together with all amendments or extensions of the foregoing.
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"Credit Facility Account" means the account by that name in the Debt Service
Fund established in accordance with Section 5.01(a) hereof.
"Credit Facility Bond" means any Bank Bond, as defined in the Reimbursement
Agreement.
"Credit Facility Prepayment Account" means the account by that name in the
Redemption Fund established in accordance with Section 4.01 hereof.
"Debt Service Fund" means the fund so designated and established pursuant to
Section 5.01 hereof.
"Developer Claim Safekeeping Fund" means the fund so designated and
established pursuant to Section 3.05 hereof.
"DTC" means The Depository Trust Company, New York, New York, and its
successors and assigns.
"Eligible Account" means an account complying with S&P's Eligible Accounts
criteria, which is an account that is either (i) an account maintained with a federal or
state-chartered depository institution or trust company that has a short-term debt rating
of at least "A-2" (or if no short-term rating, a long-term debt rating of "BBB+"), or (ii) an
account maintained with the corporate trust department of a federal depository
institution or state chartered depository institution, which, in either case, has corporate
trust powers and is acting in its fiduciary capacity.
"Energy Independence Fund" means the special trust fund designated as the
"Energy Independence Fund" heretofore established by the City Council of the City
pursuant to Resolution No. 08-89, adopted on August 28, 2008, and held and
maintained by the City for the purpose of funding the City's Energy Independence
Program.
"Energy Independence Program" means the City of Palm Desert Energy
Independence Program heretofore established pursuant to Chapter 29 of Part 3 of
Division 7 of the California Streets and Highways Code, commencing with Section
5898.10, to finance the Project through contractual assessments.
"Event of Default" means any of the events specified in Section 7.01 hereof.
"Fiscal Year" means the year beginning on July 1 of each year and ending on the
next succeeding June 30, or any other twelve-month period hereinafter selected and
designated as the official fiscal year period of the Authority.
"Fixed Rate" means the fixed interest rate or rates applicable to the Bonds
established in accordance with this Indenture.
"Fixed Rate Conversion Date" means the date on which the rate of interest borne
by the Bonds is converted to the Fixed Rate.
8
"Hedging Agreement" shall have the meaning ascribed to such term in Section
2.11 of this Indenture.
"Indenture" means this Indenture, dated as of August 1, 2009, by and between
the Authority and the Trustee.
"Information Services" means Financial Information, Inc.'s "Daily Called Special
Service," 30 Montgomery Street, 10th Floor, Jersey City, New Jersey 07302, Attention:
Editor; MergendFlS, Inc., 5250 77 Center Drive, Suite 150, Charlotte, North Carolina
28217, Attention: Municipal News Reports; and Kenny S&P, 55 Water Street, 45th
Floor, New York, New York 10041, Attention: Notification Department; and, in
accordance with then current guidelines of the Securities and Exchange Commission,
such other addresses and/or such other information services providing information with
respect to called bonds as the Authority may designate in a Written Certificate of the
Authority delivered to the Trustee.
"Interest Rate Collar AgreemenY' means (i) collectively, the ISDA Master
Agreement (including the Schedule thereto) and Confirmation, each dated as of August
31, 2009, between the Collar Provider and the Authority, or (ii) any other agreement
between the Authority and a counterparty, which establishes an upper limit and a lower
limit on the interest rate payable by the Authority with respect to the portion of the
Bonds subject to such agreement.
"Interest Rate Mode" means a Weekly Rate, an Annual Rate, or a Fixed Rate.
"Joint Powers Agreement" means that certain Joint Exercise of Powers
Agreement, dated as of January 26, 1989, by and between the City and the Agency
creating the Authority for the purposes, among other things, of assisting in the financing
of Public Capital Improvements, as such term is defined in Section 6585(g) of the
California Government Code, together with any amendments thereof and supplements
thereto.
"Law" means Article 4 (commencing with Section 6584) of Chapter 5 of Division 7
of Title 1 of the California Government Code.
"Lease" means that certain Lease Agreement dated as of August 1, 2009 by and
between the Authority, as lessor, and the City, as lessee.
"Lease Payment Account" means the account by that name in the Debt Service
Fund established in accordance with Section 5.01(a) hereof.
"Lease Payment Date" means the 25th day of the month preceding each Bond
Payment Date (or if the 25th day of the month is not a Business Day, on the next
succeeding Business Day).
"Lease Prepayment Account" means the account by that name in the
Redemption Fund established and held by the Trustee pursuant to Sections 4.01 and
5.01(b) hereof.
9
"Leased Property" means the Real Property and the commercial office complex
and all other improvements constructed on the Real Property.
"Liquidity Account" means the account by that name in the Tender Fund
established in accordance with Section 4.10 hereof.
"Mandatory Tender Date" means (1) the Bond Payment Date on or prior to the
date at least five days prior to the date on which the Credit Facility is scheduled to
expire or terminate in accordance with its respective terms and the Trustee has not
received notice at least 40 days prior to such Bond Payment Date that the term of such
Credit Facility has been extended or an Alternate Credit Facility will be provided, (2) on
any Annual Rate Conversion Date or Weekly Rate Conversion Date, (3) the first
Business Day to occur on or after the seventh day following receipt by the Trustee of
notice from the Credit Entity of the occurrence of an event of default under the
Reimbursement Agreement, or that the Credit Entity will not reinstate the interest
portion of the Credit Facility as provided in Section 4.12(c) hereof, and in each case
directing the mandatory tender of the Bonds, (4) the Fixed Rate Conversion Date, or (5)
the effective date of any Alternate Credit Facility.
"Maximum Rate" means with respect to the Bonds other than Credit Facility
Bonds, (i) 12% per annum calculated on the basis of a 365-day year or 366-day year,
as applicable, for actual days elapsed, during the Weekly Rate Period, (ii) 12% per
annum calculated on the basis of a 360-day year of twelve 30-day months during the
Annual Rate Period and on and after the Fixed Rate Conversion Date, and (iii) with
respect to Credit Facility Bonds, the maximum rate of interest permitted by law.
"Moody's" means Moody's Investors Service or any successor corporation
thereto.
"Net Proceeds" means any insurance proceeds or condemnation award paid with
respect to the Leased Properry remaining after payment therefrom of all expenses
incurred in the collection thereof.
"Nominee" means the nominee of the Depository, which may be the Depository,
or any nominee substituted by the Depository pursuant to Section 2.04 hereof.
"Optional Tender Date" means the date designated by an Owner to the Tender
Agent on which such Owner will tender its Bond in accordance with Section 4.14 hereof.
"Outstanding," when used as of any particular time with reference to the Bonds,
means (subject to the provisions of Section 11.10 hereof) all Bonds theretofore issued
by the Authority except:
(1) Bonds theretofore canceled by the Trustee or surrendered to the
Trustee for cancellation;
(2) Bonds for the payment or redemption of which moneys or securities
in the necessary amount (as provided in Section 10.01 hereof) shall have been
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theretofore deposited in trust (whether upon or prior to the maturity or the
redemption date of such Bonds), provided that, if such Bonds are to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given as provided in this Indenture;
(3) Untendered Bonds; and
(4) Bonds in lieu of, or in substitution for, other Bonds which shall have
been authorized, executed, issued and delivered by the Authority pursuant to this
Indenture.
"Owner" or "Bondowner" means the Person or Persons whose name appears on
the registration books maintained by the Trustee as the registered owner of a Bond or
Bonds.
"Participant" means those broker-dealers, banks and other financial institutions
from time to time for which the Depository holds Bonds as a securities depository.
"Person" means an individual, corporation, firm, association, partnership, trust, or
other legal entity or group of entities, including a governmental entity or any agency or
political subdivision thereof.
"Prepayment" means any payment made by the City pursuant to Section 5.05 of
the Lease as a prepayment of Base Rental payments.
"Principal Office" means the principal corporate trust office of the Trustee in Los
Angeles, California, or the principal office of the Tender Agent in Los Angeles,
California, or the principal corporate trust office of any successor Trustee or Tender
Agent.
"Qualified Reserve Fund Credit Instrument" means an irrevocable standby or
direct-pay letter of credit or surety bond issued by a commercial bank or insurance
company and deposited with the Trustee pursuant to Section 3.04(b), provided that all
of the following requirements are met: (i) at all times during the term of such letter of
credit or surety bond, the long-term credit rating of such bank is within the highest
Rating Category of Moody's and S&P, or the claims paying ability of such insurance
company is rated within the highest Rating Category of A.M. Best & Company and S&P;
(ii) such letter of credit or surety bond has a term which ends no earlier than the last
Bond Payment Date of the series of Bonds to which the Reserve Requirement applies;
(iii) such letter of credit or surety bond has a stated amount at least equal to the portion
of the Reserve Requirement with respect to which funds are proposed to be released
pursuant to Section 3.04(b); and (iv) the Trustee is authorized pursuant to the terms of
such letter of credit or surety bond to draw thereunder amounts necessary to carry out
the purposes specified in Section 5.06, including the replenishment of the Lease
Payment Account.
11
"Rating Category" means one of the generai rating categories of S&P or
Moody's, as the case may be, without regard to any refinement or graduation of such
rating category by numerical modifier or otherwise.
"Rating Confirmation" means written evidence from S&P, or at any time that S&P
is no �onger maintaining a rating on the Bonds, any other nationally recognized rating
agency then providing or maintaining a rating on the Bonds at the request of the
Authority, to the effect that, following the event that requires the Rating Confirmation,
the then current rating of such Bonds shall not be lowered or withdrawn solely as a
result of the occurrence of such event.
"Real Property" means that certain real property more particularly described in
Exhibit A to the Lease.
"Record Date" means, during the period during which the Bonds accrue interest
at the Fixed Rate or the Annual Rate, the close of business on the fifteenth day of the
month immediately preceding each Bond Payment Date, and, during a Weekly Rate
Period, the close of business on the Business Day immediately preceding the Bond
Payment Date.
"Redemption Fund" means the fund so designated and established pursuant to
Section 5.01 hereof.
"Reimbursement Agreement" means the agreement or agreements entered into
between the City and the Credit Entity setting forth the terms and conditions relating to
the issuance of the Credit Facility and the City's obligations to repay the Credit Entity in
the event moneys are drawn under the Credit Facility.
"Remarketing Agent" means Wells Fargo Brokerage Services, LLC, or any
successor entity or entities appointed by the Authority to perform the duties of the
Remarketing Agent hereunder.
"Remarketing Agreement" means the Remarketing Agreement, dated as of
August 1, 2009, between the Authority and the Remarketing Agent, and any other
agreement relating to the services of the Remarketing Agent in effect at any time.
"Remarketing Proceeds Account" means the account by that name in the Tender
Fund established in accordance with Section 4.10 hereof.
"Reserve Fund" means the fund so designated and established pursuant to
Section 3.04 hereof.
"Reserve Requirement" means, as of the date of calculation thereof, (a) $0,
during any period when the Bonds bear interest at a Weekly Rate or an Annual Rate,
and (b) during any period when the Bonds bear interest at the Fixed Rate, the least of
(i) the maximum aggregate annual Base Rental payments payable during the then-
current or any remaining Bond Year during which the Bonds are to remain Outstanding
by their terms, or (ii) 125% of the average annual aggregate Base Rental payments
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payable for the then-current and any remaining Bond Years during which the Bonds are
to remain Outstanding by their terms. Following the Fixed Rate Conversion Date and at
the instruction of the Authority, the Trustee shall recalculate the Reserve Requirement
under clauses (i) or (ii) above, whichever is less, and shall transfer any amounts in
excess of the Reserve Requirement in accordance with Section 5.06 hereof.
"Revenues" means all amounts received by the Authority as lessor under the
Lease, including, without limiting the generality of the foregoing, scheduled Base Rental
payments, prepayments, and insurance and condemnation proceeds, and all interest,
profits or other income derived from the investment of amounts in any fund or account
established under this Indenture.
"Scheduled Collar Payments" means the amount payable by the Authority, if any,
in connection with each scheduled payment date (other than Termination Payments)
under the Interest Rate Collar Agreement.
"Securities Depositories" means The Depository Trust Company, 55 Water
Street, 50th Floor, New York, N.Y. 10041-0099 Attn. Call Notification Department, Fax
(212) 855-7232, and, in accordance with then current guidelines of the Securities and
Exchange Commission, such other addresses and/or such other securities depositories
as the Authority may designate in a Written Certificate of the Authority delivered to the
Trustee.
"Serial Bonds" means the Bonds falling due by their terms in specified years, for
which no mandatory sinking account payments are provided.
"Special Record Date" means the date established by the Trustee pursuant to
Section 2.02 hereof.
"Supplemental Indenture" means any indenture hereafter duly authorized and
entered into between the Authority and the Trustee, supplementing, modifying or
amending this Indenture; but only if and to the extent that such supplemental indenture
is specifically authorized hereunder.
"S&P" means Standard & Poor's or any successor corporation thereto.
"State" means the State of California.
"Tender Agent" means Wells Fargo Bank, National Association, or any successor
entity appointed by the Authority to perform the duties of the Tender Agent hereunder,
which duties shall include those of acting as a co-transfer agent, co-paying agent for
payment of principal and co-registrar hereunder.
"Tender Date" means a Mandatory Tender Date or an Optional Tender Date.
"Tender Fund" means the fund by that name established and held by the Tender
Agent pursuant to Section 4.10 hereof.
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"Term Bonds" means the Bonds payable at or before their specified maturity date
or dates from mandatory sinking account payments established for that purpose and
calculated to retire such Bonds on or before their specified maturity date or dates.
"Termination Payments" means, with respect to the Interest Rate Collar
Agreement, the amount payable by the Authority as a result of the termination of the
Interest Rate Collar Agreement prior to its scheduled termination date.
"Trustee" means Wells Fargo Bank, National Association, or any successor
trustee appointed pursuant to the provisions of Section 8.01 hereof.
"Untendered Bonds" means Bonds for which a Tender Date has become
effective and for which the purchase price thereof has been irrevocably deposited in
trust with the Tender Agent but for which the Tender Agent has not yet received the
Bonds.
"Weekly Rate" means the interest rate with respect to the Weekly Rate Period.
"Weekly Rate Conversion Date" means any date (which must be a Business
Day) on which the interest rate borne by the Bonds is converted to the Weekly Rate.
"Weekly Rate Period" means the period from each Thursday to and including the
following Wednesday during which Bonds bear interest at a Weekly Rate.
"Written Certificate," "Written Request" and "Written Requisition" of the Authority
means, respectively, a written certificate, request or requisition signed in the name or
the Authority by its Authorized Representative. Any such instrument and supporting
opinions or representations, if any, may , but need not, be combined in a single
instrument with any other instrument, opinion or representation, and the two or more so
combined shall be read and construed as a single instrument.
SECTION 1.02. Content of Certificates and Opinions. Every certificate or
opinion provided for in this Indenture with respect to compliance with any provision
hereof, excluding the certificate of destruction pursuant to Section 11.06 hereof, shall
include (1) a statement that the individual making or giving such certificate or opinion
has read such provisions and the definitions herein relating thereto; (2) a brief statement
as to the nature and scope of the examination or investigation upon which the certificate
or opinion is based; (3) a statement that, in the opinion of such individual, such
individual has made or caused to be made such examination or investigation as is
necessary to enable such individual to express an informed opinion with respect to the
subject matter referred to in the instrument to which such individual's signature is
affixed; and (4) a statement as to whether, in the opinion of such individual, such
provision has been complied with.
Any such certificate or opinion made or given by an officer of the Authority or the
City may be based, insofar as it relates to a legal or accounting matter, upon a
certificate or opinion of or representation by Bond Counsel or a consultant, unless such
officer knows, or in the exercise of reasonable care should have known, that the
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certificate, opinion or representation with respect to the matters upon which such
certificate or statement may be based, as aforesaid, is erroneous. Any such certificate
or opinion made or given by Bond Counsel or a consultant may be based, insofar as it
relates to factual matters (with respect to which information is in the possession of the
Authority or the City) upon a certificate or opinion of or representation by an officer of
the Authority or the City, as the case may be, unless such Bond Counsel or consultant
knows, or in the exercise of reasonable care, should have known, that the certificate or
opinion or representation with respect to the matters upon which such individual's
certificate of said opinion or representation may be based is erroneous. The same
officer of the Authority or the City, or the same Bond Counsel or consultant, as the case
may be, need not certify to all of the matters required to be certified under any provision
of this Indenture, but different officers, Bond Counsel or consultants may certify to
different matters.
SECTION 1.03. Article and Section Headings and References. The
headings or titles of the several articles and sections hereof, and any table of contents
appended to copies hereof, shall be solely for convenience of reference and shall not
affect the meaning, construction or effect of this Indenture. All references herein to
"Articles," "Sections" and other subdivisions are to the corresponding articles, sections
or subdivisions of this Indenture; the words "herein," "hereof," "hereby," "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any particular
article, section or subdivision hereof; and words of the masculine gender shall mean
and include words of the feminine and neuter genders.
ARTICLE II
THE BONDS
SECTION 2.01. Authorization of Bonds. The Authority has determined that
all acts, conditions and things required by law to exist, happen or be performed
precedent to and in connection with the issuance of the Bonds do exist, have happened
and have been performed in due time, form and manner as required by law, and the
Authority is duly authorized, pursuant to each and every requirement of law, to issue the
Bonds in the manner and form provided in this Indenture.
The Bonds will be issued initially in the aggregate principal amount of $5,225,000
and will be designated the "Palm Desert Financing Authority Energy Independence
Program, Variable Rate Demand Lease Revenue Bonds, Series 2009 (Federally
Taxable)."
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SECTION 2.02. Terms of the Bonds. The Bonds shall be issued in fully
registered form without coupons in Authorized Denominations. The Bonds shall be
initially registered in the name of Cede & Co., as nominee of DTC, and shall be
evidenced by one Bond for each of the maturities in the principal amounts set forth
below, and DTC is hereby appointed depository for the Bonds, and registered
ownership may not thereafter be transferred except as set forth in Section 2.03. The
Bonds shall be dated the date of their initial delivery, and shall bear interest as set forth
in Section 2.02A hereof until their maturity payable on each Bond Payment Date and
shall mature on September 1, 2029.
Each Bond shall bear interest from the Bond Payment Date next preceding the
date on which it is authenticated unless it is (a) authenticated after a Record Date and
on or before the next Bond Payment Date, in which event it shall bear interest from such
Bond Payment Date, or (b) authenticated on or before the first Record Date, in which
event it shall bear interest from the date of its initial delivery; provided, however, that if
at the time of authentication of any Bond interest is in default, such Bond shall bear
interest from the date to which interest has been paid. The Bonds shall bear interest at
the Weekly Rate determined in accordance with Section 2.02A untit an Annual Rate
Conversion Date or the Fixed Rate Conversion Date, and on and after such Annual
Rate Conversion Date or the Fixed Rate Conversion Date, at the Annual Rate or the
Fixed Rate, respectively. The Bonds shall be numbered as the Trustee shall determine.
Payment of interest with respect to any Bond on any Bond Payment Date or
redemption date shall be made to the person appearing on the Registration Books of
the Trustee as the Owner thereof as of the Record Date immediately preceding such
Bond Payment Date or redemption date, as the case may be, such interest to be paid
by check mailed by first class mail on the Bond Payment Date to such Owner at his
address as it appears on such registration books. Payments of defaulted interest shall
be paid by check of the Trustee mailed to the registered Owners as of a special record
date (the "Special Record Date") to be fixed by the Trustee in its sole discretion, notice
of which shall be given to the Owners not less than 10 days prior to such Special
Record Date. Payment of interest represented by the Bonds may, at the option of any
Owner of at least $1,000,000 principal amount of Bonds (such option to be exercised by
written request of such Owner to the Trustee), be transmitted by wire transfer to such
Owner to the bank account number in the United States filed with the Trustee prior to
the Record Date for a Bond Payment Date.
The principal payable upon maturity or prior redemption with respect to the
Bonds shall be payable upon surrender prior to the Fixed Rate Conversion Date at the
Principal Office of the Trustee or the Principal Office of Tender Agent, and thereafter at
the Principal Office of the Trustee, with such principal to be paid by check mailed by the
Trustee on the Bond Payment Date or redemption date by first class mail to each
Owner at his address as it appears on the registration books; provided, however,
payment of such principal shall be made by wire transfer to an Owner of Bonds who has
exercised its option for payment by wire transfer pursuant to this Section 2.02. Said
amounts shall be payable in lawful money of the United States of America. The Trustee
is hereby authorized to pay or redeem the Bonds when duly presented for payment at
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maturity or on redemption and to cancel all Bonds upon payment thereof; provided,
however, that no such cancellation of Bonds shall affect the obligations of the Credit
Entity arising under the Credit Facility; provided that the Credit Facility is subject to
reduction in accordance with its terms in connection with the payment at maturity or
earlier redemption of the Bonds.
Credit Facility Bonds shall bear interest and be payable as set forth in the
Reimbursement Agreement.
SECTION 2.02.A. Interest Rates.
(a) Interest Rate Determination Methods.
(1) Weekl�Rate. The Bonds will be issued on the Closing Date
initially bearing interest at a Weekly Rate. In addition, the rate of interest on the
Bonds may, at the option of the Authority, be established at a Weekly Rate on
any Bond Payment Date during an Annual Rate Period. So long as the Bonds
bear interest at a Weekly Rate, the Remarketing Agent will set the Weekly Rate
on Wednesday of each calendar week. The Remarketing Agent will give notice
in writing to the Trustee and the Credit Entity of each Weekly Rate as soon as
possible following the determination of such rate. Each Weekly Rate will be the
rate per annum equal to the minimum rate necessary (as determined by the
Remarketing Agent) for the Remarketing Agent to sell the Bonds on the date the
Weekly Rate is set at 100% of the principal amount thereof plus accrued interest;
provided, however, that in no event shall the interest rate borne by the Bonds
(other than Credit Facility Bonds) exceed the Maximum Rate. Each Weekly Rate
will be effective Thursday through the next succeeding Wednesday (or through
the end of the period in which the Bonds bear interest at a Weekly Rate,
whichever first occurs).
If for any reason the Remarketing Agent does not set a Weekly Rate on
the Wednesday of a calendar week, then the Weekly Rate for that period will be
the Weekly Rate set for the immediately preceding Thursday through
Wednesday period.
Notice and Procedure for Conversion from Annual Rate to Weeklv
Rate. The Authority shall deliver a written notice to the Trustee, the Tender
Agent, the Remarketing Agent and the Credit Entity specifying the Weekly Rate
Conversion Date upon which the interest rate borne by the Bonds shall be
converted from an Annual Rate to a Weekly Rate, which shall be not less than
thirty (30) days after notice is received by the parties.
Such notice shall be accompanied by a form of the notice to be
sent by the Trustee to the Owners as provided in the following paragraph and an
opinion of Bond Counsel to the effect that such conversion to the Weekly Rate
would not, in and of itself, adversely affect the tax-exempt status of the interest
on the Bonds.
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The Trustee shall give notice to the registered owners of the bonds,
in the same manner that notices of redemption are given, not less than fifteen
(15) days before the Weekly Rate Conversion Date specifying the Weekly Rate
Conversion Date; that the interest rate on the Bonds will be established at a
Weekly Rate on the Weekly Rate Conversion Date, that all outstanding Bonds
not tendered for purchase at least seven (7) days before the Weekly Rate
Conversion Date will be deemed to have been so tendered and shall, unless
remarketed, be purchased on the Weekly Rate Conversion Date at a price equal
to the principal amount thereof plus interest accrued on such date; that all Bonds
must be surrendered to the Tender Agent for purchase not later than 11:00 a.m.,
New York time, on the Weekly Rate Conversion Date; and that if the opinion of
Bond Counsel required pursuant to the foregoing paragraph is rescinded, the
interest rate will not be converted to the Weekly Rate.
In connection with any proposed conversion from the Annual Rate
to the Weekly Rate, the Authority shall (A) prepare a new official statement,
remarketing memorandum or similar offering document and provide as many
copies of such offering document as the Remarketing Agent may reasonably
request to remarket such Bonds, and (B) obtain a Rating Confirmation to the
effect that the ratings on the Bonds shall not be lowered or withdrawn as the
result of such change to the Weekly Rate.
(2) Annual Rate. The rate of interest on the Bonds may, at the
option of the Authority, be established at an Annual Rate on any Bond Payment
Date during a Weekly Rate Period. The Remarketing Agent shall set the Annual
Rate on a Business Day (the "Determination Date") occurring no fewer than two
nor more than 15 Business Days before the Annual Rate Conversion Date. The
Annual Rate shall be the rate determined by the Remarketing Agent to be the
rate per annum equal to the minimum interest rate which would be necessary for
the Remarketing Agent to sell the Bonds on the Determination Date at 100% of
the principal amount thereof plus accrued interest; provided, however, that in no
event shall the interest rate borne by the Bonds on and after the Annual Rate
Conversion Date exceed the Maximum Rate.
In connection with any conversion to an Annual Rate, the notice
and procedural requirements set forth in paragraphs (b) and (c) of Section 2.02.A
shall apply.
(3) Fixed Rate. The rate of interest on the Bonds may, at the
option of the Authority, be established at a Fixed Rate on any Bond Payment
Date during a Weekly Rate Period or an Annual Rate Period. The Remarketing
Agent shall set the Fixed Rate on a date (the "Determination Date") no fewer
than two nor more than 15 Business Days before the Fixed Rate Conversion
Date. The Fixed Rate shall be the rate determined by the Remarketing Agent to
be the rate per annum equal to the minimum interest rate which would be
necessary for the Remarketing Agent to sell the Bonds on the Determination
Date at 100% of the principal amount thereof plus accrued interest; provided,
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however, that in no event shall the interest rate borne by the Bonds on and after
the Fixed Rate Conversion Date exceed the Maximum Rate. A conversion of all
or any sinking fund redemption to serial maturity dates shall be required to the
extent, in the opinion of the Remarketing Agent delivered in writing to the
Authority and the City prior to the Fixed Rate Conversion Date, such a
conversion will reduce the total interest to be paid by the City as Base Rental and
the Authority and the City may specify optional redemption provisions to be
applicable to the Bonds (and prepayments under the Lease) different from that
set forth in Section 4.03(c) hereof and as set forth in a Supplemental Indenture.
In such case, all references to a Fixed Rate shall refer to the interest rates
applicable to each maturity.
In connection with any conversion to a Fixed Rate, the notice and
procedural requirements set forth in paragraphs (b) and (c) of Section 2.02.A shall
apply.
(b) Chanqe in Interest Rate Determination Method to Annual Rate or
Fixed Rate.
(1) Notice and Opinion of Bond Counset. The Authority may
initiate action to convert the interest borne by all of the Bonds from the Weekly
Rate to the Annual Rate or the Fixed Rate, or from the Annual Rate to the Fixed
Rate, by notifying the Authority, the Trustee, the Tender Agent, the Credit Entity
and the Remarketing Agent of the proposed Annual Rate Conversion Date or
Fixed Rate Conversion Date at least 60 days prior to such proposed date. The
notice shall be accompanied by (i) an opinion of Bond Counsel stating that the
conversion is not prohibited by the law of the State or this Indenture, and (ii)
written evidence of satisfaction of the limitations specified in subsection
2.02.A(b)(2) hereof. The Trustee shall have no obligation to provide notice to the
Owners pursuant to Section 2.02.A(c) hereof of a change to an Annual Rate or
the Fixed Rate unless the Trustee has received the notice from the Authority and
the opinion of Bond Counsel and the written evidence of satisfaction in
accordance with this Section. The Authority may not request a conversion from
the Weekly Rate to the Annual Rate or the Fixed Rate, or from the Annual Rate
to the Fixed Rate, during the existence of an Event of Default and the notice from
the Authority shall certify as to the absence thereof. If the Authority's notice
complies with this paragraph, and subject to the provisions of Sections 2.02A(e)
and 4.13 hereof, the Annual Rate or the Fixed Rate shall be applicable from the
effective date specified in the notice.
Upon conversion from the Weekly Rate or Annual Rate to the Fixed
Rate, the Trustee promptly shall surrender the Credit Facility to the Credit Entity
pursuant to the terms of the Credit Facility.
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(2) Limitations. A conversion from the Weekly Rate to the
Annual Rate or the Fixed Rate, or from the Annual Rate to the Fixed Rate,
pursuant to subsection 2.02.A(b)(1) shall comply with the following:
(i) the effective date of the conversion shall be a Bond
Payment Date; and
(ii) the Remarketing Agent shall have agreed to remarket
the Bonds on the Conversion Date.
(c) Notice to Owners of Chanae to Annual Rate or Fixed Rate. When
a conversion from the Weekly Rate to the Annual Rate or the Fixed Rate, or from the
Annual Rate to the Fixed Rate, is to be made, the Trustee shall notify the Owners and
the Credit Entity by first class mail at least 30 but not more than 60 days prior to the
proposed Conversion Date. The notice shall be prepared and furnished by the Authority
to the Trustee for mailing at least 60 days prior to the proposed Conversion Date and
shall state:
(1) that the interest rate payable with respect to the Bonds will
be converted to the Annual Rate or the Fixed Rate, as applicable;
(2) the effective date of the Annual Rate or the Fixed Rate, as
applicable;
(3) the Bond Payment Dates and Record Dates following the
Conversion Date;
(4) if the conversion is to a Fixed Rate, that following the Fixed
Rate Conversion Date there will be no option to tender Bonds for purchase, or if
the conversion is to an Annual Rate, that during an Annual Rate Period there will
be no option to tender Bonds for purchase;
(5) that all Bonds are subject to mandatory tender for purchase
on the Conversion Date and will be deemed to have been so tendered and shall
be purchased on the Conversion Date at the principal amount thereof plus
interest accrued to such date; and
(6) that if the opinion of Bond Counsel required pursuant to
subsection 2.02.A(b) is rescinded, the interest rate will not be converted to the
Annual Rate or the Fixed Rate, as applicable.
In connection with any proposed conversion to the Annual Rate or the
Fixed Rate, the Authority shall (A) prepare a new official statement, remarketing
memorandum or similar offering document and provide as many copies of such offering
document as the Remarketing Agent may reasonably request to remarket such Bonds,
(B) as provided in Section 11.01 hereof, enter into a Continuing Disclosure Agreement
in the form acceptable to the Authority and the Remarketing Agent in order to assist the
Remarketing Agent in complying with the requirements of Rule 15c2-12 promulgated
20
under the Securities Exchange Act of 1934, and (C) obtain a Rating Confirmation to the
effect that the ratings on the Bonds shall not be lowered or withdrawn as the result of
such change to the Annual Rate or the Fixed Rate.
(d) Calculation of Interest. During an Weekly Rate Period, interest with
respect to the Bonds shall be computed on the basis of the actual number of days
elapsed in a year of 365 days (366 days in leap years) and will be payable on each
Bond Payment Date. During an Annual Rate Period or on and after the Fixed Rate
Conversion Date, interest with respect to the Bonds shall be computed on the basis of a
360-day year comprised of twelve 30-day months and will be payable on each Bond
Payment Date. Interest on overdue principal and, to the extent lawful, on overdue
premium and interest with respect to any Bond shall be payable at the rate applicable to
such Bond until paid. The Trustee shall compute the amount of interest payable with
respect to the Bonds using the rates supplied to the Trustee by the Remarketing Agent.
The Remarketing Agent shall send notice in writing to the Trustee and the Tender
Agent, of the following:
(1) on Wednesday of each week in which interest on the Bonds
is payable at a Weekly Rate, of the Weekly Rate for the applicable Thursday
through Wednesday period;
(2) on the first Business Day after the Determination Date, the
Annual Rate or Fixed Rate set on such Determination Date.
Using the rates supplied by such notices, the Trustee shall calculate the interest
payable with respect to the Bonds for the applicable period. During the Weekly
Rate Period or the Annual Rate Period, the Trustee shall send the Authority and
the City at least five (5) days prior to each Bond Payment Date written notice of
the interest that witl have accrued with respect to the Bonds for the period from
the preceding Bond Payment Date to the upcoming Bond Payment Date. In the
event that the Weekly Rate will be reset between the date such notice is sent and
the upcoming Bond Payment Date, the Trustee shall make such calculation
assuming that the Weekly Rate will be set at the Maximum Rate on such reset
date. The Remarketing Agent shall inform the Trustee, the Authority, the City,
the Tender Agent and the Credit Entity orally at the oral request of any of them of
any interest rate set by the Remarketing Agent. The Trustee shall confirm the
effective interest rate by telephone or in writing to any Owner (at such Owner's
cost) who requests it in any manner.
The setting of the rates and the calculation of interest payable with respect to the
Bonds as provided in this Indenture shall be conclusive and binding on all
parties.
(e) Rescission of Opinion of Bond Counsel. Notwithstanding any
provision herein to the contrary, no conversion shall be made from a Weekly Rate to an
Annual Rate or the Fixed Rate, or from an Annual Rate to a Weekly Rate, or from an
Annual Rate to the Fixed Rate, if the Trustee and the Tender Agent shall receive written
21
notice from Bond Counsel prior to such conversion that the opinion of Bond Counsel
required pursuant to subsection 2.02.A(a) hereof or subsection 2.02.A(b)(1) hereof, as
applicable, has been rescinded. If the Trustee shall have sent any notice to the Owners
and the Credit Entity regarding such a conversion pursuant to subsection 2.02.A(a)
hereof or subsection 2.02.A(c) hereof, as applicable, then in the event of rescission of
the opinion of Bond Counsel, the Trustee shall promptly notify all Owners and the Credit
Entity of such rescission and that the rate will not be converted to new Interest Rate
Mode.
(� Interest on the Bonds shall be payable on each Bond Payment
Date to, but not including, the date of maturity or redemption, whichever is earlier. The
proportionate share of the portion of Base Rental designated as interest with respect to
any Bond shall be computed by multiplying the portion of Base Rental designated as
principal with respect to such Bond by the interest rate applicable to such Bond.
SECTION 2.03. Transfer of Bonds. Any Bond may, in accordance with its
terms, be transferred, upon the registration books kept by the Trustee for such purpose,
by the person in whose name it is registered, in person or by his duly authorized
attorney, upon surrender of such Bond for cancellation, accompanied by delivery of a
written instrument of transfer, duly executed in a form approved by the Trustee or the
Tender Agent; provided, however, that neither the Trustee nor the Tender Agent shall
be required to register the transfer of any Bond during the period five (5) days prior to
any date established by the Trustee for the selection of Bonds for redemption nor any
Bond actually selected by the Trustee for redemption.
Whenever any Bond or Bonds shall be surrendered for registration of transfer,
the Authority shall execute and the Trustee shall deliver a new Bond or Bonds of the
same maturity and interest rate and for a like aggregate principal amount. The Trustee
or the Tender Agent shall require the Owner requesting such registration of transfer to
pay any tax or other governmental charge required to be paid with respect to such
transfer. The cost of printing any Bonds and any services rendered or any expenses
incurred in connection with any transfer shall be paid by the Authority solely from
Revenues.
The Authority, the Trustee and the Tender Agent may treat the registered owner
of any Bond as the absolute owner thereof for all purposes whatsoever in accordance
with this Indenture, and the Authority and the Trustee shall not be affected by any notice
to the contrary.
SECTION 2.04. Use of Securities Depositorv. (a) The Bonds shall be initially
registered as provided in Section 2.02. Registered ownership of the Bonds, or any
portion thereof, may not thereafter be transferred except:
(1) to any successor of Cede & Co., as nominee of DTC, or its
nominee, or to any substitute depository designated pursuant to clause (2) of this
Section (a "substitute depository"); provided, that any successor of Cede & Co.,
22
as nominee of DTC or a substitute depository, shall be qualified under any
applicable laws to provide the services proposed to be provided by it;
(2) to any substitute depository, upon (1) the resignation of DTC
or its successor (or any substitute depository or its successor) from its functions
as depository, or (2) a determination by the Authority to substitute another
depository for DTC (or its successor) because DTC or its successor (or any
substitute depository or its successor) is no longer able to carry out its functions
as depository; provided, that any such substitute depository shall be qualified
under any applicable laws to provide the services proposed to be provided by it;
or
(3) to any person as provided below, upon (1) the resignation of
DTC or its successor (or substitute depository or its successor) from its functions
as depository, or (2) a determination by the Authority to remove DTC or its
successor (or any substitute depository or its successor ) from its functions as
depository.
(b) In the case of any transfer pursuant to clause (1) or clause (2) of
subsection (a) hereof, upon receipt of the Outstanding Bonds by the Trustee, together
with a Written Request of the Authority to the Trustee, a new Bond for each maturity
shall be authenticated and delivered in the aggregate principal mount of the Bonds then
Outstanding, registered in the name of such successor or such substitute depository, or
their nominees, as the case may be, all as specified in such Written Request of the
Authority.
(c) In the case of any transfer pursuant to clause (3) of subsection (a)
hereof, upon receipt of the Outstanding Bonds by the Trustee, together with a Written
Request of the Authority to the Trustee, new Bonds shall be authenticated and delivered
in such denominations numbered in the manner determined by the Trustee and
registered in the names of such persons as are requested in such a Written Request of
the Authority, subject to the limitations of Section 2.02 hereof; provided, the Trustee
shall not be required to deliver such Bonds within a period less than sixty (60) days from
the date of receipt of such a Written Request of the Authority. After any transfer
pursuant to this subsection, the Bonds shall be transferred pursuant to Section 2.03.
(d) The Authority and the Trustee shall be entitled to treat the person in
whose name any Bond is registered as the Owner thereof for all purposes of the
Indenture and any applicable laws, notwithstanding any notice to the contrary received
by the Trustee or the Authority; and the Authority and the Trustee shall have no
responsibility for transmitting payments to, communication with, notifying, or otherwise
dealing with any beneficial owners of the Bonds, and neither the Authority nor the
Trustee will have any responsibility or obligations, legal or otherwise, to the beneficial
owners or to any other party, including DTC or its successor (or substitute depository or
its successor), except for the Owner of any Bonds.
23
(e) So 1ong as the Outstanding Bonds are registered in the name of
Cede & Co. or its registered assigns, the Authority and the Trustee shall cooperate with
Cede & Co., as sole registered Owner, or its registered assigns, in effecting payment of
the principal of and interest on the Bonds by arranging for payment in such manner that
funds for such payments are properly identified and are made immediately available on
the date they are due.
(� Notwithstanding anything to the contrary contained herein, so long
as the Bonds are registered as provided in this Section 2.04, payment of principal of
and interest on the Bonds shall be made in accordance with the Letter of
Representations delivered to DTC with respect to the Bonds.
(g) Notwithstanding the foregoing, in the event any Bond is tendered
but not remarketed, with the result that such Bond becomes a Credit Facility Bond, the
Trustee and the Authority shall take all such actions as shall be necessary to remove
the Bonds from the full book-entry system of DTC and to (i) register such tendered but
not remarketed Bonds in the name of the Credit Entity and (ii) register tendered but
remarketed Bonds in the name of the purchaser thereof, or their nominee. Credit
Facility Bonds shall be held by the Tender Agent on behalf, and for the benefit, of the
Credit Entity, pursuant to the Custody Agreement (as such term is defined in the
Reimbursement Agreement). The Trustee and the Tender Agent will use their best
efforts to have a separate CUSIP number assigned to the Credit Facility Bonds. At
such time as all Credit Facility Bonds have been remarketed such that no Credit Facility
Bonds remain Outstanding and the Credit Facility has been reinstated to the amount of
its Commitment (as such term is defined in the Reimbursement Agreement), the
Trustee and the Authority shall take all such actions as shall be necessary to return the
Bonds to the full book-entry system of the DTC.
SECTION 2.05. Exchanqe of Bonds. Bonds may be exchanged at the
corporate office of the Trustee or the Tender Agent for a like aggregate principal amount
of Bonds of the same maturity in other authorized denominations. The Trustee or the
Tender Agent shall require the Owner requesting such exchange to pay any tax or other
governmental charge required to be paid with respect to such exchange. The Trustee
or the Tender Agent may also require the Owner requesting such exchange to pay a
reasonable charge as may be necessary to cover customary expenses incurred and
fees charged by the Trustee, the Tender Agent or the Authority with respect to such
exchange. The Trustee or the Tender Agent may refuse to register the exchange of any
Bond during the period five (5) days prior to the date established by the Trustee for the
selection of Bonds for redemption or any Bond actually selected by the Trustee for
redemption pursuant to the terms hereof. The cost of printing any Bonds and any
services rendered or any expenses incurred in connection with any exchange shall be
paid by the Authority solely from Revenues.
SECTION 2.06. Bond Reaister. The Trustee shall keep or cause to be kept,
at the corporate office of the Trustee sufficient books for the registration and transfer of
the Bonds, which shall at all times be open to inspection by the Authority with
reasonable notice during regular business hours; and, upon presentation for such
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purpose, the Trustee shall, under such reasonable regulations as it may prescribe,
register or transfer or cause to be registered or transferred, on such books, Bonds as
hereinbefore provided.
SECTION 2.07. Form and Execution of Bonds. Prior to the Fixed Rate
Conversion Date, the Bonds shall be substantially in the forms attached hereto as
Exhibit A and Exhibit B, as applicable, and hereby made a part hereof. After the Fixed
Rate Conversion Date, the Bonds shall be substantially in the forms attached hereto as
Exhibit C. The Bonds shall be signed in the name and on behalf of the Authority with
the manual or facsimile signatures of its President and attested with the manual or
facsimile signature of its Secretary or any assistant duly appointed by the Board, and
shall be delivered to the Trustee for authentication by it. In case any officer of the
Authority who shall have signed any of the Bonds shall cease to be such officer before
the Bonds so signed shall have been authenticated or delivered by the Trustee or
issued by the Authority, such Bonds may nevertheless be authenticated, delivered and
issued and, upon such authentication, delivery and issue, shall be as binding upon the
Authority as though the individual who signed the same had continued to be such officer
of the Authority. Also, any Bond may be signed on behalf of the Authority by any
individual who on the actual date of the execution of such Bond shall be the proper
officer although on the nominal date of such Bond such individual shall not have been
such officer.
Only such of the Bonds as shall bear thereon a certificate of authentication in
substantially the forms set forth in Exhibit A, Exhibit B, or Exhibit C, as applicable,
manually executed by the Trustee, shall be valid or obligatory for any purpose or
entitled to the benefits of this Indenture, and such certificate of the Trustee shall be
conclusive evidence that the Bonds so authenticated have been duly authenticated and
delivered hereunder and are entitled to the benefits of this Indenture.
SECTION 2.08. Temporary Bonds. The Bonds may be issued in temporary
form exchangeable for definitive Bonds when ready for delivery. Any temporary Bonds
may be printed, lithographed or typewritten, shall be of such denominations as may be
determined by the Authority, shall be in fully registered form without coupons and may
contain such reference to any of the provisions of this Indenture as may be appropriate.
Every temporary Bond shall be executed by the Authority and authenticated by the
Trustee upon the same conditions and in substantially the same manner as the
definitive Bonds. If the Authority issues temporary Bonds it will execute and deliver
definitive Bonds as promptfy thereafter as practicable, and thereupon the temporary
Bonds may be surrendered, for cancellation, at the Principal Office and the Trustee
shall authenticate and deliver in exchange for such temporary Bonds an equal
aggregate principal amount of definitive Bonds of authorized denominations. Until so
exchanged, the temporary Bonds shall be entitled to the same benefits under this
Indenture as definitive Bonds authenticated and delivered hereunder.
SECTION 2.09. Bonds Mutilated Lost Destroved or Stolen. If any Bond
shall become mutilated, the Authority, at the expense of the Owner of said Bond, shall
execute, and the Trustee or the Tender Agent shall thereupon authenticate and deliver,
25
a new Bond of like tenor and principal amount in exchange and substitution for the Bond
so mutilated, but only upon surrender to the Trustee or the Tender Agent of the Bond so
mutilated. Every mutilated Bond so surrendered to the Trustee or the Tender Agent
shall be canceled by it and delivered to, or upon the order of, the Authority.
If any Bond shall be lost, destroyed or stolen, evidence of such destruction or
theft may be submitted to the Authority, the Trustee or the Tender Agent and, if such
evidence be satisfactory to the Trustee and an indemnity satisfactory to it shall be given,
the Authority, at the expense of the Owner, shall execute, and the Trustee or the Tender
Agent shall thereupon authenticate and deliver, a new Bond of like tenor and maturity in
lieu of and in substitution for the Bond so lost, destroyed or stolen (or if any such Bond
shall have matured, or shall be about to mature or has been selected for redemption,
instead of issuing a substitute bond, the Trustee may pay the same without surrender
thereof).
The Authority may require payment of a sum not exceeding the actual cost of
preparing each new Bond issued under this Section 2.09 and of the expenses that may
be incurred by the Authority or the Trustee. Any Bond issued under the provisions of
this Section 2.09 in lieu of any Bond alleged to be lost, destroyed or stolen shall
constitute an original additional contractual obligation on the part of the Authority
whether or not the Bond so alleged to be lost, destroyed or stolen is at any time
enforceable by anyone, and shall be entitled to the benefits of the Indenture with all
other Bonds secured by this Indenture.
SECTION 2.10. CUSIP Numbers. The Trustee and the Authority shall not be
liable for any defect or inaccuracy in the CUSIP number that appears on any Bond or in
any redemption notice. The Trustee may, in its discretion, include in any redemption
notice a statement to the effect that the CUSIP numbers on the Bonds have been
assigned by an independent service and are included in such notice solely for the
convenience of the Owners and that neither the Trustee nor the Authority shatl be liable
for any inaccuracies in such numbers.
SECTION 2.11. Certain Contracts and Hedqina Aqreements. Without
entering into a supplement to this Indenture, any Authorized Representative of the
Authority may, with the prior consent of the Credit Entity, at any time that the Bonds are
Outstanding enter into one or more additional contracts (each a "Hedging Agreements")
in order to place the Bonds, or any portion thereof, on the interest rate, currency, cash-
flow, or other basis desired by the City and the Authority, including, without limitation,
the Interest Rate Collar Agreement, interest rate swap agreements, currency swap
agreements, forward payment conversion agreements, futures contracts, contracts
providing for payments based on levels of or changes in interest rates, currency
exchange rates, stock or other indices, or contracts to exchange cash flows or a series
of payments, and contracts including, without limitation, interest rate floors or caps,
options, puts or calls to hedge payments, currency rate, spread or similar exposure;
provided, however, the Authority will enter into such a contract only if at the time the
Hedging Agreement is entered into, either (i) the counterparty to any such contract or
the guarantor of the obligations of such counterparty has an unsecured, uninsured and
26
unguaranteed long-term obligation rated by Moody's or S&P in one of its two highest
long-term Rating Categories (without reference to gradations such as "plus" or "minus")
or, (ii) each rating agency which then has a rating assigned by any Bond that would be
secured on a parity with the Authority's obligation under said contract confirms in writing
to the Trustee that the Authority's execution and delivery of such Hedging Agreement
will not result in a reduction or withdrawal of such rating.
ARTICLE III
APPLICATION OF FUNDS
SECTION 3.01. Aqplication of Proceeds of the Bonds and Other Amounts.
There shall be deposited in trust with the Trustee the sum of $ (which is
equal to the par amount of the Bonds, less an underwriter's discount of $ , less
$ sent by the underwriter with respect to the Bonds on the Authority's behalf to
the Remarketing Agent), representing the proceeds received from the sale of the
Bonds. The Trustee shall immediately set aside such proceeds as follows:
(a) The Trustee shall deposit the amount of $ in the
Costs of Issuance Fund;
(b) The Trustee shall transfer the amount of [$1,969,000] to the City for
deposit in its General Fund, as reimbursement to the City for a portion of its advance to
initially fund the Energy Independence Fund;
(c) The Trustee shall transfer the amount of [$531,000] (an amount
equal to the entire Earned Excess Amount (as defined in the Lease) with respect to the
first Rental Period (as defined in the Lease)) to the City for deposit in the account
specified in Section 5.01(c) of the Lease with respect to the Leased Property, which
account has been heretofore established and is held and maintained by the City; and
(d) The remaining amount of the net proceeds of the Bonds, namely
the amount of $2,500,000, shall be transferred by the Trustee to the City for deposit in
the Energy Independence Fund.
In addition, on or prior to the Closing Date, the City shall have transferred,
or caused to have transferred, to the Trustee the sum of $2,455,000 pursuant to Section
5.01(d) of the Lease. Immediately upon receipt of such funds, the Trustee shall deposit
such amount into the Developer Claim Safekeeping Fund.
The Trustee may, in its discretion, establish a temporary fund or account
to facilitate or properly account for the foregoing deposits.
SECTION 3.02. Costs of Issuance Fund. The Trustee shall establish and
maintain a fund designated as the "Costs of Issuance Fund." Moneys in the Costs of
Issuance Fund shall be used and withdrawn by the Trustee from time to time to pay the
Costs of Issuance of the Bonds for which such fund was established upon submission
to the Trustee of a Request of the Authority stating (i) the Person to whom payment is to
27
be made, (ii) the amount to be paid, (iii) the purpose for which the obligation was
incurred and (iv) that such payment is a proper charge against said fund. Upon receipt
of a Certificate of the Authority stating that amounts in such fund are no longer required
for the payment of such Costs of Issuance or 180 days from the Closing Date,
whichever is earlier, such account shall be terminated and any amounts then remaining
in such account shall be withdrawn therefrom by the Trustee and transferred to the
Lease Payment Account of the Debt Service Fund, and upon such transfer, the Costs of
Issuance Fund shall be closed.
SECTION 3.03. Enerqv Independence Fund. The City has heretofore
established a special trust fund designated as the "Energy Independence Fund" (the
"Energy Independence Fund"), which is being held and maintained by the City for the
purpose of funding the City's Energy Independence Program. The Trustee shall transfer
such amount of the net proceeds of the Bonds to the City as provided in Section 3.01
for deposit in the Energy Independence Fund to be used for the City's Energy
Independence Program.
SECTION 3.04. Reserve Fund
(a) There is hereby created and established and shall be maintained
by the Trustee in trust as separate fund to be known as the "Reserve Fund." Prior to
the Fixed Rate Conversion Date, the Reserve Requirement shall be $0. In connection
with, and on or prior to, a Fixed Rate Conversion Date, the Authority shall deposit, or
shall cause the City to deposit, with the Trustee from any available moneys (other than
proceeds of the Bonds) an amount equal to the Reserve Requirement calculated as of
the Fixed Rate Conversion Date, and upon its receipt thereof, the Trustee shall deposit
such amount in the Reserve Fund. On or before each Bond Payment Date, the Trustee
shall deposit in the Reserve Fund such amount as may be necessary to maintain a
balance therein equal to the Reserve Requirement. No deposit shall be made in the
Reserve Fund so long as there shall be on deposit an amount equal to the Reserve
Requirement. All money in the Reserve Fund (or available to be drawn from a Qualified
Reserve Fund Credit Instrument) shatl be used and withdrawn by the Trustee solely for
the purpose of replenishing the Lease Payment Account of the Debt Service Fund in
the event of any deficiency at any time in such account or for the purpose of paying
the interest on or principal of or redemption premiums, if any, on the Bonds in the
event that no other money of the Authority is lawfully available therefor, reimburse the
Credit Entity if money has been drawn on the Credit Facility or for the retirement of all
Bonds then Outstanding.
(b) Upon prior written notification to Moody's and S&P, the Reserve
Requirement may be satisfied by crediting to the Reserve Fund moneys or a Qualified
Reserve Fund Credit Instrument or any combination thereof, which in the aggregate
make funds available in the Reserve Fund in an amount equal to the Reserve
Requirement. Upon the deposit with the Trustee of such Qualified Reserve Fund Credit
Instrument, the Trustee shall transfer any excess amounts then on deposit in the
Reserve Fund into a segregated account of the Lease Payment Account of the Debt
Service Fund to be established by the Trustee, which monies shall be applied at the
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written direction of the Authority either (i) to the payment within one year of the date of
transfer of capital expenditures of the Authority permitted by law, or (ii) to the
redemption of Bonds on the earliest succeeding date on which such redemption is
permitted hereby.
(c) In any case where the Reserve Fund is funded with a combination
of cash and a Qualified Reserve Fund Credit Instrument, the Trustee shall deplete all
cash balances before drawing on the Qualified Reserve Fund Credit Instrument. With
regard to replenishment, any available moneys provided by the Authority or the City
shall be used first to reinstate the Qualified Reserve Fund Credit Instrument and
second, to replenish the cash in the Reserve Fund. In the event the Qualified Reserve
Fund Credit Instrument is drawn upon, the Authority shall make payment of interest on
amounts advanced under the Qualified Reserve Fund Credit Instrument after making
any payments pursuant to this subsection.
SECTION 3.05. Developer Claim Safekeepinq Fund. The Trustee shall
establish and maintain a fund designated as the "Developer Claim Safekeeping Fund."
The Trustee shall keep such fund separate and apart from all other funds and moneys
held by it and shall transfer moneys from the Developer Claim Safekeeping Fund to the
Debt Service Fund in such amounts and at such times as directed from time to time by
a Written Request of the Authority pursuant to Section 5.01(d) of the Lease. Moneys
on deposit in the Developer Claim Safekeeping Fund shall be invested as provided in
Section 5.08 herein. Upon receiving a Written Request of the Authority, countersigned
by the Credit Entity and the Collar Provider, stating that one of the Safekeeping Release
Tests (as defined in the Lease) has been satisfied and moneys in the Developer Claim
Safekeeping Fund are no longer required to be maintained therein pursuant to the
Lease, the Trustee shall promptly transfer all moneys then on deposit in the Developer
Claim Safekeeping Fund to the City, at which time such moneys shall be released from
the pledge and lien hereunder and be used by the City for any lawful purpose free and
clear of the lien of this Indenture.
ARTICLE IV
REDEMPTION AND TENDER OF BONDS
SECTION 4.01. Establishment of Redemption Fund. Pursuant to
Section 5.01(b) hereof, the Trustee shall establish a special fund designated as the
"Redemption Fund" in which the Trustee shall establish two special accounts
designated as the "Lease Prepayment Account" and the "Credit Facility Prepayment
Account." The Trustee shall keep such fund separate and apart from all other funds
and moneys held by it and shall administer such fund and accounts as herein provided.
Moneys from Prepayments to be used for redemption of the Bonds shall be deposited
into the Lease Prepayment Account of the Redemption Fund and shall be used, to
reimburse the Credit Entity if money has been drawn on the Credit Facility, or to redeem
the Bonds, all as provided in the following sentence. Moneys drawn under the Credit
Facility to be used for redemption of the Bonds shall be deposited in the Credit Facility
Prepayment Account for the purpose of redeeming the Bonds in advance of their
29
maturity on the date designated for redemption and upon presentation and surrender of
such Bonds; provided, however, that if there shall no longer be available a Credit
Facility to secure the payment of principal and interest represented by the Bonds, or the
Credit Facility does not permit a draw with respect to Prepayments, moneys from
Prepayments to be used for redemption of the Bonds shall be deposited into the Lease
Prepayment Account of the Redemption Fund for the purpose of redeeming the Bonds
as provided herein.
Anything in this Indenture to the contrary notwithstanding, Credit Facility Bonds
that are selected for redemption under Section 4.05 hereof shall be redeemed from
amounts on deposit in the Lease Prepayment Account and not from amounts drawn on
the Credit Facility and deposited to the Credit Facility Prepayment Account.
SECTION 4.02. Mandatory Redemption From Net Proceeds. The Bonds are
subject to mandatory redemption on any Bond Payment Date, in whole or in part, from
moneys drawn under the Credit Facility, which draw shall be reimbursed from Net
Proceeds following the deposit by the Trustee in the Lease Prepayment Account of the
Redemption Fund of Net Proceeds deposited by the City under this Indenture, at least
45 days prior to a Bond Payment Date which have been credited towards the
Prepayment made by the City pursuant to the Lease, at a redemption price equal to the
principal amount of the Bonds to be redeemed, together with accrued interest to the
date fixed for redemption, without premium; provided, however, that if there shall no
longer be available a Credit Facility to secure the payment of principal and interest
represented by the Bonds or if the Credit Facility does not permit a draw with respect to
Prepayments, the Bonds are subject to redemption from Net Proceeds which the
Trustee shall deposit in the Lease Prepayment Account of the Redemption Fund, to be
used to redeem the Bonds by the Trustee as provided in the Lease and as provided
herein.
In the event that amounts remain in the Lease Prepayment Account because
such amounts did not constitute an Authorized Denomination of a Bond, then such
amounts shall be transferred to the Lease Payment Account of the Debt Service Fund.
SECTION 4.03. Optional Redemption of the Bonds. The Bonds shall be
subject to optional redemption as set forth in this Section 4.03.
(a) Durinq the Weeklv Rate Period. During the Weekly Rate Period
and on an Annual Rate Conversion Date or the Fixed Rate Conversion Date, the Bonds
are subject to optional redemption in whole or in part (in an amount of $100,000 or any
integral multiple of $5,000 in excess thereof) on any Business Day, at the option of the
Authority at a redemption price equal to the principal amount thereof together with
accrued interest to the date fixed for redemption, without premium.
(b) Durina the Annual Rate Period. During the Annual Rate Period and
on a Weekly Rate Conversion Date or the Fixed Rate Conversion Date, the Bonds are
subject to optional redemption in whole or in part (in integral multiples of $5,000) on any
Business Day, at the option of the Authority at a redemption price equal to the principat
30
amount thereof together with accrued interest to the date fixed for redemption, without
premium.
(c) After the Fixed Rate Conversion Date. After the Fixed Rate
Conversion Date and subject to modification pursuant to Section 2.02.A(a)(2), the
Bonds are subject to optional redemption in whole or in part (in integral multiples of
$5,000) on any Business Day, at the option of the Authority at a redemption price equal
to the principal amount thereof together with accrued interest to the date fixed for
redemption and without premium, or with such premium as may be set forth in any
Supplemental Indenture executed in connection with such Conversion.
(d) During the term of any Credit Facility no notice of any redemption
pursuant to this Section shall be sent unless either (1) the Authority has deposited with
the Trustee moneys in an amount sufficient to cover the principal of, premium, if any,
and interest due on such redemption date (exclusive of anticipated investment earnings
thereon), or (2) the Authority delivers to the Trustee the prior written consent of the
Credit Entity.
SECTION 4.04. Sinking Fund Redemption. The Bonds are subject to
mandatory redemption in part on the dates in the following years in the following
amounts at a redemption price equal to the principal amount thereof together with
accrued interest to the date fixed for redemption, without premium:
Redemption Redemption
Date Date
(September 1) Principal �September 1) Principal
2010 $130,000 2020 $250,000
2011 140,000 2021 270,000
2012 145,000 2022 285,000
2013 155,000 2�23 305,000
2014 170,000 2�24 330,000
2015 180,000 2025 350,000
2016 190,000 2026 375,000
2017 205,000 2027 400,000
2018 220,000 2028 430,000
2019 235,000 2029* 460,000
* Maturity
At the Fixed Rate Conversion Date, any annual sinking fund redemption which
has not yet become due may, pursuant to Section 2.02.A(a)(3) hereof, be treated as a
serial maturity of principal bearing interest at the Fixed Rate payable on March 1 and
September 1 thereafter to maturity.
In the event of a partial redemption of Bonds pursuant to Section 4.02 or 4.03
above, the foregoing annual sinking fund payments shall be reduced in equal
31
percentages, as nearly as practicable, provided that the reductions shall be made in
multiples of $5,000. The City shall provide the Trustee with the amended sinking fund
payments schedule calculated as set forth above.
SECTION 4.05. Selection of Bonds for Redemption. Whenever provision is
made in this Indenture for the redemption of Bonds and less than all Outstanding Bonds
are called for redemption, the Trustee shall select Bonds for redemption, from the
Outstanding Bonds not previously called for redemption, in Authorized Denominations,
first from Credit Facility Bonds, then with respect to a redemption under Section 4.02 on
a pro rata basis among maturities and by lot within a maturity, and in the case of a
redemption under Section 4.03 from such maturities as are designated in a City
Certificate. The Trustee shall promptly notify the City and the Authority in writing of the
Bonds so selected for redemption.
SECTION 4.06. Notice of Redemption. When redemption is authorized or
required pursuant to this Article IV, the Trustee shall give notice of the redemption of the
Bonds. Such notice shall specify: (a) that the Bonds or a designated portion thereof
are to be redeemed, (b) the CUSIP numbers and, if less than all of the Bonds of a
maturity are to be redeemed, the serial numbers of the Bonds to be redeemed, (c) the
date of redemption, (d) the place or places where the redemption will be made, (e) the
following descriptive information regarding the Bonds: date, interest rates and stated
maturity dates, and (f) that a new Bond in an amount equal to that portion not so
redeemed will be executed by the Trustee and delivered to the Owner in the event of a
partial redemption. Such notice shall further state that on the specified date there shall
become due and payable upon each Bond to be redeemed, the portion of the principal
amount of such Bond to be redeemed, together with interest accrued to said date, and
that from and after such date, provided that moneys therefore have been deposited with
the Trustee, interest with respect thereto shall cease to accrue and be payable.
Notice of such redemption shall be mailed by first-class mail, postage prepaid, to
the City, to all municipal Securities Depositories and to at least one national Information
Service which the City shall designate to the Trustee, and the respective Owners of any
Bonds designated for redemption at their addresses appearing on the Bond registration
books, at least 30 days, but not more than 60 days, prior to the redemption date;
provided that neither failure to receive such notice nor any defect in any notice so
mailed shall affect the sufficiency of the proceedings for the redemption of such Bonds,
and provided, further, however, that the Trustee shall, on the day it receives notice of
redemption by the City, provide telephonic, telegraphic or telex notice of such notice of
redemption to the Remarketing Agent and the Credit Entity.
SECTION 4.07. Partial Redemption of Bonds. Upon surrender by the Owner
of a Bond for partial redemption at the Principal Office of the Trustee or the Tender
Agent or after the Fixed Rate Conversion Date, at the Principal Office of the Trustee,
payment of such partial redemption of the principal amount of a Bond will be made to
such Owner by check mailed by first class mail to the Owner at his address as it
appears on the registration books of the Trustee, or by wire transfer to any Owner who
has exercised its option for payment by wire transfer pursuant to Section 2.02 herein.
32
Upon surrender of any Bond redeemed in part only, the Trustee or the Tender Agent
shall execute and deliver to the Owner thereof, at the expense of the Authority, a new
Bond or Bonds which shall be of Authorized Denominations equal in aggregate principal
amount to the unredeemed portion of the Bond surrendered and the of the same
interest rate and the same maturity. Such partial redemption shall be valid upon
payment of the amount thereby required to be paid to such Owner, and the City, the
Authority and the Trustee shall be released and discharged from all liability to the extent
of such payment.
SECTION 4.08. Effect of Notice of Redemption. Notice having been given as
aforesaid, and the moneys for the redemption (including the interest to the applicable
date of redemption), having been set aside in the Redemption Fund, the Bonds shall
become due and payable on said date of redemption, and, upon presentation and
surrender thereof at the Principal Office, said Bonds shall be paid at the unpaid principal
price with respect thereto, plus interest accrued and unpaid to said date of redemption.
If, on said date of redemption, moneys for the redemption of all the Bonds to be
redeemed, together with interest to said date of redemption, shall be held by the
Trustee so as to be available therefor on such date of redemption, and, if notice of
redemption thereof shall have been given as aforesaid, then, from and after said date of
redemption, interest with respect to the Bonds shall cease to accrue and become
payable. All moneys held by or on behalf of the Trustee for the redemption of Bonds
shall be held in trust for the account of the Owners of the Bonds so to be redeemed.
All Bonds paid at maturity or redeemed prior to maturity pursuant to the
provisions of this Article shall be canceled upon surrender thereof and delivered to or
upon the order of the City.
SECTION 4.09. Sur lus. Any funds remaining in the Redemption Fund after
redemption and payment of all Bonds outstanding, or provision made therefor
satisfactory to the Trustee, including accrued interest, shall be withdrawn by the Trustee
and remitted first to the Credit Entity to the extent that amounts are owed to the Credit
Entity pursuant to the Reimbursement Agreement and second to the Trustee for the
payment of any applicable fees and expenses to the Trustee (including the Trustee's
legal fees and expenses), with the remainder, if any, being remitted to the City.
33
SECTION 4.10. Establishment of Tender Fund. The Tender Agent shall
establish a special fund designated as the "Tender Fund," in which the Tender Agent
shall establish two special accounts designated as the "Remarketing Proceeds
Account" and the "Liquidity Account;" shall keep such fund and accounts separate and
apart from all other funds and moneys held by it; and shall administer such fund and
accounts as herein provided. Each of the Tender Fund and the Remarketing Proceeds
Account and the Liquidity Account therein shall be established to meet the criteria for an
Eligible Account. Moneys to be used with respect to the tender of Bonds shall be
deposited in the Tender Fund as herein provided and used solely for the purpose of
purchasing tendered Bonds.
SECTION 4.11. Mandatory Tender on Conversion Date. In the event the
City has complied with the applicable requirements of Section 2.02.A hereof to change
the interest rate represented by the Bonds from one Interest Rate Mode to another
Interest Rate Mode, all Bonds shall be subject to mandatory tender and purchase on the
Conversion Date in accordance with the provisions of Section 4.13 hereof.
SECTION 4.12. Mandator�Tenders Other Than on Conversion Date.
(a) The Bonds are subject to mandatory tender on the last Bond
Payment Date occurring on or prior to the date at least five days prior to the date on
which the Credit Facility is scheduled to expire or terminate in accordance with its terms
and if the Trustee has not received notice at least 40 days prior to such Bond Payment
Date that an extension of such expiration or termination date or that an Alternate Credit
Facility, is to be provided. Not less than thirty days before each such Mandatory Tender
Date under this Section 4.12(a), the Trustee shall send a notice to all Owners by first
class mail, postage prepaid, which notice shall contain the following information: (1)
that the Credit Facility is scheduled to expire or terminate and no Alternate Credit
Facility will be provided, (2) that each Owner's Bond is subject to mandatory tender as
provided in such notice, and (3) if any of the nationally recognized rating agencies which
has a credit rating outstanding on the Bonds has indicated to the Trustee in writing that
it will lower or withdraw its rating on the Bonds as of such Mandatory Tender Date,
notice of such new rating, or if no new rating is available, notice that any of such rating
agencies may lower or withdraw such rating as of such Mandatory Tender Date.
(b) The Bonds are subject to mandatory tender on the first Business
Day to occur on or after the seventh day following receipt by the Trustee of notice from
the Credit Entity of the occurrence of an event of default under the Reimbursement
Agreement or that the Credit Entity will not reinstate the interest portion of the Credit
Facility, and in each case directing the mandatory tender of the Bonds. Not later than
the third Business Day after receipt by the Trustee of such notice, the Trustee shall
send to all Owners by first class mail, postage prepaid, and to the Depository also by
facsimile, a notice which shall contain the following information: (1) that the Credit
Entity has declared an event of default under the Reimbursement Agreement or that the
Credit Entity will not reinstate the interest portion of the Credit Facility, and in each case
directing the mandatory tender of the Bonds, and (2) that each Owner's Bond is subject
34
to mandatory tender on the first Business Day to occur on or after the seventh day
following the receipt by the Trustee of such notice from the Credit Entity.
(c) The Bonds are subject to mandatory tender on the effective date of
any Alternate Credit Facility in accordance with the provisions of Section 4.13 hereof.
(d) All notices of a Mandatory Tender Date shall also be mailed by the
Trustee to the Credit Entity, the Remarketing Agent and the Tender Agent.
SECTION 4.13. Mechanics of Mandatory Tender. Owners of Bonds shall be
required to tender the Bonds to the Tender Agent by 11:00 a.m., New York time, on the
Mandatory Tender Date for purchase at a purchase price equal to the principal amount
thereof plus accrued interest thereon to the Mandatory Tender Date. So long as the
Bonds are registered in the name of the Nominee, such tenders shall be made through
the book-entry system. Any Untendered Bonds shall be deemed to have been
tendered. In the event of a failure by Owners of Bonds to tender Bonds on the
Mandatory Tender Date, said Owners of Untendered Bonds shall not be entitled to any
payment (including any interest to accrue subsequent to the Mandatory Tender Date)
other than the purchase price for such Untendered Bonds, and any Untendered Bonds
shall no longer be entitled to the benefits of this Indenture, except for the purpose of
payment of the purchase price thereof. Such Untendered Bonds shall be deemed
purchased, canceled and no longer Outstanding under this Indenture. However, the
purchase price will be paid only upon presentation of the Bonds to the Tender Agent.
In the case of a Conversion Date, if not less than eleven (11) days before such
Conversion Date (a) the Remarketing Agent notifies the Trustee that that it cannot
remarket all of the Bonds, (b) written notice is provided by the Authority to the Trustee to
the effect that it no longer wishes to proceed with the conversion, or (c) if the
requirements for the effectiveness of a Conversion Date are not satisfied before such
Conversion Date, the Trustee shall give notice thereof by first-class mail, postage
prepaid, to all Owners, the Remarketing Agent, the Credit Entity and the City and each
of such parties shall be restored to their respective positions as if notice of the
Conversion Date had not been given and no mandatory tender shall occur. In addition
to the mailed notice required by the preceding sentence, the Trustee shall deliver a
duplicate copy of such notice to the Depository and the Credit Entity by
telecommunications or overnight delivery.
SECTION 4.14. Option to Tender Durinq Weeklv Rate Period. During a
Weekly Rate Period and prior to the Fixed Rate Conversion Date (but not during an
Annual Rate Period), any Owner of the Bonds may give irrevocable written notice to the
Tender Agent at its Principal Office and request that the Tender Agent purchase all or
any part (in Authorized Denominations) of the Bonds then outstanding and registered in
the name of such Owner at an amount or price equal to the unpaid principal amount
thereof plus accrued and unpaid interest thereon to, but not including, the Business Day
on which the Bonds are to be tendered to the Tender Agent (the "Optional Tender
Date") and without premium. Such notice (the "Optional Tender Notice") shall be
substantially in the form set forth in Exhibit A or Exhibit B hereto and shall specify the
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Optional Tender Date (which, during a Weekly Rate Period, shall not be less than seven
(7) days after the date of receipt by the Tender Agent of such Optional Tender Notice),
the CUSIP Number, the principal amount being tendered in integral multiples of
Authorized Denominations and, so long as the Bonds are registered in the name of the
Nominee, such notice shall also specify the Participant number and the contact person
of the Participant. Upon receipt of an Optional Tender Notice, the Tender Agent shall,
as soon as is practicable but in no event later than the close of business on the
Business Day following the day of receipt of such Optional Tender Notice, give notice to
the Trustee, the Authority, the Credit Entity and the Remarketing Agent of the Optional
Tender Notice, the Optional Tender Date specified therein and the principal amount of
Bonds to be purchased on such Optional Tender Date.
Owners providing an Optional Tender Notice shall be required to tender the
Bonds to the Tender Agent for purchase by 11:00 a.m., New York time, on the Optional
Tender Date. In the event of a failure by Owners of Bonds to tender Bonds on the
Optional Tender Date, said Owners of Bonds shall not be entitled to any payment
(including any interest to accrue subsequent to the Optional Tender Date) other than the
purchase price for such Untendered Bonds, and any Untendered Bonds shall no longer
be entitled to the benefits of this Indenture, except for the purpose of payment of the
purchase price thereof. Such Untendered Bonds shall be deemed purchased, canceled
and no longer Outstanding under this Indenture. However, the purchase price will be
paid only upon presentment of the Bonds to the Tender Agent. Upon the cancellation of
Untendered Bonds, the Trustee shall execute new Bonds in the same aggregate
principal amount as, and in substitution for the Bonds not so tendered by such Owner
and shall hold, deliver and make available such new Bonds to the new Owner thereof in
accordance with the provisions of this Indenture which shall be fulty applicable
notwithstanding that such new Bonds are executed in substitution for the Bonds not so
tendered.
During an Annual Rate Period and from and after the Fixed Rate Conversion
Date, the Tender Agent will not be required to purchase such Bonds on demand and
optional tender by the Owners thereof in accordance with this Section 4.14.
SECTION 4.15. Purchase of Bonds Delivered On a Tender Date.
(a) Bonds purchased from Owners on any Tender Date shall be
purchased at a price equal to the principal amount thereof plus accrued interest, if any,
to the Tender Date in immediately available funds, but solely from the foflowing sources
of funds in the following order of priority:
(1) moneys deposited into the Remarketing Proceeds Account,
other than moneys representing remarketing proceeds from the sale of Bonds to
the Authority or the City, in accordance with Section 4.16 hereof;
(2) moneys deposited into the Liquidity Account in accordance
with Section 5.05(b) hereof;
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(3) other Available Moneys furnished to the Trustee for such
purpose; and
(4) other moneys made available to the Trustee for such
purpose from the Authority or the City.
(b) The Tender Agent or Trustee, as applicable, shall promptly give
notice to the Credit Entity, the Remarketing Agent, the Tender Agent, the Trustee and
the City of any notice given by or to an Owner pursuant to the provisions of Sections
4.11, 4.12, 4.13 and 4.14 hereof.
(c) No later than 11:00 a.m., New York time, on the Business Day next
preceding each Tender Date, the Remarketing Agent shall give telex or telephonic
notice, promptly confirmed in writing, to the Tender Agent and the Trustee and
specifying the amount of the proceeds of the sale of such Bonds, if any, sold by the
Remarketing Agent pursuant to Section 4.16 hereof and the name, address and tax
identification number of the purchasers thereof as well as the denominations of such
remarketed Bonds.
(d) The purchase price of any Bonds tendered for purchase shall be
payable by check mailed to the Owners of record as of the close of business on the day
next preceding the Tender Date; provided, however, that the purchase price of such
tendered Bonds for purchase may, at the option of any Owner, be transferred to such
Owner by wire transfer on the Tender Date if prior to such Tender Date such Owner has
delivered to the Tender Agent a request in writing for such wire transfer specifying the
bank account number to which such transfer is to be made.
On the Business Day next preceding each Tender Date, the Trustee shall draw
on the Credit Facility in accordance with Section 5.05(b) hereof and shall deposit the
amount of such draw in the Liquidity Account to pay for the purchase price of any Bonds
that will not be paid from remarketing proceeds in the Remarketing Proceeds Account.
In the event that the Trustee has not received notice from the Remarketing Agent as to
the availability of remarketing proceeds prior to the time of its draw on the Credit Facility
on the Business Day preceding a Tender Date, the Trustee shall draw on the Credit
Facility in accordance with Section 5.05(b) hereof to pay the purchase price of all Bonds
tendered for purchase on such Tender Date. The Tender Agent shall pay, to the extent
that it has received funds therefor, the purchase price of such tendered Bonds, plus
accrued interest, if any, no later than 5:00 p.m., New York time, on any Optional Tender
Date or Mandatory Tender Date.
SECTION 4.16. Remarketinq of Bonds bv Remarketinq Aaent. The
Remarketing Agent shall use its best efforts to remarket Bonds subject to purchase on a
Tender Date (other than those tendered pursuant to Section 4.12 (a) or (c), which
Bonds shall be remarketed as set forth in the following paragraph) and to remarket such
Bonds registered in the name of the Credit Entity pursuant to Section 4.17(b) hereof.
The proceeds of any sale with respect to a Tender Date shall be delivered to the Tender
Agent for deposit in the Remarketing Proceeds Account by no later than 11:00 a.m.,
37
New York time, on the Business Day prior to each Tender Date. The proceeds of the
sale of any Bonds registered to or on behalf of the Credit Entity shall be delivered to the
Tender Agent for deposit in the Remarketing Proceeds Account by 11:00 a.m., New
York time, on the date of sale and the Tender Agent shall remit such amounts to the
Credit Entity no later than 4:00 p.m., New York time, on such date.
In the event that any Bonds are purchased for the benefit of the Credit Entity
pursuant to Section 4.17(b) hereof, the Remarketing Agent shall continue to offer for
sale and use its best efforts to sell such Bonds. Prior to the release of any Credit
Facility Bonds or the remarketing of any Bonds purchased following the mandatory
tender thereof pursuant to Section 4.12(a) or (c), the Tender Agent shall have received
written notice from the Credit Entity that the Credit Facility has been reinstated or the
event of default under the Reimbursement Agreement has been cured or waived or an
Alternate Credit Facility has been delivered in an amount equal to the principal amount
of the Credit Facility Bonds to be released and interest thereon in accordance with its
terms.
SECTION 4.17. Delivery of Bonds.
(a) Bonds remarketed by the Remarketing Agent pursuant to
Section 4.16 hereof shall be delivered to the Remarketing Agent, and registered in the
name, or at the direction of, the respective purchasers.
(b) Bonds purchased with moneys drawn under the Credit Facility shall
be registered in the name, or at the direction, of the Credit Entity or its nominee and
delivered to and held by the Tender Agent for the account of the Credit Entity as
secured party, unless the Credit Entity shall make other arrangements with the Tender
Agent. The Tender Agent shall notify the Remarketing Agent when Bonds are
registered to or on behalf of the Credit Entity or its nominee, and the Remarketing Agent
shall remarket such Bonds in accordance with Section 4.16 hereof.
(c) Bonds purchased with Available Moneys or other moneys provided
by the Authority to the Tender Agent shall be delivered to the Trustee for cancellation.
(d) Moneys in the Liquidity Account and the Remarketing Proceeds
Account shall be held in trust for the persons who delivered such Bonds for purchase.
Following payment to persons who delivered such Bonds for purchase, to the extent
that any fees or obligations are owed to the Trustee or the Credit Entity, moneys
remaining in the Remarketing Proceeds Account shall be paid by the Tender Agent to
the Credit Entity for the repayment of amounts owing under the Reimbursement
Agreement as certified to the Tender Agent in writing by the Credit Entity and moneys
remaining in the Liquidity Account shall be returned to the Credit Entity. Money
remaining in such Accounts following such payments, if any, shall be transferred to the
Lease Payment Account of the Debt Service Fund.
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SECTION 4.18. Alternate Credit Facilitv.
(a) Not less than forty days prior to the Bond Payment Date occurring
at least 5 days before the proposed effective date of an Alternate Credit Facility, the City
shall notify the Trustee, the Tender Agent, the Remarketing Agent and the Credit Entity
of its intention to provide such Alternate Credit Facility. Provided that the Trustee has
received the notice required by the previous sentence and the items required by
Sections 4.18(b)(ii) and (b)(iii) below, then, not less than fifteen days before the effective
date of any Alternate Credit Facility, the Trustee shall send a notice to all Owners by
first class mail, postage prepaid, which notice shall contain the following information:
(1) that the Credit Facility will expire or terminate and that an Alternate Credit Facitity
will be provided, (2) the identity of the provider of such Alternate Credit Facility and (3)
that all Bonds are subject to mandatory tender on the �ast Business Day which is at
least five days prior to the expiration date of the existing Credit Facility.
(b) If at any time there shall have been delivered to the Trustee (i) an
Alternate Credit Facility, which shall be for a term of not less than the stated expiration
date of the Credit Facility then in effect for which it substitutes, (ii) an opinion of Bond
Counsel stating that the delivery of such Alternate Credit Facility to the Trustee is
authorized under this Indenture, and complies with the terms of this Indenture and (iii)
written confirmation from the Credit Entity that no amounts are then due and unpaid
under the Reimbursement Agreement, then the Trustee shall accept such Alternate
Credit Facility and promptly surrender the Credit Facility then in effect to the Credit
Entity in accordance with its terms for cancellation. If at any time there shall cease to
be any Bonds outstanding hereunder, the Trustee shall thereafter surrender the Credit
Facility then in effect to the Credit Entity in accordance with the terms thereof for
cancellation.
SECTION 4.19. Restriction on Remarketing of Bonds to Citv. So long as the
Credit Facility is effective, no Bond tendered pursuant to this Article shall be remarketed
to the City. The Tender Agent shall not be required to monitor the actions of the
Remarketing Agent to ensure that it will not sell Bonds to the City.
SECTION 4.20. Book-Entry Tenders: Duties of Tender Aqent with Respect to
Purchase of Bonds.
(a) Notwithstanding any other provision of this Article to the contrary,
all tenders for purchase during any period in which the Bonds are registered in the
name of the Nominee (or the nominee of any successor Depository) shall be subject to
the terms and conditions set forth in the Representations Letter and any notes and
regulations promulgated by The Depository Trust Company, New York, New York.
Subject thereto, the Bonds may be tendered by means of a book-entry credit of such
Bonds to the account of the Remarketing Agent; provided, however, that under certain
circumstances notice of tender shall be given by a Participant on behalf of the beneficial
owner of such Bonds; and provided further that, if the Remarketing Agent notifies the
Trustee that such Bonds have been remarketed pursuant to this Indenture, such Bonds
may be treated as being tendered upon a book-entry transfer of such Bonds from the
39
account of the tendering party to the credit of the account of the purchaser of such
Bonds.
(b) The Tender Agent agrees, with respect to any optional or
mandatory tender of the Bonds:
(i) To hold all moneys, other than moneys delivered to it
by or on behalf of the City for the purchase of Bonds, delivered to it
hereunder for the purchase of Bonds as agent and bailee of, and in
escrow for the benefit of, the person or entity which shall have so
delivered such moneys until the Bonds purchased with such moneys shall
have been delivered to or for the account of such person or entity;
(ii) To hold all moneys delivered to it hereunder by or on
behalf of the City for the purchase of Bonds as agent and bailee of, and in
escrow for the benefit of, the Owners who shall deliver Bonds to it for the
purchase until the Bonds purchased with such moneys shall have been
delivered to or for the account of the City.
ARTICLE V
REVENUES AND FUNDS
SECTION 5.01. Establishment of Funds. In addition to the funds established
herein, the Trustee shall further establish, maintain and hold in trust the following funds
and accounts:
(a) Debt Service Fund, in which there is further established a Lease
Payment Account, a Credit Facility Account, and a Collar Payment Account.
(b) Redemption Fund in which there is further established pursuant to
Section 4.01 hereof a Lease Prepayment Account and a Credit Facility Prepayment
Account.
Each of the Credit Facility Account of the Debt Service Fund and the
Credit Facility Prepayment Account of the Redemption Fund shall be established to
meet the criteria for an Eligible Account.
SECTION 5.02. Pledge and Assignment; Equal Securitv.
(a) The Bonds, the Interest Rate Collar Agreement, and the obligations
of the City set forth in the Reimbursement Agreement are secured by a pledge of and
lien on all of the Revenues (except as otherwise provided in Section 7.03 and
Section 8.06) and upon all of the moneys in the funds and accounts established
hereunder. Except for the Revenues and such moneys, no funds or properties of the
Authority shall be pledged to, or otherwise liable for, the payment of principal of,
premium (if any) or interest on the Bonds. The Energy Independence Fund is not, and
shall not, be pledged to, or otherwise liable for, the payment of premium (if any) or
40
interest on the Bonds, Collar Payments under the Interest Rate Cotlar Agreement, or
the obligations of the City under the Reimbursement Agreement.
(b) The Authority and the City, as their interests may appear, hereby
grant to the Credit Entity and to the Trustee, for the benefit of the Owners and to the
Collar Provider, a lien on and a security interest in the Lease and the Revenues,
including all moneys in the funds held by the Trustee under this Indenture (excepting
only the moneys set aside by the Trustee to satisfy the requirements of Section 10.02
hereof and amounts in the Remarketing Proceeds Account to be applied to pay the
purchase price of Bonds), including, without limitation, the Debt Service Fund, and all
such moneys shall be held by the Trustee in trust and applied to the respective
purposes specified herein and in the Lease; provided, however, that no security interest
is granted to the Credit Entity or to the Trustee for the purpose of paying its fees or
expenses in money drawn by the Trustee under the Credit Facility to the extent such
moneys are applied to the payment of the amounts due to the Owners. The Trustee
shall be entitled to and shall collect and receive all of the Revenues, and any Revenues
collected or received by the Authority shall be deemed to be held, and to have been
collected or received, by the Authority as the agent of the Trustee and shall forthwith be
paid by the Authority to the Trustee. The Trustee also shall be entitled to and shall take
all steps, actions and proceedings reasonably necessary in its judgment to enforce,
either jointly with the Authority or separately, all of the rights of the Authority that have
been assigned to the Trustee and all of the obligations of the City under the Lease.
(c) In consideration of the acceptance of the Bonds by those who shall
own them from time to time and of entering into the Interest Rate Collar Agreement, this
Indenture shall be deemed to be and shall constitute a contract between the Authority
and the Owners from time to time of the Bonds and the Collar Provider and the
covenants and agreements herein set forth to be performed on behalf of the Authority
shall be for the equal and proportionate security and protection of all Owners of the
Bonds and the Collar Provider without preference, priority or distinction as to security or
otherwise of any of the Bonds and the Interest Rate Collar Agreement over any of the
others by reason of the number or date thereof, of the time of sale, execution and
delivery thereof, or otherwise for any cause whatsoever, except as expressly provided
therein or herein.
(d) Pursuant to the Assignment Agreement, the Authority has
transferred in trust and assigns to the Trustee, for the benefit of the Owners from time to
time of the Bonds and the Collar Provider, all of the Base Rental payments and all of the
right, title and interest of the Authority in the Lease Agreement (other than its rights to
indemnification and payment or reimbursement for any costs or expenses), including
without limitation all of the Additional Rental under the Lease Agreement and any and
all of the other rights of the Authority under the Lease Agreement as may be necessary
to enforce payment of such Lease Payments and Additional Rental when due or
otherwise to protect the interest of the Owners of the Bonds and the Collar Provider,
including its leasehold title to the Leased Property leased to the City pursuant to the
Lease Agreement. The Trustee accepts such assignments. The Trustee shall be
entitled to and shall receive all of the Base Rental payments and Additional Rental, and
41
any Base Rental payments and Additional Rental collected or received by the Authority
shall be deemed to be held, and to have been collected or received, by the Authority as
the agent of the Trustee and shall forthwith be paid by the Authority to the Trustee.
SECTION 5.03. Deposit of Revenues.
(a) There shall be deposited in the Debt Service Fund all Base Rental
(other than Prepayments, which shall be deposited in the Lease Prepayment Account of
the Redemption Fund pursuant to Section 4.01 hereof) received by the Trustee. At
least one (1) day prior to any payment date applicable to payments from the Lease
Payment Account or the Collar Payment Account, the Trustee shall further allocate such
Base Rental to the Lease Payment Account or the Collar Payment Account in the Debt
Service Fund the amounts needed to make such payments due on the following day
from such accounts as applicable. If the amount in the Debt Service Fund is insufficient
to make both such allocations on any day, the amount in the Debt Service Fund shall be
allocated pro rata to the Lease Payment Account and the Collar Payment Account
based on the amounts payable from such accounts on the following payment date.
(b) Any Collar Reimbursements received by the Trustee shall be
deposited promptly after receipt in the Collar Payment Account of the Debt Service
Fund.
(c) There shall be deposited in the Credit Facility Account of the Debt
Service Fund all amounts drawn under the Credit Facility, except for amounts drawn
thereunder with respect to Prepayments which shall be deposited in the Credit Facility
Prepayment Account of the Redemption Fund pursuant to Section 4.01 hereof and
amounts drawn thereunder with respect to the payment of the purchase price of
tendered Bonds.
SECTION 5.04. Application of Monevs.
(a) Except as provided in subsection (b) hereof, all amounts in the
Lease Payment Account of the Debt Service Fund shall be used and withdrawn by the
Trustee solely for the purpose of paying the principal of and interest on the Bonds as
the same shall become due and payable, in accordance with the provisions of Article II
and Article IV.
(b) During the term of any Credit Facility, on each Bond Payment Date,
following a draw on the Credit Facility, as provided in Section 5.05(a), and receipt of the
proceeds of such draw, the Trustee shall withdraw the amounts, if any, on deposit in the
Lease Payment Account and, to the extent moneys are owed to the Credit Entity under
the Reimbursement Agreement, pay such amounts to the Credit Entity; provided,
however, the Trustee shall not be required to pay amounts to the Credit Entity in excess
of the amount drawn on the Credit Facility unless the Credit Entity has certified to the
Trustee and to the City, in writing, the additional amounts due and owing and specifying
the section in the Reimbursement Agreement pursuant to which such additional
42
amounts are due and such additional amounts are on deposit in the Lease Payment
Account.
(c) Sources of funds for the payment of the Bonds shall be applied in
the #ollowing order of priority to pay principal and interest with respect to the Bonds:
(i) moneys deposited in the Credit Facility Account or the
Credit Facility Prepayment Account, as appropriate;
(ii) moneys on deposit in the Reserve Fund;
(iii) other Available Moneys furnished to the Trustee; and
(iv) any other money made available to the Trustee for
such purpose.
Payment of Bonds registered to or on behalf of the Credit Entity shall be made
from amounts on deposit in the Lease Payment Account of the Debt Service Fund, the
Reserve Fund and the Lease Prepayment Account of the Redemption Fund, and other
Available Moneys furnished to the Trustee and any other money made available to the
Trustee for such purpose, as applicable.
(d) All amounts in the Collar Payment Account of the Debt Service
Fund shall be used and withdrawn by the Trustee solely for the purpose of paying the
Collar Payments to the Collar Provider, or the Collar Reimbursements to the City and/or
the Authority, as the same shall become due and payable in accordance with the
provisions of the Interest Rate Collar Agreement and as directed by the Collar Provider,
absent manifest error, and with the consent of the Authority.
SECTION 5.05. Draws Under Credit Facilitv.
(a) The Trustee shall draw under the Credit Facility in accordance with
the terms thereof not later than 9:00 a.m., California time, on the Business Day prior to
the day such funds are required by the Trustee hereunder at the times, in the manner
and in an amount equal to the full amount of the installments of principal and interest
coming due on each Bond Payment Date and each date that Bonds are to be redeemed
hereunder. The Trustee shall deposit the amounts so drawn: (i) in the Credit Facility
Account and shall use the amounts therein solely to pay such principal and interest as it
comes due and (ii) in the Credit Facility Prepayment Account and shall use the amounts
therein solely to pay such redemption of Bonds in advance of their maturity, as
appropriate; provided, however, the Trustee shall not draw on the Credit Facility to
make payments due with respect to Bonds registered to or on behalf of the Credit
Entity.
(b) So long as a Credit Facility is available therefor, the Trustee shall
draw under the Credit Facility in accordance with the terms thereof not later than 8:30
a.m., California time, on the Business Day next preceding the date such funds are
required by the Trustee hereunder to the extent necessary to purchase, together with
43
moneys in the Remarketing Proceeds Account, all Bonds tendered on a Tender Date.
By no later than 4 p.m., New York time on the applicable Tender Date, the Trustee shall
send the amounts so drawn to the Tender Agent for deposit in the Liquidity Account and
the Tender Agent shall use the amounts therein solely to accomplish such purchase.
(c) The Trustee shall return the Credit Facility to the Credit Entity
following the termination or substitution of such Credit Facility.
SECTION 5.06. Application of Reserve Fund in Event of Deficiencv in Lease
Payment Account. Whether or not Lease Payments are then in abatement, if on any
Bond Payment Date, the moneys available in the Lease Payment Account are tess than
the amount of the principal and interest coming due on such Bond Payment Date on all
the Bonds then Outstanding, the Trustee shall withdraw an amount equal to the shortfall
from the Reserve Fund and deposit that amount into the Lease Payment Account. In
the event that the Reserve Fund is comprised of cash and a Qua�ified Reserve Fund
Credit Instrument, the cash in the Reserve Fund shall be transferred to the Lease
Payment Account for payment of the Bonds before any drawing may be made upon the
Qualified Reserve Fund Credit Instrument. A drawing upon a Qualified Reserve Fund
Credit Instrument under which there is available coverage shall be made after all cash
in the Reserve Fund has been applied. Under no circumstances shall moneys in the
Reserve Fund be applied for any fees due to the Trustee hereunder, or for the fees or
costs of any of its agents, attorneys or counsel incurred with respect to an Event of
Default hereunder or otherwise. The Trustee shall then notify the Authority of the
amount it has withdrawn from the Reserve Fund.
Delinquent Lease Payments received by the Trustee from the Authority
following any withdrawal from the Reserve Fund, and not needed to pay principal or
interest on the Bonds, to reimburse the Credit Entity for a drawing made under the
Credit Facility, or to pay Collar Payments, shall be deposited in and to the credit of the
Reserve Fund until the batance on deposit therein once again represents the Reserve
Requirement, or if a drawing has been made on a Qualified Reserve Fund Credit
Instrument, such Lease Payments received shall first be used to reimburse the provider
of the Qualified Reserve Fund Credit Instrument for amounts drawn thereunder to the
extent necessary to reinstate the Qualified Reserve Fund Credit Instrument to its full
coverage amount and then to replenish the cash withdrawn from the Reserve Fund.
Amounts in the Reserve Fund in excess of the Reserve Requirement shalt be
transferred to the Lease Payment Account.
SECTION 5.07. Sur lus.
(a) Any funds remaining in the Lease Payment Account after payment
of all Bonds Outstanding, or provision made therefor satisfactory to the Trustee, shall be
withdrawn by the Trustee and remitted to the Credit Entity to the extent moneys are
owed to the Credit Entity under the Reimbursement Agreement and to the Collar
Provider to the extent monies are owed to the Collar Provider under the Interest Rate
Collar Agreement, with the remainder, if any, being applied first to the payment of any
44
fees and expenses owed to the Trustee, the Remarketing Agent and the Tender Agent
and then being remitted to the City.
(b) Any funds remaining in the Credit Facility Account after payment of
all Bonds Outstanding, or provision made therefor satisfactory to the Trustee, shall be
returned to the Credit Entity.
SECTION 5.08. Investment of Monevs in Funds and Accounts. All moneys
in any of the funds and accounts established pursuant to this Indenture (other than the
Credit Facility Account, Credit Facility Prepayment Account and the Tender Fund, which
moneys shall be held uninvested) shall be invested by the Trustee solely in Authorized
Investments. Upon written request of an Authorized Representative of the Authority, the
Trustee shall invest all moneys as directed by such Authorized Representative,
provided such moneys are invested solely in Authorized Investments; provided,
however, that the Trustee shall have received at least two (2) Business Days prior to the
date of any such proposed investment or reinvestment, written directions of the
Authority specifying the Authority's request for investment or reinvestment. In the
absence of Request from the Authority, the Trustee shall invest such moneys solely in
the investments described in subparagraph (9) of the definition of "Authorized
Investments." Authorized Investments may be purchased at such prices as the Authority
may in its discretion determine. All Authorized Investments shall be acquired subject to
the limitations as to maturities hereinafter set forth in this Section and such additional
limitations or requirements consistent with the foregoing as may be established by
Request of the Authority and are consistent with the fiduciary duties of the Trustee.
Moneys in the funds and accounts shall be invested in Authorized Investments
maturing not later than the date on which it is estimated that such moneys will be
required by the Trustee or the Authority. Authorized Investments purchased under a
repurchase agreement may be deemed to mature on the date or dates on which the
Trustee may deliver such Authorized Investments for repurchase under such
agreement. Authorized Investments acquired as an investment of moneys in any fund
or account established under this Indenture shall be credited to such fund or account.
Except as otherwise provided in the last paragraph of this Section, all interest, profits
and other income received from the investment of moneys in any fund or account shall
be deposited therein. For the purpose of determining the amount in any fund, all
Authorized Investments credited to such fund shall be valued at the lesser of (i) cost
(exclusive of brokerage commissions or accrued interest, if any); (ii) the par amount
thereof; or (iii) the market value thereof.
Except for moneys held by the Trustee in the Credit Facility Account, the Credit
Facility Prepayment Account, the Tender Fund and the Liquidity Account and the
Remarketing Proceeds Account therein, the Trustee may commingle moneys on deposit
in any of the funds or accounts established pursuant to this Indenture and held by the
Trustee into a separate fund or funds for investment purposes only, provided that all
funds or accounts held by the Trustee hereunder shall be accounted for separately as
required by this Indenture. The Trustee or an affiliate may act as principal or agent in
the making or disposing of any investment and shall be entitled to its customary fees
45
therefor. The Trustee may sell at the best price obtainable, or present for redemption,
any Authorized Investments so purchased whenever it shall be necessary to provide
moneys to meet any required payment, transfer, withdrawal or disbursement from the
fund or account to which such Authorized Investment is credited, and, subject to the
provisions of Section 8.03, the Trustee shall not be liable or responsible for any loss on
any investment made pursuant to this Section or resulting from any such sale which the
Trustee reasonably makes in good faith. Any Authorized Investments that are
registerable securities shall be registered in the name of the Trustee.
The Trustee shall, using its best efforts, sell or present for redemption, any
Authorized Investment so purchased by the Trustee whenever it shall be necessary in
order to provide moneys to meet any required payment, transfer, withdrawal or
disbursement from the fund to which such Authorized Investment is credited. The
Trustee shall conclusively be deemed to have used its best efforts if the Trustee obtains
three bids and sells the Authorized Investments to the highest bidder.
The Trustee shall furnish to the Authority, not less than monthly, and to the Credit
Entity upon request, an accounting of all investments made by the Trustee. The
Trustee shall keep accurate records of all funds administered by it and all Bonds paid
and discharged.
Investment earnings in the Debt Service Fund shall first be applied to the
payment of Additional Rental. If no Additional Rental is owing, investment earnings
within the Debt Service Fund shall be transferred to the Lease Payment Account.
Unless otherwise directed herein, investment earnings in all other funds and accounts
established hereunder shall remain in such funds and accounts.
ARTICLE VI
PARTICULAR COVENANTS
SECTION 6.01. Punctual Pavment. The Authority covenants and agrees that
it will duly and punctually pay or cause to be paid the principal of and interest on each of
the Bonds together with the premium thereon, if any, on the date, at the place and in the
manner provided in said Bonds, and amounts owing to the Credit Entity under the
Reimbursement Agreement and to the Collar Provider under the Interest Rate Collar
Agreement solely from the Revenues and other funds as herein provided.
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SECTION 6.02. Extension of Pavment of Bonds. The Authority shall not
directly or indirectly extend or assent to the extension of the maturity of any of the
Bonds or to a change in the amount or time of any mandatory sinking account payment
or the time of payment of any claims for interest, whether by the purchase or funding of
such Bonds or claims of interest or by any other arrangement, and in case the maturity
of any of the Bonds or the time of payment of, or claims for, interest shall be extended,
such Bonds or claims for interest shall not be entitled, in case of any default hereunder,
to the benefits of this Indenture, except subject to the prior payment in futl of the
principal of all of the Bonds then Outstanding and of all claims for interest thereon which
shall not have been so extended. Nothing in this Section 6.02 shall be deemed to limit
the right of the Authority to issue Bonds for the purpose of refunding any Outstanding
Bonds and such issuance shall not be deemed to constitute an extension of maturity of
Bonds.
SECTION 6.03. Against Encumbrances. The Authority covenants and
agrees that it will not issue any other obligations payable as to either principal or interest
from the Revenues which have, or purport to have any lien upon the Revenues superior
to or on a parity with the lien of the Bonds.
SECTION 6.04. Aqainst Additional Indebtedness. The Authority covenants
and agrees that it will not issue any other bonds, notes or other obligations, enter into
any agreement or otherwise incur any indebtedness, which is in any case payable, as to
either principal or interest, from all or any part of Revenues.
SECTION 6.05. Power to Issue Bonds and Make Pledqe and Assiqnment.
The Authority is duly authorized to issue the Bonds and to enter into this Indenture and
to pledge and assign the Revenues and other assets purported to be pledged and
assigned, respectively, under this Indenture and the Assignment Agreement,
respectively, in the manner and to the extent provided in this Indenture. The Bonds and
the provisions of this Indenture are and will be the legally vatid and binding limited
obligations of the Authority in accordance with their terms, and the Authority and
Trustee shall at all times, to the extent permitted by law, defend, preserve and protect
said pledge and assignment of Revenues and other assets and all the rights of the
Bondowners under this Indenture against all claims and demands of all persons
whomsoever.
The Authority shall preserve and protect the security of the Bonds and the rights
of the Owners and the Credit Entity and defend their rights against all claims and
demands of all persons. Until such time as an amount has been set aside sufficient to
pay at maturity, or to call and redeem prior to maturity, all Outstanding Bonds plus
unpaid interest thereon to maturity, and to pay amounts owing to the Credit Entity under
the Reimbursement Agreement, the Authority will (through its proper members, officers,
agents or employees) faithfully perform and abide by all the covenants, undertakings
and provisions contained in this Indenture or in any Bond issued hereunder for the
benefit of the Owners and the Credit Entity.
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SECTION 6.06. Accountinc,� Records and Financial Statements. The
Authority covenants and agrees that it will at all times keep, or cause to be kept, proper
and current books and accounts (separate from all other records and accounts) in which
complete and accurate entries shall be made of all transactions relating to the
Revenues and of the funds and accounts herein provided for. Such books of record
and accounts shall at all times during business hours be subject to the inspection of the
Trustee, the Credit Entity or the Owners of not less than ten percent (10%) of the
aggregate principal amount of the Bonds then Outstanding or their representative
authorized in writing. The parties hereto acknowledge that any such books, records or
accounts will be maintained by the Trustee so long as all Base Rental Payments are
made directly from the City to the Trustee and that the Authority shall not be responsible
for keeping such books, records or accounts unless Base Rental Payments are
received by it.
5ECTION 6.07. Waiver of Laws. The Authority shall not at any time insist
upon or plead in any manner whatsoever, or claim to take the benefit or advantage of,
any stay or extension of law now or at any time hereafter in force that may affect the
covenants and agreements contained in this Indenture or in the Bonds, and all benefit
or advantage of any such law or laws is hereby expressly waived by the Authority to the
extent permitted by law.
SECTION 6.08. Waiver of Laws. The Authority shall not at any time insist
upon or plead in any manner whatsoever, or claim to take the benefit or advantage of,
any stay or extension of law now or at any time hereafter in force that may affect the
covenants and agreements contained in this Indenture or in the Bonds, and all benefit
or advantage of any such law or laws is hereby expressly waived by the Authority to the
extent permitted by law.
SECTION 6.09. Further Assurances. The Authority shall make, execute and
deliver any and all such further indentures, instruments and assurances as may be
reasonably necessary or proper to carry out the intention or to facilitate the performance
of this Indenture and for the better assuring and confirming unto the Owners of the
Bonds and the Credit Entity of the rights and benefits provided in this Indenture.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES OF BONDOWNERS
SECTION 7.01. Events of Default. The following events shall be Events of
Default:
(a) Default by the Authority in the due and punctual payment of the
principal of any Bond when and as the same shall become due and payable, whether at
maturity as therein expressed, by proceedings for redemption, by declaration or
otherwise;
48
(b) Default by the Authority in the due and punctual payment of any
installment of interest on any Bond when and as such interest installment shall become
due and payable;
(c) Default by the Authority in the observance of any of the other
covenants, agreements or conditions on its part contained in this Indenture or in the
Bonds if such default shall have continued for a period of sixty (60) days after written
notice thereof, specifying such default and requiring the same to be remedied, shall
have been given to the Authority by the Trustee, or to the Authority and the Trustee by
the Credit Entity or the Owners of not less than twenty-five percent (25%) in aggregate
principal amount of the Bonds at the time Outstanding; provided, however, that such
default shall not constitute an Event of Default hereunder if the Authority shall
commence to cure such default within said sixty-day period and thereafter diligently and
in good faith proceed to cure such default within a reasonable period of time.
(d) Default by the Authority in the due and punctual payment of any
Collar Payments when and as such payments shall become due and payable under the
Interest Rate Collar Agreement and the Lease; provided that such event shall only be
an Event of Default hereunder if the Collar Provider provides a written notice to the
Trustee of such failure to pay any Collar Payment and such failure to pay is not a result
of the Trustee's failure, due solely to an administrative error by the Trustee, to distribute
monies on deposit in the Collar Payment Account to the Collar Provider and such error
is remedied within one Business Day of notice of such failure to pay from the Collar
Provider.
SECTION 7.02. Remedies on Default. Subject to the rights of the Credit
Entity and provided that the Credit Facility is in effect and the Credit Entity is not in
default thereunder, upon the occurrence and continuance of any Event of Default
specified in Section 7.01 (a), (b), or (d), the Trustee, upon the direction of the Credit
Entity, shall proceed, or upon the occurrence and continuance of any Event of Default
specified in Section 7.01 (c) hereof, the Trustee may proceed (and upon written request
of the Credit Entity or upon written request of the Owners of not less than a majority in
aggregate principal amount of the Bonds then Outstanding and the consent of the
Credit Entity so long as the Credit Facility remains in effect and the Credit Entity is not in
default thereunder and receipt of indemnity satisfactory to the Trustee, shall proceed),
to exercise the remedies set forth in Section 10.01 of the Lease or available to the
Trustee hereunder; provided, however, that there shall be no right to accelerate
maturities of the Bonds or otherwise to declare any Base Rental not then in default to be
immediately due and payable. Upon the occurrence and continuance of any Event of
Default, the Trustee shall exercise the rights and remedies invested in it by this
Indenture with the same degree of care and skill as a prudent person would exercise or
use under the circumstances in the conduct of his or her own affairs.
SECTION 7.03. Application of Revenues and Other Funds After Default. If
an Event of Default shall occur and be continuing, all Revenues and any other funds
(other than moneys drawn under any Credit Facility which shall be deposited into the
Credit Facility Account and moneys in the Credit Facility Prepayment Account, such
49
moneys in both such accounts to be applied only to the payment of principal and
interest on the Bonds) then held or thereafter received by the Trustee under any of the
provisions of this Indenture shall be applied by the Trustee as follows and in the
following order of priority:
(1) To the payment of any expenses necessary in the opinion of
the Trustee to protect the interests of the Owners of the Bonds and payment of
all reasonable fees, charges and expenses of the Trustee incurred in and about
the performance of its powers and duties under this Indenture; and
(2) To the payment of the principal of and interest then due on
the Bonds (upon presentation of the Bonds to be paid, and stamping thereon of
the payment if only partially paid, or surrender thereof if fully paid) and the Collar
Payments, subject to the provisions of this Indenture, as follows:
First: To the payment to the Persons entitled thereto, including the Credit
Entity, of all interest then due and payable on the Bonds and all Collar
Payments then due and payable under the Interest Rate Collar
Agreement, and, if the amount available shall not be sufficient to pay in full
all such interest and Collar Payments, then to the payment thereof ratably,
according to the amounts due thereon, to the Persons entitled thereto,
without any discrimination or preference;
Second: To the payment to the Persons entitled thereto, including the
Credit Entity, of the unpaid principal of any Bonds which shall have
become due and payable, whether at maturity or by call for redemption, in
the order of their due dates, with interest on the overdue principal at the
rate borne by the respective Bonds from the respective dates upon which
such Bonds became due and payable, and, if the amount available shall
not be sufficient to pay in full all the principal of the Bonds due on any
date, together with such interest, then to the payment first of such interest,
ratably, according to the amount of interest due on such date, and then to
the payment of such principal, ratably, according to the amounts of
principal due on such date to the Persons entitled thereto, without any
discrimination or preference; and
Third: To the payment of the interest on and the principal of the Bonds, the
purchase and retirement of the Bonds and to the redemption of the Bonds,
all in accordance with the provisions of this Indenture.
(3) To the payment of any obligations due and owing to the
Credit Entity under the Reimbursement Agreement.
SECTION 7.04. Trustee to Represent Bondowners. The Trustee is hereby
irrevocably appointed (and the successive respective Owners of the Bonds, by taking
and holding the same, shall be conclusively deemed to have so appointed the Trustee)
as trustee and true and lawful attorney-in-fact of the Owners of the Bonds for the
50
purpose of exercising and prosecuting on their behalf such rights and remedies as may
be available to such Owners under the provisions of the Bonds, this Indenture, and
applicable provisions of the Law. Upon the occurrence and continuance of an Event of
Default or other occasion giving rise to a right in the Trustee to represent the
Bondowners, the Trustee in its discretion may with the consent of the Credit Entity so
long as the Credit Facility remains in effect and the Credit Entity is not in default
thereunder, and upon the written request of the Owners of not less than a majority in
aggregate principal amount of the Bonds then Outstanding and with the consent of the
Credit Entity so long as the Credit Facility remains in effect and the Credit Entity is not in
default thereunder, and upon being indemnified to its satisfaction therefor, shall,
proceed to protect or enforce its rights or the rights of such Owners by such appropriate
action, suit, mandamus or other proceedings as it shall deem most effectual to protect
and enforce any such right, at taw or in equity, either for the specific performance of any
covenant or agreement contained herein, or in aid of the execution of any power herein
granted, or for the enforcement of any other appropriate legal or equitable right or
remedy vested in the Trustee or in such Owners under this Indenture or any law; and
upon instituting such proceeding, the Trustee shall be entitled, as a matter of right, to
the appointment of a receiver of the Revenues and other assets pledged under this
Indenture or the Bonds pending such proceedings. The foregoing is not intended in any
way to abrogate the rights of the Collar Provider, with respect to timing, priority and
amount of payment hereunder, or otherwise, and the Trustee's obligations hereunder
with respect to such rights.
All rights of action under this Indenture or the Bonds or otherwise may be
prosecuted and enforced by the Trustee without the possession of any of the Bonds or
the production thereof in any proceeding relating thereto, and any such suit, action or
proceeding instituted by the Trustee shall be brought in the name of the Trustee for the
benefit and protection of all the Owners of such Bonds, subject to the provisions of this
Indenture.
SECTION 7.05. Bondowners' Direction of Proceedinas. Subject to the prior
rights of the Credit Entity to direct proceedings, anything in this Indenture to the contrary
notwithstanding, the Owners of a majority in aggregate principal amount of the Bonds
then Outstanding shall have the right, by an instrument or concurrent instruments in
writing executed and delivered to the Trustee, to direct the method of conducting all
remedial proceedings taken by the Trustee hereunder, provided that such direction shall
not be otherwise than in accordance with law and the provisions of this Indenture, and
that the Trustee shall have the right to decline to follow any such direction which in the
opinion of the Trustee would be unjustly prejudicial to Bondowners not parties to such
direction.
SECTION 7.06. Limitation on Bondowners' Riqht to Sue. No Owner of any
Bond shall have the right to institute any suit, action or proceeding at law or in equity, for
the protection or enforcement of any right or remedy under this Indenture or any
applicable law with respect to such Bond unless (1) such Owner previously shall have
given to the Trustee and the Credit Entity written notice of the occurrence of an Event of
Default; (2) the Owners of not less than twenty-five percent (25%) in aggregate principal
51
amount of the Bonds then Outstanding shall have made written request upon the
Trustee to exercise the powers hereinbefore granted or to institute such suit, action or
proceeding in its own name; (3) such Owner or said Owners shall have tendered to the
Trustee reasonable indemnity in adequate form against the costs, expenses and
liabilities to be incurred in compliance with such request; and (4) the Trustee shall have
refused or omitted to comply with such request for a period of sixty (60) days after such
written request shall have been received by, and said tender of indemnity shall have
been made to, the Trustee, and in every case, the Credit Entity shall have approved
such request so long as the Credit Facility is in effect and the Credit Entity is not in
default thereunder.
Such notification, request, tender of indemnity and refusal or omission are hereby
declared, in every case, to be conditions precedent to the exercise by any Owner of
Bonds of any remedy hereunder or under law; it being understood and intended that no
one or more Owners of Bonds shall have any right in any manner whatsoever by his or
their action to affect, disturb or prejudice the security of this Indenture or the rights of
any other Owners of Bonds, or to enforce any right under this Indenture or applicable
law with respect to the Bonds, except in the manner herein provided, and that all
proceedings at law or in equity to enforce any such right shall be instituted, had and
maintained in the manner herein provided and for the benefit and protection of all
Owners of the Outstanding Bonds, subject to the provisions of this Indenture.
SECTION 7.07. Absolute Obliqation of Authoritv. Nothing in Section 7.06 or
in any other provision of this Indenture, or in the Bonds, contained, shall affect or impair
the obligation of the Authority, which is absolute and unconditional, to pay the principal
of and interest on the Bonds to the respective Owners of the Bonds at their respective
dates of maturity or upon call for redemption, as herein provided, but only out of the
Revenues and other assets herein pledged therefor, or affect or impair the right of such
Owners, which is also absolute and unconditional, to enforce such payment by virtue of
the contract embodied in the Bonds.
SECTION 7.08. Termination of Proceedina. In case any proceedings taken
by the Trustee or any one or more Bondowners on account of any Event of Default shall
have been discontinued or abandoned for any reason or shall have been determined
adversely to the Trustee or the Bondowners, then in every such case the Authority, the
Trustee, the Credit Entity and the Bondowners, subject to any determination in such
proceedings, shall be restored to their former positions and rights hereunder, severally
and respectively, and all rights, remedies, powers and duties of the Authority, the
Trustee, the Credit Entity and the Bondowners shall continue as though no such
proceedings had been taken.
SECTION 7.09. Remedies Not Exclusive. No remedy herein conferred upon
or reserved to the Trustee or to the Owners of the Bonds or the Credit Entity is intended
to be exclusive of any other remedy or remedies, and each and every such remedy, to
the extent permitted by law, shall be cumulative and in addition to any other remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
52
SECTION 7.10. No Waiver of Default. No delay or omission of the Trustee,
the Credit Entity or of any Owner of the Bonds to exercise any right or power arising
upon the occurrence of any Event of Default shall impair any such right or power or
shall be construed to be a waiver of any such default or an acquiescence therein; and
every power and remedy given by this Indenture to the Trustee, the Credit Entity or to
the Owners of the Bonds may be exercised from time to time and as often as may be
deemed expedient.
SECTION 7.11. Riqhts of Credit Entitv. Notwithstanding any other provision
of this Indenture, so long as the Credit Facility is in effect and the Credit Entity is not in
default thereunder or any amounts remain owing to the Credit Entity, the Credit Entity
shall be subrogated to the rights of any Owners to the extent that it has paid the
principal or interest represented by the Bonds of such Owners.
ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Appointment Duties and Immunities of Trustee.
(a) The Authority hereby appoints Wells Fargo Bank, National
Association, as Trustee and designates the Principal Office as the principal place of
payment for the Bonds, such appointment and designation to remain in effect until
notice of change is filed with the Trustee. The Trustee shall, prior to an Event of
Default, and after the curing of all Events of Default which may have occurred, perforrn
such duties and only such duties as are specifically set forth in this Indenture. The
Trustee shall, during the existence of any Event of Default (which has not been cured),
exercise such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(b) The Authority, with the consent of the City, and subject to the prior
written consent of the Credit Entity, may remove the Trustee at any time upon thirty (30)
days written notice to the Trustee unless an Event of Default shall have occurred and
then be continuing, and shall remove the Trustee if at any time requested to do so by an
instrument or concurrent instruments in writing signed by the Owners of not less than a
majority in aggregate principal amount of the Bonds then Outstanding (or their attorneys
duly authorized in writing) or if at any time, to the knowledge of the Authority, the
Trustee shall cease to be eligible in accordance with subsection (e) of this Section 8.01
or shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or its property shall be appointed, or any public officer shall take
control or charge of the Trustee or its property or affairs for the purpose of rehabilitation,
conservation or liquidation; in each case by giving written notice of such removal to the
Trustee, and thereupon shall appoint a successor Trustee by an instrument in writing.
(c) The Trustee may at any time resign by giving written notice of such
resignation to the Authority, the City, the Credit Entity and by giving the Bondowners
53
notice of such resignation by mail at their addresses appearing on the bond registration
books maintained by the Trustee. Upon receiving such notice of resignation, the
Authority, with the approval of the City, and subject to the prior written approval of the
Credit Entity, shall promptly appoint a successor Trustee by an instrument in writing.
(d) Any removal or resignation of the Trustee and appointment of a
successor Trustee shall become effective only upon acceptance of appointment by the
successor Trustee. If no successor Trustee shall have been appointed and have
accepted appointment within forty-five (45) days after the Authority has given a notice of
removal or has received a notice of resignation as aforesaid, the resigning Trustee or
any Bondowner (on behalf of himself and all other Bondowners) may petition any court
of competent jurisdiction for the appointment of a successor Trustee, and such court
may thereupon, after such notice (if any) as it may deem proper, appoint such
successor Trustee. Any resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective upon transfer of the Credit Facility to the
successor Trustee in accordance with the provisions of the Credit Facility and the
Reimbursement Agreement, and the acceptance of appointment and assumption of the
Trustee's duties by the successor Trustee. Upon such acceptance and assumption, the
successor Trustee shall mail notice thereof to the Credit Entity, Moody's if the Bonds
are rated by Moody's, S&P if the Bonds are rated by S&P, and the Owners at their
respective addresses set forth in the Bond registration books maintained pursuant to the
Indenture. Any successor Trustee appointed under this Indenture shall signify its
acceptance of such appointment by executing and delivering to the Authority and to its
predecessor Trustee a written acceptance thereof, and thereupon such successor
Trustee, without any further act, deed or conveyance, shall become vested with all the
moneys, estates, properties, rights, powers, trusts, duties and obligations of such
predecessor Trustee, with like effect as if originally named Trustee herein; but,
nevertheless, at the Request of the Authority or the request of the successor Trustee,
such predecessor Trustee shall execute and deliver any and all instruments of
conveyance or further assurance and do such other things as may reasonably be
required for mare fully and certainly vesting in and confirming to such successor Trustee
all the right, title and interest of such predecessor Trustee in and to any property held by
it under this Indenture and shall pay over, transfer, assign and deliver to the successor
Trustee any money or other properly subject to the trusts and conditions herein set
forth. Upon request of the successor Trustee, the Authority shall execute and deliver
any and all instruments as may be reasonably required for more fully and certainly
vesting in and confirming to such successor Trustee all such moneys, estates,
properties, rights, powers, trusts, duties and obligations.
(e) The Trustee, and any Trustee appointed under the provisions of
this Section 8.01 in succession to the Trustee, shall be a trust company or bank having
the powers of a trust company, having a corporate trust office in California, having (or,
in the case of a corporation or trust company included in a bank holding company
system, the related bank holding company shall have) a combined capital and surplus
of at least fifty million dollars ($50,000,000), and subject to supervision or examination
by federal or state authority. If such bank or trust company publishes a report of
condition at least annually, pursuant to law or to the requirements of any supervising or
54
examining authority above referred to, then for the purpose of this subsection the
combined capital and surplus of such bank or trust company shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in accordance with
the provisions of this subsection (e), the Trustee shall resign immediately in the manner
and with the effect specified in this Section 8.01.
SECTION 8.02. Merqer or Consolidation. Any company into which the
Trustee may be merged or converted or with which it may be consolidated or any
company resulting from any merger, conversion or consolidation to which it shall be a
party or any company to which the Trustee may sell or transfer all or substantially all its
corporate trust business, provided such company shall be eligible under subsection (e)
of Section 8.01, shall be the successor to such Trustee, without the execution or filing of
any paper or any further act, anything herein to the contrary notwithstanding, except
that it shall comply with any terms stated with respect to such an event in the Credit
Facility.
SECTION 8.03. Liabilitv of Trustee. The recitals of facts herein and in the
Bonds shall be taken as statements of the Authority, and the Trustee assumes no
responsibility for the correctness of the same, and makes no representations as to the
validity or sufficiency of this Indenture or of the Bonds, and shall incur no responsibility
in respect thereof other than in connection with the duties or obligations herein or in the
Bonds assigned to or imposed upon it. The Trustee shall, however, be responsible for
its representations contained in its Certificate of Authentication on the Bonds. The
Trustee shall not be liable in connection with the performance of its duties hereunder,
except for its own negligence or default. The Trustee may become the owner of Bonds
with the same rights it would have if it were not Trustee, and, to the extent permitted by
law, may act as depository for and permit any of its officers or directors to act as a
member of, or in any other capacity with respect to, any committee formed to protect the
rights of Bondowners, whether or not such committee shall represent the Owners of a
majority in principal amount of the Bonds then Outstanding. The Trustee shall not be
responsible for monitoring the City's compliance with the insurance requirements set
forth in the Lease.
(b) The Trustee shall not be liable for any error of judgment made in
good faith by a responsible officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts.
(c) The Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the Owners of
not less than a majority in aggregate principal amount of the Bonds at the time
Outstanding or the Credit Entity relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture.
(d) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or direction of any of
55
the Bondowners pursuant to the provisions of this Indenture unless such Bondowners
shall have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; provided, the Trustee
shall not be entitled to require any such security or indemnity as a condition to drawing
on the Credit Facility pursuant to the terms of this Indenture.
(e) The Trustee shall have no responsibility, opinion or liability with
respect to any information, statement or recital in any offering memorandum or other
disclosure material prepared or distributed with respect to the issuance of the Bonds.
(f� No provision of this Indenture shall require the Trustee to advance,
expend or risk its own funds or otherwise incur any financial liability in the performance
or exercise of any of its duties hereunder, or in the exercise of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(g) The Trustee's rights to immunities and protection from liability
hereunder and its rights to payment of its fees and expenses shall survive its
resignation or removal and final payment or defeasance of the Bonds. All
indemnifications and releases from liability granted herein to the Trustee shall extend to
the directors, officers, employees and agents of the Trustee.
(h) The Trustee shall not be deemed to have knowledge of any Event
of Default hereunder or under the Lease unless and until it shall have actual knowledge
thereof.
(i) The Trustee shall not be considered in breach of or in default in its
obligations hereunder or progress in respect thereto in the event of enforced delay
("unavoidable delay") in the performance of such obligations due to unforeseeable
causes beyond its control and without its fault or negligence, including, but not limited
to, Acts of God or of the public enemy or terrorists, acts of a government, acts of the
other party, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes,
earthquakes, explosion, mob violence, riot, inability to procure or general sabotage or
rationing of labor, equipment, facilities, sources of energy, material or supplies in the
open market, litigation or arbitration involving a party or others relating to zoning or
other governmental action or inaction pertaining to the project, malicious mischief,
condemnation, and unusually severe weather or delays of supptiers or subcontractors
due to such causes or any similar event and/or occurrences beyond the control of the
Trustee.
SECTION 8.04. Riqht of Trustee to Relv on Documents. The Trustee shall
be protected in acting upon any facsimile transmission, electronic mail, notice,
resolution, requisition, request, consent, order, statement, certificate, report, opinion,
bond or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties. The Trustee may consult with counsel with
regard to legal questions, and the opinion of such counsel shall be full and complete
56
authorization and protection in respect of any action taken or suffered by it hereunder in
good faith and in accordance therewith.
The Trustee shall not be bound to recognize any person as the Owner of a Bond
unless and until such Bond is submitted for inspection, if required, and his title thereto is
satisfactorily established, if disputed.
Whenever in the administration of the trusts imposed upon it by this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a Certificate of the Authority, and such certificate shall be full
warrant to the Trustee for any action taken or suffered in good faith under the provisions
of this Indenture in reliance upon such certificate, but in its discretion the Trustee may,
in lieu thereof, accept other evidence of such matter or may require such additional
evidence as to it may seem reasonable.
The Trustee agrees to accept and act upon facsimile transmission of written
instructions and/or directions pursuant to this Indenture provided, however, that: (a)
subsequent to such facsimile transmission of written instructions and/or directions the
Trustee shall forthwith receive the originally executed instructions and/or directions, (b)
such originally executed instructions and/or directions shall be signed by a person as
may be designated and authorized to sign for the party signing such instructions and/or
directions, and (c) the Trustee shall have received a current incumbency certificate
containing the specimen signature of such designated person.
SECTION 8.05. Preservation and Inspection of Documents. All documents
received by the Trustee under the provisions of this Indenture shall be retained in its
possession so long as any Bonds remain Outstanding and shall be subject at all
reasonable times to the inspection of the Authority, the Credit Entity and any
Bondowner, and their agents and representatives duly authorized in writing, upon
reasonable notice and under reasonable conditions.
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SECTION 8.06. Compensation and Indemnification. The Authority shall pay,
but solely out of payments received from the City as Additional Rental, to the Trustee
from time to time reasonable compensation for all services rendered under this
Indenture in accordance with the letter proposal from the Trustee approved by the
Authority and also all reasonable expenses, charges, legal and consulting fees and
other disbursements and those of its attorneys, agents and employees, incurred in and
about the performance of its powers and duties under this Indenture. Upon the
occurrence of an Event of Default, the Trustee shall have a first lien on the Revenues
and all funds and accounts held by the Trustee hereunder to secure the payment to the
Trustee of all fees, costs and expenses, including reasonable compensation to its
experts, attorneys and counsel incurred in declaring such Event of Default and in
exercising the rights and remedies set forth in Article VII hereof, except the Trustee
shall have no lien on any moneys held on deposit in the Credit Facility Account, the
Credit Facility Prepayment Account, any moneys held by the Tender Agent in the Credit
Facility Account or the Remarketing Proceeds Account or on any draws under the
Credit Facility or any moneys held by the Trustee to satisfy the requirements of Section
10.02 hereof.
The Authority shall to the extent permitted by law indemnify and save the
Trustee, the Remarketing Agent and the Tender Agent, their its officers, employees,
directors and agents harmless from and against all claims, losses, costs, expenses,
liability and damages, including legal fees and expenses arising out of the Trustee's, the
Remarketing Agent's or the Tender Agent's exercise and performance of their powers
and duties hereunder. Such indemnification shall include the costs and expenses of
defending against any claim or liability arising under the Indenture. No indemnification
will be made for willful misconduct or negligence by the Trustee, the Remarketing Agent
and the Tender Agent, their officers or employees. The Authority's obligations
hereunder shall remain valid and binding notwithstanding maturity and payment of the
Bonds or resignation or removal of the Trustee.
SECTION 8.07. Remarketinq Agent. The Authority shall appoint the
Remarketing Agent for the Bonds, subject to the conditions set forth in Section 8.08
hereof. The Remarketing Agent shall designate its principal office to the Trustee, the
Credit Entity and the Tender Agent and signify its acceptance of the duties and
obligations imposed upon it hereunder and under the Lease by a written instrument of
acceptance delivered to the City, the Credit Entity and the Trustee under which the
Remarketing Agent will agree, particularly:
(a) to keep such books and records as shall be consistent with prudent
industry practice and to make such books and records available for inspection by the
City, the Trustee, the Credit Entity and the Authority at all reasonable times and upon
reasonable notice; and
(b) otherwise to perform and observe all duties and obligations herein
and in the Remarketing Agreement imposed upon the Remarketing Agent.
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The Authority shall cooperate with the Trustee, the Tender Agent and the City to
cause the necessary arrangements to be made and to be thereafter continued whereby
funds from the sources specified herein and in the Lease will be made available for the
purchase of Bonds presented to the Trustee or the Tender Agent and whereby Bonds,
executed by the Trustee or the Tender Agent, will be remarketed by the Remarketing
Agent.
SECTION 8.08. Qualifications of Remarketinq Aqent. Any successor
Remarketing Agent shall be (a) a commercial bank or trust company or (b) a member of
the National Association of Securities Dealers, Inc., having a capitalization of at least
$5,000,000 and authorized by law to perform all the duties imposed upon it by this
Indenture. The Remarketing Agent may at any time resign and be discharged of the
duties and obligations created by this Indenture by giving notice to the Authority, the
Tender Agent, the City, the Credit Entity and the Trustee. Upon receiving such notice of
resignation, the Authority shall promptly appoint a successor Remarketing Agent subject
to the prior written consent of the Credit Entity. Subject to the prior written consent of
the Credit Entity, the Remarketing Agent may be removed by an instrument, signed by
the Authority, filed with the Remarketing Agent, the Tender Agent, the Credit Entity, the
City, Moody's if the Bonds are rated by Moody's, S&P if the Bonds are rated by S&P,
and the Trustee.
In the event of the resignation or removal of the Remarketing Agent, the
Remarketing Agent shall pay over, assign and deliver any moneys and Bonds held by it
in such capacity to its successor or, if there be no successor, to the Trustee. Any
resignation or removal of the Remarketing Agent shall be effective only upon the
appointment of a successor Remarketing Agent and acceptance by the successor
Remarketing Agent of such appointment, and appointment of a successor Remarketing
Agent shall become effective immediately upon delivery of the required notice and
acceptance by the successor Remarketing Agent of such appointment.
SECTION 8.09. Tender Agent. The Authority hereby appoints Wells Fargo
Bank, National Association, as the initial Tender Agent and shall appoint any successor
Tender Agent, subject to the conditions set forth in Section 8.10 hereof. The Tender
Agent shall designate to the Trustee, the Remarketing Agent, the Credit Entity and the
Authority its principal office and signify its acceptance of the duties and obligations
imposed upon it hereunder by a written instrument of acceptance delivered to the
Authority, the Credit Entity and the Trustee under which the Tender Agent will agree,
particularly:
(a) to keep such books and records as shall be consistent with prudent
industry practice and to make such books and records available for inspection by the
City, the Trustee, the Credit Entity the Remarketing Agent and the Authority at all
reasonable times upon reasonable notice; and
(b) otherwise to perform and observe all duties and obligations herein
imposed upon the Tender Agent.
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Whenever in this Indenture, certain rights or duties are conferred upon the
Tender Agent, and no Tender Agent is appointed, such rights and duties shall be
performed by the Trustee.
In the event that the Authority fails to appoint a Tender Agent hereunder, or in the
event that the Tender Agent shall resign or be removed, or be dissolved, or if the
property or affairs of the Tender Agent shall be taken under the control of any state or
federal court or administrative body because of bankruptcy or insolvency, or for any
other reason, and the Authority shall not have appointed a successor, the Trustee,
notwithstanding the provisions of the first paragraph of this Section, shall be deemed to
be the Tender Agent for all purposes of this Indenture until the appointment of a
successor Tender Agent, as the case may be, notwithstanding the fact that the Trustee
may not meet the qualifications set forth in the first paragraph of this Section 8.08.
SECTION 8.10. Qualifications of Tender Agent. The Tender Agent shall be a
bank with trust powers or a trust company with an office in San Francisco, California or
Los Angeles, California and any successor thereto shall have the same qualifications
required of the Trustee pursuant to Section 8.01(e) hereof, except that the Tender
Agent need have a combined capital and surplus of only Ten Million Dollars
($10,000,000), and such Tender Agent shall be authorized by law to perform all the
duties imposed upon it by this Indenture. The Tender Agent may at any time resign and
be discharged of the duties and obligations created by this Indenture by giving at least
sixty (60) days prior written notice to the City, the Credit Entity, the Remarketing Agent,
the Trustee and the Authority. Upon receiving such notice of resignation, the Authority
shall promptly appoint a successor Tender Agent subject to the prior written consent of
the Credit Entity. In the event the City does not name a successor Tender Agent within
30 days of receipt of notice of the Tender Agent's resignation, then the Tender Agent
may petition a court of suitable jurisdiction to seek the immediate appointment of a
successor Tender Agent. Subject to the prior written consent of the Credit Entity, the
Tender Agent may be removed at any time, with the approval of the Authority by an
instrument, signed by the Authority, filed with the Tender Agent, the Remarketing Agent,
the Trustee, the Credit Entity and the Authority. Any resignation or removal of the
Tender Agent and appointment of a successor Tender Agent shall become effective
upon acceptance of appointment and assumption of the Tender Agent's duties by the
successor Tender Agent.
SECTION 8.11. Co-Trustees.
(a) At any time, for the purpose of ineeting the legal requirements of
any applicable jurisdiction, the Trustee shall have power to appoint one or more persons
to act as co-trustee under this Indenture, with such powers as may be provided in the
instrument of appointment, and to vest in such person or persons any property, title,
right or power deemed necessary or desirable, subject to the remaining provisions of
this Section.
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(b) Each co-trustee shall, to the extent permitted by applicable law, be
appointed subject to the following terms:
(1) The rights, powers, duties and obligations conferred or
imposed upon any such co-trustee shall not be greater than those conferred or
imposed upon the Trustee, and such rights and powers shall be exercisable only
jointly with the Trustee, except to the extent that, under any law of any jurisdiction
in which any particular act or acts are to be performed, the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such rights
and powers shall be exercised by such co-trustee subject to the provisions of
Section 8.11(b)(4) hereof.
(2) The Trustee may at any time, by an instrument in writing
executed by it, accept the resignation of or remove any co-trustee appointed
under this Section 8.11.
(3) No co-trustee under this Indenture shall be liable by reason
of any act or omission of any other co-trustee appointed under this Indenture.
(4) No power given to such co-trustee shall be separately
exercised hereunder by such co-trustee except with the consent in writing of the
Trustee, anything herein contained to the contrary notwithstanding.
(c) The provisions of Section 8.06 hereof shall extend to any co-
trustee, its officers, employees, agents, successors and assigns appointed hereunder.
ARTICLE IX
MODIFICATION OR AMENDMENT OF INDENTURE AND LEASE
SECTION 9.01. Amendments Permitted.
(a) With Consent. After first requesting and obtaining the prior written
approval of the Credit Entity, this Indenture and the rights and obligations of the Owners
of the Bonds and the Lease and the rights and obligations of the parties thereto, may be
modified or amended at any time by a supplement which shall become effective when
the written consents of the Owners of at least a majority in aggregate principal amount
of the Bonds then Outstanding, exclusive of Bonds disqualified as provided in
Section 9.03 hereof, shall have been filed with the Trustee and Moody's if the Bonds are
rated by Moody's or S&P if the bonds are rated by S&P. No such modification or
amendment shall (1) extend or have the effect of extending the fixed maturity of any
Bond or reducing the interest rate with respect thereto or extending the time of payment
of interest, or reducing the amount of principal thereof or reducing any premium payable
upon the redemption thereof, without the express consent of the Owner of such Bond,
or (2) reduce or have the effect of reducing the percentage of Bonds required for the
affirmative vote or written consent to an amendment or modification of this Indenture or
the Lease, (3) modify any of the rights or obligations of the Trustee without its written
assent thereto, or (4) materially adversely affect the rights of the Collar Provider unless
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the Collar Provider shall have also consented in writing to such modification or
amendment. Any such supplemental agreement shall become effective as provided in
Section 9.02 hereof.
(b) Without Consent. This Indenture and the rights and obligations of
the Owners of the Bonds, and the Lease and the rights and obligations of the parties
thereto, may be modified or amended at any time by a supplemental agreement, without
the consent of any such Owners, but with the written consent of the Credit Entity and
only to the extent permitted by law and only (1) to cure, correct or supplement any
ambiguous or defective provision contained herein or therein, and which shall not
adversely affect the interest of the Owners of the Bonds, (2) to reflect the comments of
S&P and/or Moody's in order to maintain any applicable rating on the Bonds, or (3) in
regard to matters arising hereunder or thereunder, as the parties hereto or thereto may
deem necessary or desirable and which shall not adversely affect the interest of the
Owners of the Bonds or the interests of the Collar Provider. Any such supplemental
agreement shall become effective upon execution and delivery by the parties hereto or
thereto as the case may be and shall be provided to Moody's, if the Bonds are rated by
Moody's or S&P, if the Bonds are rated by S&P.
5ECTION 9.02. Procedure for Amendment with Written Consent of Bond
Owners. This Indenture or the Lease may be amended by supplemental agreement as
provided in this Section 9.02 in the event the consent of the Owners of the Bonds and
the Credit Entity is required pursuant to Section 9.01(a) hereof. A copy of such
supplemental agreement, together with a request to the Owners of the Bonds for their
consent thereto, shall be mailed first class mail by the Trustee to the Credit Entity and to
each Owner of a Bond at his address as set forth in the Bond registration books
maintained, but failure to receive copies of such supplemental agreement and request
so mailed shall not affect the validity of the supplemental agreement when assented to
as in this Section provided.
Such supptemental agreement shall not become effective unless there shall be
filed with the Trustee the written consent of the Owners of at least a majority in
aggregate principal amount of the Bonds then Outstanding (exclusive of Bonds
disqualified as provided in Section 9.03 hereof) and of the Credit Entity and notices shall
have been mailed as hereinafter in this Section provided. Each such consent by the
Owners of the Bonds shall be effective only if accompanied by proof of ownership of the
Bonds for which such consent is given. Any such consent shall be binding upon the
Owner of the Bond giving such consent and on any subsequent Owner (whether or not
such subsequent Owner has notice thereof) unless such consent is revoked in writing
by the Owner giving such consent or a subsequent Owner by filing such revocation with
the Trustee prior to the date when the supplemental agreement has become effective.
After the Owners of the required percentage of Bonds and the Credit Entity shall
have filed their consents to such supplemental agreement, the Trustee shall mail a
notice to the Owners of the Bonds in the manner hereinbefore provided in this
Section for the mailing of such supplemental agreement, stating in substance that such
supplemental agreement has been consented to by the Owners of the required
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percentage of Bonds and will be effective as provided in this Section (but failure to mail
copies of said notice shall not affect the validity of such supplemental agreement or
consents thereto). A record, consisting of the papers required by this Section to be
filed with the Trustee, shall be proof of the matters therein stated until the contrary is
proved.
SECTION 9.03. Disqualified Bonds. Bonds owned or held by or for the
account of the City or the Authority or by any person directly or indirectly controlled or
controlled by, or under direct or indirect common control with the City or the Authority
(except any Bonds held in any pension or retirement fund) shall not be deemed
Outstanding for the purpose of any vote, consent, waiver or other action or any
calculation of Outstanding Bonds provided for in this Indenture, and shall not be entitled
to vote upon, consent to, or take any other action provided for in this Agreement except
that for purposes of determining whether the Trustee shall be protected in relying on
such vote, consent, waiver or other action, only Bonds so owned of which the Trustee
has knowledge shall be disqualified.
SECTION 9.04. Effect of Supplemental Aqreement. From and after the time
any supplemental agreement becomes effective pursuant to this Article IX, this
Indenture or the Lease, as the case may be, shall be deemed to be modified and
amended in accordance therewith, the respective rights, duties and obligations of the
parties hereto or thereto and alt Owners of Bonds Outstanding and the Credit Entity, as
the case may be, shall thereafter be determined, exercised and enforced hereunder and
thereunder subject in all respects to such modification and amendment, and all the
terms and conditions of any supplemental agreement shall be deemed to be part of the
terms and conditions of this Indenture or the Lease, as the case may be, for any and all
purposes.
The Authority or the Trustee may adopt appropriate regulations to require each
Owner, before his consent provided for in this Article IX shall be deemed effective, to
reveal if the Bonds as to which such consent is given are disqualified as provided in
Section 9.03 hereof.
SECTION 9.05. Endorsement or Replacement of Bonds Delivered After
Amendments. The Trustee may determine that Bonds delivered after the effective date
of any action taken as provided in this Article IX shall bear a notation, by endorsement,
in form approved by the Trustee, as to such action. In that case, upon demand of the
Owner of any Outstanding Bond at such effective date and presentation of his Bond for
the purpose at the Principal Office, a suitable notation shall be made on such Bond at
the cost of the Authority. The Trustee may determine that new Bonds, so modified as in
the opinion of the Trustee is necessary to conform to such Bond Owners' action, shall
be prepared, executed and delivered. In that case, upon demand of the Owner of any
Bond then Outstanding, such new Bond shall be exchanged in the Principal Office,
without cost to such Owner, for a Bond of the same character then Outstanding, upon
surrender of such Bond at the cost of the Authority.
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5ECTION 9.06. Amendatory Endorsement of Bonds. Subject to Section 9.01
hereof, the provisions of this Article IX shall not prevent any Bond Owner from accepting
any amendment as to the particular Bonds held by him, provided that due notification
thereof is made on such Bonds.
SECTION 9.07. Consent of Credit Entitv Required. Notwithstanding anything
in this Indenture to the contrary, no amendment or supplement to this Indenture or the
Lease shall become effective unless first approved by the Credit Entity, which approval
shall not be unreasonably withheld.
ARTICLE X
DEFEASANCE
SECTION 10.01. Discharqe of Indenture. The Bonds may be paid, in whole or
in part, by the Authority in any of the following ways, provided that the Authority also
pays or causes to be paid any other sums payable hereunder by the Authority:
(a) by well and truly paying or causing to be paid the principal of and
interest and redemption premiums, if any, on such Bond, as and when the same
become due and payable;
(b) if prior to maturity and having given notice of redemption (which
redemption date shall be the first available redemption date) by irrevocably depositing
with the Trustee, in trust, at or before maturity, an amount of cash which, together with
amounts then on deposit in the Lease Payment Account and available for such purpose,
is sufficient to pay in Available Moneys all principal of and interest (which shall be
calculated at the Maximum Rate if the Bonds bear interest at a Weekly Rate or Annual
Rate) and redemption premiums, if any, on such Bonds; provided, if such Bonds have
not been converted to bear interest at the Fixed Rate, the Authority shall obtain a Rating
Confirmation with respect to such Bonds prior to the establishment of such escrow; or
(c) by irrevocably depositing with the Trustee, in trust, noncallable
Authorized Investments described in paragraph (1) or (2) of the definition thereof
purchased with Available Moneys, together with cash, if required, in such amount as will
in the opinion of an independent certified public accountant, together with interest to
accrue thereon and moneys then on deposit in the Lease Payment Account and
available for such purpose, together with the interest to accrue thereon, be fully
sufficient to pay and discharge in Available Moneys all principal of and interest (which
shall be calculated at the Maximum Rate if the Bonds bear interest at a Weekly Rate or
Annual Rate) and redemption premiums, if any, on such Bond; provided, if such Bonds
have not been converted to bear interest at the Fixed Rate, the Authority shall obtain a
Rating Confirmation with respect to such Bonds prior to the establishment of such
escrow.
If all Outstanding Bonds shall be paid in one or more of the preceding
ways, all amounts shall have been paid to the Credit Entity and the Collar Provider and
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all Additional Rental shall have been paid or arrangements satisfactory to the Trustee
shall have been made for the payment of such Additional Rental, then, notwithstanding
that any Bonds shall not have been surrendered for payment, this Indenture and the
pledge of Revenues and other assets made under this Indenture with respect to such
Bonds and all covenants, agreements and other obligations of the Authority and the
Trustee under this Indenture with respect to such Bonds shall cease, terminate, become
void and be completely discharged and satisfied, except only the obligation of the
Trustee to pay or cause to be paid, from Base Rental paid by or on behalf of the City
from funds deposited pursuant to paragraphs (b) and (c) of this Section, to the Owners
of the Bonds not so surrendered and paid all sums due with respect thereto.
Any funds held by the Trustee, at the time of the defeasance of all Outstanding
Bonds, which are not required for payment as required therein, shall be paid over to the
Credit Entity to the extent of any amounts owed under the Reimbursement Agreement,
then to the Trustee to pay any amounts owed to the Trustee under this Indenture, and
the remainder, if any, shall be paid over to the City.
During the term of any Credit Facility, prior to or at the time of a deposit pursuant
to paragraph (b) or (c) of this Section, there shall be delivered to the Trustee an opinion
of nationally recognized bankruptcy counsel to the effect that payments to the Owners
of Bonds defeased from such Available Moneys or draws under the Credit Facility on
deposit with the Trustee will not constitute avoidable preferences under Title 11 and
Title 9 of the United States Bankruptcy Code upon the occurrence of an Event of
Bankruptcy.
SECTION 10.02. Payment of Bonds After Discharqe of Indenture. In any
event any Bond shall not be presented for payment when the principal with respect
thereof becomes due, either at maturity, or at the date fixed for redemption thereof, if
moneys sufficient to pay such Bond shall have been deposited in the Credit Facility
Account or if Available Moneys sufficient to pay such Bond shall have been deposited in
the Lease Payment Account, all liability of the Authority to the Owner thereof for
payment of such Bond shall forthwith cease, terminate and be completely discharged,
and thereupon it shall be the duty of the Trustee to hold such moneys, without liability
for interest thereon, for the benefit of the Owner of such Bond who shall thereafter be
restricted exclusively to such moneys, for any claim of whatever nature on his or her
part under this Indenture or on, or with respect to, said Bond.
Any moneys so deposited with and held by the Trustee not so applied to the
payment of Bonds within two (2) years after the date on which the same were deposited
with the Trustee due shall be paid by the Trustee to the City. Thereafter, Owners shall
be entitled to look only to the City for payment, and then only to the extent of the
amount so disbursed by the Trustee. The City shall not be liable for any interest on the
sums paid to it pursuant to this section and shall not be regarded as a trustee or
trustees of such money. Any moneys held in accordance with this Section 10.02 shall
be held uninvested.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Continuinq Disclosure. The Authority hereby covenants and
agrees, whenever an Annual Rate Period or Fixed Rate Period is in effect with respect
to the Bonds, or if otherwise required by Rule 15c2- 12, to cause the City to comply the
continuing disclosure requirements for the Bonds as promulgated under Rule 15c2-12,
as it may from time to time hereafter be amended or supplemented. Notwithstanding
any other provision of the Indenture, failure of the Authority and/or the City to comply
with the requirements of Rule 15c2-12 applicable to the Bonds, as it may from time to
time hereafter be amended or supplemented, or failure of the City to comply with any
Continuing Disclosure Agreement entered into in connection with the Bonds shall not be
considered an Event of Default and the Trustee shall have no right to accelerate
amounts due hereunder as a result thereof; provided, however, that the Trustee and the
Owners of not less than 25% in principal amount of the Outstanding Bonds may take
such actions as may be necessary and appropriate, including seeking mandate or
specific performance by court order, to cause the Authority to comply with its obligations
in this Section and the City to comply with its obligations in such Continuing Disclosure
Agreement.
SECTION 11.02. Liability of Authoritv Limited to Revenues. Notwithstanding
anything contained in this Indenture or in the Bonds to the contrary, the Authority shall
not be required to advance any moneys derived from any source other than the
Revenues and the monies on deposit in the funds and accounts established under this
Indenture which are pledged under this Indenture pursuant to Section 5.02 hereof for
any of the purposes mentioned in this Indenture, whether for the payment of the
principal of, premium (if any) or interest on the Bonds or for any other purpose of this
Indenture. Nevertheless, the Authority may, but shall not be required to, advance for
any of the purposes hereof any funds of the Authority which may be made available to it
for such purposes.
SECTION 11.03. Successor Is Deemed Included in All References to
Predecessor. Whenever in this Indenture either the Authority or the Trustee is named
or referred to, such reference shall be deemed to include the successors or assigns
thereof, and all the covenants and agreements in this Indenture contained by or on
behalf of the Authority or the Trustee shall bind and inure to the benefit of the respective
successors and assigns thereof whether so expressed or not.
SECTION 11.04. Limitation of Riqhts to Parties and Bondowners. Nothing in
this Indenture or in the Bonds expressed or implied is intended or shall be construed to
give to any person other than the Authority, the Trustee, the Credit Entity, the Collar
Provider, and the Owners of the Bonds any legal or equitable right, remedy or claim
under or in respect of this Indenture or any covenant, condition or provision therein or
herein contained; and all such covenants, conditions and provisions are and shall be
held to be for the sole and exclusive benefit of the Authority, the Trustee, the Credit
Entity, the Collar Provider, and the Owners of the Bonds.
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SECTION 11.05. Waiver of Notice. Whenever in this Indenture the giving of
notice by mail or otherwise is required, the giving of such notice may be waived in
writing by the person entitled to receive such notice and in any such case the giving or
receipt of such notice shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 11.06. Destruction of Bonds. Whenever in this Indenture provision
is made for the cancellation by the Trustee of any Bonds, the Trustee shall destroy such
Bond and deliver a certificate of such destruction to the Authority.
SECTION 11.07. Severabilitv of Invalid Provisions. If any one or more of the
provisions contained in this Indenture or in the Bonds shall for any reason be held to be
invalid, illegal or unenforceable in any respect, then such provision or provisions shall
be deemed severable from the remaining provisions contained in this Indenture and
such invalidity, illegality or unenforceability shall not affect any other provision of this
Indenture, and this Indenture shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein. The Authority hereby
declares that it would have entered into this Indenture and each and every other article,
section, paragraph, sentence, clause or phrase hereof and authorized the issuance of
the Bonds pursuant thereto irrespective of the fact that any one or more articles,
sections, paragraphs, sentences, clauses or phrases of this Indenture may be held
illegal, invalid or unenforceable.
SECTION 11.08. Notices. All written notices to be given under this Indenture
shall be given by 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. Notice to the Trustee shall be effective upon receipt. Notice to all
other parties shall be deemed to have been received upon the earlier of actual receipt
or five Business Days after deposit in the United States mail, in first class form, postage
prepaid or, in the case of personal delivery, upon delivery to the address set forth
below:
If to the City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention: City Manager
Facsimile: (760) 346-6372
Telephone: (760) 341-0611
If to the Authority: Palm Desert Financing Authority
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention: Chief Administrative Officer
Facsimile: (760) 346-6372
Telephone: (760) 341-0611
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If to the Trustee: Weils Fargo Bank, National Association
707 Wilshire Bivd., 17th Floor
MAC E2818-176
Los Angeles, California 90017
Attention: Robert Schneider, Vice President
Facsimile: (213) 614-3355
Telephone: (213) 614-3353
If to the Credit Entity:
Wells Fargo Bank, National Association
707 Wilshire Blvd., 11 th Floor
MAC E2818-114
Los Angeles, California 90017
Attention: Lynn Love, Relationship Manager
Facsimile: (213) 614-3555
Telephone: (213) 614-2235
If to the
Remarketing Agent:Wells Fargo Brokerage Services, LLC
608 Second Avenue, 10th Floor
MAC N9303-105
Minneapolis, Minnesota 55402-1916
Attention: Remarketing Agent
If to the
Tender Agent: Wells Fargo Bank, National Association
707 Wilshire Blvd., 17th Floor
MAC E2818-176
Los Angeles, California 90017
Attention: Robert Schneider, Vice President
Facsimile: (213) 614-3355
Telephone: (213) 614-3353
If to S&P: Standard & Poor's
55 Water Street, 38th Floor
New York, NY 10041
Attention: Municipal Structured Surveillance
email: pubfin_structuredC�standardandpoors.com
Notices to the Collar Provider shall be given pursuant to the notice provisions of
the Interest Rate Collar Agreement.
Notwithstanding any provision contained in this Indenture to the contrary, the
Trustee shall notify S&P, if the Bonds are rated by S&P, and any such other nationally
recognized rating agency then providing or maintaining a rating on the Bonds at the
request of the Authority, but without any liability for any failure to do so of any of the
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following occurrences of which the Trustee has actual knowledge: (1) renewal,
expiration, substitution or termination of the Credit Facility, (2) redemption of any Bonds,
(3) modifications or amendments to (i) this Indenture, (ii) the Lease, (iii) the Assignment
Agreement, (iv) the Credit Facility or (4) change or replacement of Remarketing Agent,
the Trustee or the Tender Agent, (5) defeasance of the Bonds, (6) any conversion of the
interest rate borne by the Bonds, and (7) any mandatory tenders of Bonds. The City
shall notify the rating agency then maintaining a rating on the Bonds and the Trustee of
any modification or amendment to the Reimbursement Agreement to which the City has
consented.
Notwithstanding any provision in this Indenture to the contrary, the City shall
notify the Trustee of any Event of Bankruptcy of which the City has actual knowledge,
which shall have occurred with respect to moneys held by the Trustee pursuant to this
Indenture.
SECTION 11.09. Evidence of Riahts of Bondowners. Any request, consent or
other instrument required or permitted by this Indenture to be signed and executed by
Bondowners may be in any number of concurrent instruments of substantially similar
tenor and shall be signed or executed by such Bondowners in person or by an agent or
agents duly appointed in writing. Proof of the execution of any such request, consent or
other instrument or of a writing appointing any such agent, shall be sufficient for any
purpose of this Indenture and shall be conclusive in favor of the Trustee and of the
Authority if made in the manner provided in this Section.
The fact and date of the execution by any person of any such request, consent or
other instrument or writing may be proved by the certificate of any notary public or other
officer of any jurisdiction, authorized by the laws thereof to take acknowledgments of
deeds, certifying that the person signing such request, consent or other instrument
acknowledged to him the execution thereof, or by an affidavit of a witness of such
execution duly sworn to before such notary public or other officer.
The ownership of the Bonds shall be proved by the bond registration books held
by the Trustee.
Any request, consent, or other instrument or writing of the Owner of any Bond
shall bind every future Owner of the same Bond and the Owner of every Bond issued in
exchange therefor or in lieu thereof, in respect of anything done or suffered to be done
by the Trustee or the Authority in accordance therewith or reliance thereon.
SECTION 11.10. Disqualified Bonds. In determining whether the Owners of
the requisite aggregate principal amount of Bonds have concurred in any demand,
request, direction, consent or waiver under this Indenture, Bonds which are owned by or
for the account of the Authority or the City, shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination. Upon request, the Authority
shall certify to the Trustee which Bonds are disqualified pursuant to this Section 11.10.
69
SECTION 11.11. Mone� Held for Particular Bonds. The money held by the
Trustee for the payment of the principal, premium (if any) or interest due on any date
with respect to particular Bonds (or portions of Bonds in the case of Bonds redeemed in
part only) shall, on and after such date and pending such payment, be set aside on its
books uninvested and held in trust by it for the Owners of the Bonds entitled thereto,
subject, however, to the provisions of Section 10.02.
SECTION 11.12. Funds and Accounts. Any fund required by this Indenture to
be established and maintained by the Trustee may be established and maintained in the
accounting records of the Trustee, either as a fund or an account, and may, for the
purposes of such records, any audits thereof and any reports or statements with respect
thereto, be treated either as a fund or as an account; but all such records with respect to
all such funds shall at all times be maintained in accordance with standard corporate
trust accounting principles, to the extent practicable, and with due regard for the
requirements imposed on the Authority pursuant to Section 6.06 hereof and for the
protection of the security of the Bonds and the rights of every Owner thereof. The
Trustee may establish such funds and accounts as it deems appropriate to perform its
obligations hereunder.
SECTION 11.13. Waiver of Personal Liabilitv. No member, officer, agent or
employee of the Authority shall be individually or personally liable for the payment of the
principal of, premium (if any) or interest on the Bonds or be subject to any personal
liability or accountability by reason of the issuance thereof; but nothing herein contained
shall relieve any such member, officer, agent or employee from the performance of any
official duty provided by law or by this Indenture.
SECTION 11.14. CUSIP Numbers. Neither the Trustee nor the Authority shall
be liable for any defect or inaccuracy in the CUSIP number that appears on any Bond or
in any redemption notice. The Trustee may, in its discretion, include in any redemption
notice a statement to the effect that the CUSIP numbers on the Bonds have been
assigned by an independent service and are included in such notice solely for the
convenience of the Owners and that neither the Authority nor the Trustee shall be liable
for any inaccuracies in such numbers.
SECTION 11.15. Business Days. If any date specified herein shall not be a
Business Day, any action required on such date may be made on the next succeeding
Business Day with the same effect as if made on such date, and if payment is made on
such succeeding Business Day, no additional interest shall accrue for the period after
such date.
SECTION 11.16. Execution in Several Counterparts. This Indenture may be
executed in any number of counterparts and each of such counterparts shall for all
purposes be deemed to be an original; and all such counterparts, or as many of them as
the Authority and the Trustee shall preserve undestroyed, shall together constitute but
one and the same instrument.
70
SECTION 11.17. Governina Law. This Indenture shall be construed in
accordance with and governed by the Constitution and laws of the State.
71
IN WITNESS WHEREOF, THE PALM DESERT FINANCING AUTHORITY and
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee, have caused this
Indenture to be executed by their respective officers all as of the day and year first
above written.
PALM DESERT FINANCING AUTHORITY
By:
Chief Administrative Officer
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:
Authorized Officer
ACKNOWLEDGMENT AND
CONSENT OF CITY
The City of Palm Desert hereby acknowledges and consents to the terms and
provisions of the foregoing Indenture.
Date: As of August 1, 2009 CITY OF PALM DESERT
By:
Mayor
Attest:
By:
City Clerk
72
EXHIBIT A
(FORM OF WEEKLY RATE BOND)
UN�ESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY (AS DEFINED IN THE INDENTURE OF TRUST) TO THE
TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY BOND ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IF REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN
No. R-1 �
PALM DESERT FINANCING AUTHORITY
ENERGY INDEPENDENCE PROGRAM
VARIABLE RATE DEMAND
LEASE REVENUE BOND, SERIES 2009
(FEDERALLY TAXABLE)
Principal
Interest Rate Payment Date Dated Date CUSIP
Weekly rate September 1, 20_ [August 31, 2009]
Registered Owner: Cede & Co.
Principal Amount: Million and 00/100 Dollars
THE PALM DESERT FINANCING AUTHORITY, a public body corporate and
politic, duly organized and existing under the laws of the State of California (the
"Authority"), for value received, hereby promises to pay (but solely from the funds
hereinafter mentioned) to the above-referenced registered owner (the "Owner") or
registered assigns subject to the terms of the Indenture, hereinafter mentioned, and
any right to redemption, the Principal Amount stated above on the Principal Payment
Date stated above upon surrender of this Bond at the corporate office of Wells Fargo
Bank, National Association, (the "Trustee") in Los Angeles, California, and to pay the
registered owner by check mailed by first class mail, postage prepaid, on each Bond
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Payment Date to the person whose name appears in the Bond register as the Owner
thereof as of the Record Date immediately preceding such Bond Payment Date (as
each such term is hereinafter defined), interest on the balance of said Principal Amount
from time to time remaining unpaid, at the rate per annum determined as hereinafter set
forth, from the Bond Payment Date next preceding the date on which this Bond is
authenticated unless it is (a) authenticated after a Record Date and on or before the
next Bond Payment Date, in which event from such Bond Payment Date, or (b)
authenticated on or before the first Record Date, in which event from the dated date set
forth above; provided, however, that interest shall be paid by wire transfer of
immediately available funds to an account in the United States of America to any
registered Owner of at least $1,000,000 in aggregate principal amount of the Bonds, at
the option of such Owner, according to wire instructions given in writing to the Trustee in
accordance with procedures prescribed by the Trustee. Both principal and interest on
this Bond are payable in lawful money of the United States of America, and principal is
payable upon presentation of this Bond at the corporate office of the Trustee. The
Bonds are secured in part by the Authority's right to receive certain lease payments
("Base Rental") under and pursuant to that certain Lease Agreement dated as of August
1, 2009 (the "Lease"), by and between the City of Palm Desert (the "City"), a municipal
corporation duly organized and existing under the laws and constitution of the State of
California, as lessee, and the Authority, as lessor, all of which rights to receive such
Base Rental have been assigned without recourse pursuant to that certain Assignment
Agreement dated as of August 1, 2009, by the Authority to the Trustee under the
Indenture dated as of August 1, 2009 (the "Indenture"), by and between the Authority
and the Trustee.
This Bond is one of a duly authorized issue of Bonds of the Authority designated
as the Palm Desert Financing Authority Energy Independence Program, Variable Rate
Demand Lease Revenue Bonds, Series 2009 (Federally Taxable) (the "Bonds"), all
issued pursuant to and in conformity with the Constitution and laws of the State of
California and particularly the Marks-Roos Local Bond Pooling Act of 1985 (Article 4 of
Chapter 5 of Division 7 of the California Government Code, as amended) and the
Indenture.
Reference is hereby made to the Indenture for a specific description of the
security therein provided for said Bonds, for the nature, extent and manner of
enforcement of such security, for the covenants and agreements made for the benefit of
the Bondowners, and for a statement of the rights of the Bondowners, and by the
acceptance of this Bond the owner hereof assents to all of the terms, conditions and
provisions of the Indenture.
The principal of this Bond, the interest hereon and any premium payable upon
redemption hereof, are secured by an irrevocable pledge of, and are payable solely
from, the Revenues (as defined in the Indenture) and the moneys on deposit in certain
other funds, all as more particularly set forth in the Indenture.
THE OBLIGATION OF THE AUTHORITY TO PAY THE BONDS IS LIMITED TO
THE REVENUES, INCLUDING BASE RENTAL PAYABLE BY THE CITY, PLEDGED
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THEREFOR PURSUANT TO THE INDENTURE AND DOES NOT CONSTITUTE AN
OBLIGATION OF THE AUTHORITY FOR WHICH THE AUTHORITY IS OBLIGATED
TO LEVY OR PLEDGE ANY FORM OF TAXATION OR FOR WHICH THE
AUTHORITY HAS LEVIED OR PLEDGED ANY FORM OF TAXATION. THE
OBLIGATION OF THE AUTHORITY TO PAY THE BONDS DOES NOT CONSTITUTE
AN INDEBTEDNESS OF THE AUTHORITY, THE STATE OF CALIFORNIA, OR ANY
OF ITS POLITICAL SUBDIVISIONS WITHIN THE MEANING OF ANY
CONSTITUTIONAL OR STATUTORY DEBT LIMITATION OR RESTRICTION. THE
OBLIGATION OF THE CITY TO PAY BASE RENTAL IS ABATED DURING ANY
PERIOD IN WHICH, BY REASON OF MATERIAL DAMAGE, DESTRUCTION OR
CONDEMNATION, THERE IS SUBSTANTIAL INTERFERENCE WITH THE USE AND
RIGHT OF POSSESSION BY THE CITY OF THE LEASED PROPERTY. FAILURE OF
THE CITY TO PAY BASE RENTAL DURING ANY SUCH PERIOD SHALL NOT
CONSTITUTE A DEFAULT UNDER THE LEASE, THE INDENTURE OR THIS BOND.
THE OBLIGATION OF THE CITY TO PAY BASE RENTAL DOES NOT
CONSTITUTE AN OBLIGATION OF THE CITY FOR WHICH THE CITY IS
OBLIGATED TO LEVY OR PLEDGE ANY FORM OF TAXATION OR FOR WHICH THE
CITY HAS LEVIED OR PLEDGED ANY FORM OF TAXATION. THE OBLIGATION OF
THE CITY TO PAY BASE RENTAL DOES NOT CONSTITUTE AN INDEBTEDNESS
OF THE CITY, THE STATE OF CALIFORNIA, OR ANY OF ITS POLITICAL
SUBDIVISIONS WITHIN THE MEANING OF ANY CONSTITUTIONAL OR
STATUTORY DEBT LIMITATION OR RESTRICTION.
The Owner of this Bond is entitled to receive, subject to the terms of the
Indenture and any right of payment, redemption or purchase hereinafter provided for, (i)
on the Principal Payment Date set forth above, upon surrender of this Bond at the
corporate office of the Trustee, the Principal Amount specified above on the Principal
Payment Date specified above or upon earlier redemption, and (ii) by check mailed by
first class mail, postage prepaid, on each interest payment date to the person whose
name appears in the Bond register as the Owner thereof as of the Record Date
immediately preceding such Bond Payment Date (as each such term is hereinafter
defined), interest on the balance of said Principal Amount from time to time remaining
unpaid, at the rate per annum determined as hereinafter set forth, from the Bond
Payment Date next preceding the date on which this Bond is authenticated unless it is
(a) authenticated after a Record Date and on or before the next Bond Payment Date, in
which event from such Bond Payment Date, or (b) authenticated on the first Record
Date, in which event from the dated date set forth above; provided, however, that
interest shall be paid by wire transfer of immediately available funds to any registered
Owner of at least $1,000,000 in aggregate principal amount of the Bonds, at the option
of such Owner, according to wire instructions given in writing to the Trustee in
accordance with procedures prescribed by the Trustee.
Pursuant to that certain Reimbursement Agreement dated as of August 1, 2009
(the "Reimbursement Agreement"), by and between the City and Wells Fargo Bank,
National Association (the "Bank"), the Bank has agreed to issue its irrevocable direct-
pay letter of credit (the "Credit Facility") to support the payment of principal of and
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interest on the Bonds and to pay the purchase price of this Bond, if required to be
purchased pursuant to the Indenture on or prior to the Fixed Rate Conversion Date.
Subject to certain conditions, the Credit Facility may be replaced by an Alternate Credit
Facility and, if so, references herein to the Credit Facility or the Bank shall refer to such
Alternate Credit Facility or to the issuer thereof, respectively.
Until an Annual Rate Conversion Date or Fixed Rate Conversion Date, the Bonds
shall bear interest at the Weekly Rate; provided that the interest rate shall never exceed
the Maximum Rate. Interest due with respect to Bonds bearing a Weekly Rate shall be
computed on the basis of actual days elapsed and a 365- or 366-day year, as
applicable.
Interest on the Bonds will be payable, from the date of execution and delivery of
the Bonds to before an Annual Rate Conversion Date or the Fixed Rate Conversion
Date, the first Business Day of each month commencing September 1, 2009, to and
including the Annual Rate Conversion Date or Fixed Rate Conversion Date.
The method of calculation of interest may, in accordance with and subject to the
terms of the Indenture, be changed from calculation at the Weekly Rate then in effect to
calculation at a Fixed Rate. The Remarketing Agent shall determine the Weekly Rate
from time to time, and such determination by the Remarketing Agent shall be conclusive
and binding. The Indenture provides that if the Remarking Agent fails to determine the
Weekly Rate, the Weekly Rate will be determined as set forth therein.
The Bonds are delivered in fully registered form and shall be in Authorized
Denominations. Bonds may be exchanged at the Principal Office of the Trustee, in the
manner and subject to the limitations and conditions provided in the Indenture, for an
equal aggregate principal amount of Bonds of any Authorized Denominations.
The transfer of this Bond is registerable by the Owner hereof in person or by his
attorney or legal representative at the corporate office of the Trustee, but only in the
manner and subject to the limitations and conditions provided in the Indenture and upon
surrender and cancellation of this Bond. Upon any such registration of transfer, the
Trustee shall execute and deliver in exchange for this Bond a new Bond or Bonds,
registered in the name of the transferee, of Authorized Denominations, in an aggregate
principal amount equal to the principal amount of this Bond.
In the event the Authority has complied with the requirements of the Indenture to
change the interest rate represented by the Bonds to a Fixed Rate or Annual Rate, all
Bonds shall be subject to mandatory tender and purchase on the Fixed Rate
Conversion Date or Annual Rate Conversion Date, as applicable, in accordance with
the provisions of the Indenture.
The Bonds are subject to mandatory tender on the last Bond Payment Date
occurring on or prior to the date at least five days prior to the date on which the Credit
Facility is scheduled to expire or terminate in accordance with its respective terms and if
the Trustee has not received notice at least 40 days prior to such Bond Payment Date
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that an Alternate Credit Facility is to be provided. Not less than thirty days before each
such Mandatory Tender Date under this paragraph, the Trustee shall send a notice to
all Owners by first class mail, postage prepaid, which notice shall contain the following
information: (1) that the Credit Facility is scheduled to expire or terminate and no
Alternate Credit Facility will be provided, (2) that each Owner's Bond is subject to
mandatory tender as provided in such notice, and (3) if any of the nationally recognized
rating agencies which has a credit rating outstanding on the Bonds has indicated to the
Trustee in writing that it will lower or withdraw its rating on the Bonds as of such
Mandatory Tender Date, notice of such new rating, or if no new rating is available,
notice that any of such rating agencies may lower or withdraw such rating as of such
Mandatory Tender Date.
The Bonds are subject to mandatory tender under this paragraph on the first
Business Day to occur on or after the seventh day following receipt by the Trustee of
notice from the Credit Entity of the occurrence of an event of default under the
Reimbursement Agreement, or that the Credit Entity will not reinstate the interest
portion of the Credit Facility. Not later than the third Business Day after receipt by the
Trustee of such notice, the Trustee shall send to all Owners by first class mail, postage
prepaid, and to the Depository also by facsimile, a notice which shall contain the
following information: (1) that an event of default has been declared under the
Reimbursement Agreement, or that the Credit Entity will not reinstate interest portion of
the Credit Facility, and (2) that each Owner's Bond is subject to mandatory tender on
the first Business Day to occur on after seventh day following the receipt by the Trustee
of such notice from the Credit Entity.
The Bonds are subject to mandatory tender on the effective date of any Alternate
Credit Facility in accordance with the provisions of the Indenture.
Owners of Bonds shall be required to tender the Bonds to the Tender Agent by
11:00 a.m., New York time, on any Mandatory Tender Date for purchase at a purchase
price equal to the principal amount thereof, plus accrued interest thereon to the
Mandatory Tender Date. So long as the Bonds are registered in the name of the
Nominee, such tenders shall be made through the book-entry system. Any Untendered
Bonds shall be deemed to have been tendered on a Mandatory Tender Date, whether
or not the Bonds are in fact surrendered to the Tender Agent. In the event of a failure
by Owners of Bonds to tender Bonds on the Mandatory Tender Date, said Owners of
Untendered Bonds shall not be entitled to any payment (inctuding any interest to accrue
subsequent to the Mandatory Tender Date) other than the purchase price for such
Untendered Bonds, and any Untendered Bonds shall no longer be entitled to the
benefits of this Indenture, except for the purpose of payment of the purchase price
thereof. Such Untendered Bonds shall be deemed purchased, canceled and no longer
Outstanding under this Indenture. However, the purchase price will be paid only upon
presentation of the Bonds to the Tender Agent.
In the case of an Annual Rate Conversion Date or the Fixed Rate Conversion
Date, if not less than eleven (11) days before such Conversion Date (a) the
Remarketing Agent notifies the Trustee that that it cannot remarket all of the Bonds, (b)
A-5
written notice is provided by the Authority to the Trustee to the effect that it no longer
wishes to proceed with the conversion, or (c) if the requirements for the effectiveness of
a Conversion Date are not satisfied before such Conversion Date, the Trustee shall give
notice thereof by first-class mail, postage prepaid, to all Owners, the Remarketing
Agent, the Credit Entity and the Authority and each of such parties shall be restored to
their respective positions as if notice of the Conversion Date had not been given and no
mandatory tender shall occur. In addition to the mailed notice required by the preceding
sentence, the Trustee shall deliver a duplicate copy of such notice to the Depository, the
Credit Entity by telecommunications or overnight delivery.
During a Weekly Rate Period and prior to the Fixed Rate Conversion Date with
respect to the Bonds (but not during an Annual Rate Period), any Owner of the Bonds
may give irrevocable written notice to the Tender Agent at its Principal Office and
request that the Tender Agent purchase all or any part (in Authorized Denominations) of
the Bonds then outstanding and registered in the name of such Owner at an amount or
price equal to the unpaid principal amount thereof plus accrued and unpaid interest
thereon to, but not including, the Business Day on which the Bonds are to be tendered
to the Tender Agent (the "Optional Tender Date") and without premium. Such notice
(the "Optional Tender Notice") shall be substantially in the form set forth in the Indenture
and shafl specify the Optional Tender Date (which shall not be less than seven (7) days
after the date of receipt by the Tender Agent of such Optional Tender Notice), the
CUSIP Number, the principal amount being tendered in integral multiples of Authorized
Denominations and, so long as the Bonds are registered in the name of the Nominee,
such notice shall also specify the Participant number and the contact person of the
Participant. Upon receipt of an Optional Tender Notice, the Tender Agent shall, as soon
as is practicable but in no event later than the close of business on the Business Day
following the day of receipt of such Optional Tender Notice, give notice to the Trustee,
the Authority, the Credit Entity and the Remarketing Agent of the Optional Tender
Notice, the Optional Tender Date specified therein and the principal amount of Bonds to
be purchased on such Optional Tender Date.
Owners providing an Optional Tender Notice shall be required to tender the
Bonds to the Tender Agent for purchase by 11:00 a.m., New York time, on the Optional
Tender Date. In the event of a failure by Owners of Bonds to tender Bonds on the
Optional Tender Date, said Owners of Bonds shall not be entitled to any payment
(including any interest to accrue subsequent to the Optional Tender Date) other than the
purchase price for such Untendered Bonds, and any Untendered Bonds shall no longer
be entitled to the benefits of this Indenture, except for the purpose of payment of the
purchase price thereof. Such Untendered Bonds shall be deemed purchased, canceled
and no tonger Outstanding under this Indenture. However, the purchase price wilf be
paid only upon presentment of the Bonds to the Tender Agent. Upon the cancellation of
Untendered Bonds, the Trustee shall execute new Bonds in the same aggregate
principal amount as, and in substitution for the Bonds not so tendered by such Owner
and shall hold, deliver and make available such new Bonds to the new Owner thereof in
accordance with the provisions of this Indenture which shall be fully applicable
notwithstanding that such new Bonds are executed in substitution for the Bonds not so
tendered. From and after the Fixed Rate Conversion Date, the Tender Agent will not be
A-6
required to purchase such Bonds on demand and optional tender by the Owners thereof
in accordance with the Indenture.
During a Weekly Rate Period and on an Annual Rate Conversion Date or the
Fixed Rate Conversion Date, the Bonds are subject to optional redemption in whole or
in part (in an amount of $100,000 or any integral multiple of $5,000 in excess thereof)
on any Business Day, at the option of the Authority, at a redemption price equal to the
principal amount thereof together with accrued interest to the date fixed for redemption,
without premium.
The Bonds are subject to mandatory redemption in part on the dates in the
following years in the following amounts at a redemption price equal to the principal
amount thereof together with accrued interest to the date fixed for redemption, without
premium:
Redemption Redemption
Date Date
�September 1) Principal (September 1) Principal
2011 $ �
*
* Maturity
The Bonds are subject to mandatory redemption on any Bond Payment Date, in
whole or in part, from moneys drawn under the Credit Facility which shall be reimbursed
from Net Proceeds following the deposit by the Trustee in the Lease Prepayment
Account of the Redemption Fund of Net Proceeds deposited by the City under this
Indenture, at least 45 days prior to a Bond Payment Date which have been credited
towards the Prepayment made by the City pursuant to the Lease, at a redemption price
equal to the principal amount of the Bonds to be redeemed, together with accrued
interest to the date fixed for redemption, without premium; provided, however, that if
there shall no longer be available a Credit Facility to secure the payment of principal
and interest represented by the Bonds or if the Credit Facility does not permit a draw
with respect to Prepayments, the Bonds are subject to redemption from Net Proceeds
which the Trustee shall deposit in the Lease Prepayment Account of the Redemption
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Fund, to be used to redeem the Bonds by the Trustee as provided in the Lease and as
provided herein.
In the event of a partial redemption of Bonds from Net Proceeds or an optional
redemption as described above, the forgoing annual sinking fund payments shall be
reduced in equal percentages, as nearly as practicable, provided that the reductions
shall be made in multiples of $5,000.
If this Bond is called for redemption and payment is duly provided therefor as
specified in the Indenture, interest shall cease to accrue thereon from and after the date
fixed for redemption.
The Authority and the Trustee may treat the Owner of this Bond (as evidenced by
the Bond register) as its absolute owner for all purposes, and the Authority and the
Trustee shall not be affected by any notice to the contrary.
In the manner provided in the Indenture, the rights and obligations of the
Authority and of the Owners of the Bonds, may (with certain exceptions as stated in the
Indenture) be modified or amended with the consent of the Bank and the Owners of at
least a majority in aggregate principal amount of the Bonds then Outstanding.
No modification or amendment shall (1) extend the fixed maturity of any Bond, or
reduce the amount of principal thereof or the rate of interest thereon, or extend the time
of payment of interest thereon, or change the method of computing the rate of interest
thereon, or extend the time of payment of interest thereon, without the consent of the
Owner of each Bond so affected, or (2) reduce the percentage of Bonds the consent of
the Owners of which is required to effect any such modification or amendment, or permit
the creation of any lien on the Revenues and other assets pledged under the Indenture
prior to or on a parity with the lien created by the Indenture except as otherwise
provided therein, or deprive the Owners of the Bonds of the lien created by the
Indenture on such Revenues and other assets (except as expressly provided in this
Indenture), without the consent of the Owners of all the Bonds then Outstanding, or (3)
modify any of the rights or obligations of the Trustee without its written consent.
It is hereby recited, certified and declared that any and all acts, conditions and
things required to exist, to happen and to be performed precedent to and in the
issuance of this Bond exist, have happened and have been performed in due time, form
and manner as required by the Constitution and the statutes of the State of California.
This Bond shall not be valid and the Owner hereof shall not be entitled to any
benefit hereunder unless this Bond shall have been authenticated by the Trustee by the
signature of a duly authorized signatory.
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IN WITNESS WHEREOF, THE PALM DESERT FINANCING AUTHORITY has
caused this Bond to be executed on its behalf by the signature of the President of the
governing board of the Authority and attested by the Secretary of the governing board of
the Authority and this Bond to be authenticated manually by the Trustee and dated as of
the date first above written.
PALM DESERT FINANCING AUTHORITY
By:
President
ATTEST:
By:
Secretary
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds described in the within-mentioned
Indenture.
Date of Authentication:
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
Authorized Signatory
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby seii(s), assign(s) and
transfer(s) unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE)
the within Bond, and does hereby irrevocably constitute and appoint
attorney to transfer
said Bond on the books of the bond Registrar with full power of substitution in the
premises.
Dated:
Signature Guaranteed:
NOTICE: Signature(s) must be NOTICE: The signature(s) on this
guaranteed by an eligible guarantor assignment must correspond with the
institution. name(s) as written upon the face of
the within Bond in every particular,
without alteration or enlargement or
any change whatsoever.
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TENDER NOTICE
The undersigned (a) hereby certifies that the undersigned is the lawful registered
owner (or his duly authorized attorney) of this Bond on the date shown below as the
"Date of Exercise of Owner's Option," (b) hereby gives notice to the Tender Agent of the
exercise by the undersigned of its option to have this Bond, or a portion of this Bond,
purchased on the purchase date in the principal amount (which amount shall be
$100,000 or any integral multiple of $5,000 in excess thereof) indicated below plus
accrued interest, if any, with respect thereto pursuant to the terms of the Indenture, and
(c) in order to exercise said option, hereby tenders and delivers this Bond to the Tender
Agent for purchase on the purchase date designated below for a purchase price equal
to the sum of the principal amount hereof tendered and accrued but unpaid interest to
the date of purchase.
Name and Address of Owner:
Tax I. D.
Date of Exercise of Owner's Option:
Aggregate Principal Amount to be
purchased and Bond numbers
(must be an Authorized Denomination)
Bond CUSIP(s):
Purchase Date:
Signature of Owner:
Signature Guaranteed by:
If applicable: Participant #
Participant Contact Person:
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EXHIBIT B
(FORM OF ANNUAL RATE BOND)
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY (AS DEFINED IN THE INDENTURE OF TRUST) TO THE
TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY BOND ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IF REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN
No. R-1 $
PALM DESERT FINANCING AUTHORITY
ENERGY INDEPENDENCE PROGRAM
VARIABLE RATE DEMAND
LEASE REVENUE BOND, SERIES 2009
(FEDERALLY TAXABLE)
Principal
Interest Rate Pavment Date Dated Date CUSIP
Annual Rate September 1, 20_ [August 31, 2009]
Registered Owner: Cede & Co.
Principal Amount:
THE PALM DESERT FINANCING AUTHORITY, a public body corporate and
politic, duly organized and existing under the laws of the State of California (the
"Authority"), for value received, hereby promises to pay (but solely from the funds
hereinafter mentioned) to the above-referenced registered owner (the "Owner") or
registered assigns subject to the terms of the Indenture, hereinafter mentioned, and
any right to redemption, the Principal Amount stated above on the Principal Payment
Date stated above upon surrender of this Bond at the corporate office of Wells Fargo
Bank, National Association, (the "Trustee") in Los Angeles, California, and to pay the
registered owner by check mailed by first class mail, postage prepaid, on each Bond
B-1
Payment Date to the person whose name appears in the Bond register as the Owner
thereof as of the Record Date immediately preceding such Bond Payment Date (as
each such term is hereinafter defined), interest on the balance of said Principal Amount
from time to time remaining unpaid, at the rate per annum determined as hereinafter set
forth, from the Bond Payment Date next preceding the date on which this Bond is
authenticated unless it is (a) authenticated after a Record Date and on or before the
next Bond Payment Date, in which event from such Bond Payment Date, or (b)
authenticated on or before the first Record Date, in which event from the dated date set
forth above; provided, however, that interest shall be paid by wire transfer of
immediately available funds to an account in the United States of America to any
registered Owner of at least $1,000,000 in aggregate principal amount of the Bonds, at
the option of such Owner, according to wire instructions given in writing to the Trustee in
accordance with procedures prescribed by the Trustee. Both principal and interest on
this Bond are payable in lawful money of the United States of America, and principal is
payable upon presentation of this Bond at the corporate office of the Trustee. The
Bonds are secured in part by the Authority's right to receive certain lease payments
("Base Rental") under and pursuant to that certain Lease Agreement dated as of August
1, 2009 (the "Lease"), by and between the City of Palm Desert (the "City"), a municipal
corporation duly organized and existing under the laws and constitution of the State of
California, as lessee, and the Authority, as lessor, all of which rights to receive such
Base Rental have been assigned without recourse pursuant to that certain Assignment
Agreement dated as of August 1, 2009, by the Authority to the Trustee under the
Indenture dated as of August 1, 2009 (the "Indenture"), by and between the Authority
and the Trustee.
This Bond is one of a duly authorized issue of Bonds of the Authority designated
as the Palm Desert Financing Authority Energy Independence Program, Variable Rate
Demand Lease Revenue Bonds, Series 2009 (Federally Taxable) (the "Bonds"), all
issued pursuant to and in conformity with the Constitution and laws of the State of
California and particularly the Marks-Roos Local Bond Pooling Act of 1985 (Article 4 of
Chapter 5 of Division 7 of the California Government Code, as amended) and the
Indenture.
Reference is hereby made to the Indenture for a specific description of the
security therein provided for said Bonds, for the nature, extent and manner of
enforcement of such security, for the covenants and agreements made for the benefit of
the Bondowners, and for a statement of the rights of the Bondowners, and by the
acceptance of this Bond the owner hereof assents to all of the terms, conditions and
provisions of the Indenture.
The principal of this Bond, the interest hereon and any premium payable upon
redemption hereof, are secured by an irrevocable pledge of, and are payable solely
from, the Revenues (as defined in the Indenture) and the moneys on deposit in certain
other funds, all as more particularly set forth in the Indenture.
THE OBLIGATION OF THE AUTHORITY TO PAY THE BONDS IS LIMITED TO
THE REVENUES, INCLUDING BASE RENTAL PAYABLE BY THE CITY, PLEDGED
B-2
THEREFOR PURSUANT TO THE INDENTURE AND DOES NOT CONSTITUTE AN
OBLIGATION OF THE AUTHORITY FOR WHICH THE AUTHORITY IS OBLIGATED
TO LEVY OR PLEDGE ANY FORM OF TAXATION OR FOR WHICH THE
AUTHORITY HAS LEVIED OR PLEDGED ANY FORM OF TAXATION. THE
OBLIGATION OF THE AUTHORITY TO PAY THE BONDS DOES NOT CONSTITUTE
AN INDEBTEDNESS OF THE AUTHORITY, THE STATE OF CALIFORNIA, OR ANY
OF ITS POLITICAL SUBDIVISIONS WITHIN THE MEANING OF ANY
CONSTITUTIONAL OR STATUTORY DEBT LIMITATION OR RESTRICTION. THE
OBLIGATION OF THE CITY TO PAY BASE RENTAL IS ABATED DURING ANY
PERIOD IN WHICH, BY REASON OF MATERIAL DAMAGE, DESTRUCTION OR
CONDEMNATION, THERE IS SUBSTANTIAL INTERFERENCE WITH THE USE AND
RIGHT OF POSSESSION BY THE CITY OF THE LEASED PROPERTY. FAILURE OF
THE CITY TO PAY BASE RENTAL DURING ANY SUCH PERIOD SHALL NOT
CONSTITUTE A DEFAULT UNDER THE LEASE, THE INDENTURE OR THIS BOND.
THE OBLIGATION OF THE CITY TO PAY BASE RENTAL DOES NOT
CONSTITUTE AN OBLIGATION OF THE CITY FOR WHICH THE CITY IS
OBLIGATED TO LEVY OR PLEDGE ANY FORM OF TAXATION OR FOR WHICH THE
CITY HAS LEVIED OR PLEDGED ANY FORM OF TAXATION. THE OBLIGATION OF
THE CITY TO PAY BASE RENTAL DOES NOT CONSTITUTE AN INDEBTEDNESS
OF THE CITY, THE STATE OF CALIFORNIA, OR ANY OF ITS POLITICAL
SUBDIVISIONS WITHIN THE MEANING OF ANY CONSTITUTIONAL OR
STATUTORY DEBT LIMITATION OR RESTRICTION.
The Owner of this Bond is entitled to receive, subject to the terms of the
Indenture and any right of payment, redemption or purchase hereinafter provided for, (i)
on the Principal Payment Date set forth above, upon surrender of this Bond at the
corporate office of the Trustee, the Principal Amount specified above on the Principal
Payment Date specified above or upon earlier redemption, and (ii) by check mailed by
first class mail, postage prepaid, on each interest payment date to the person whose
name appears in the Bond register as the Owner thereof as of the Record Date
immediately preceding such Bond Payment Date (as each such term is hereinafter
defined), interest on the balance of said Principal Amount from time to time remaining
unpaid, at the rate per annum determined as hereinafter set forth, from the Bond
Payment Date next preceding the date on which this Bond is authenticated unless it is
(a) authenticated after a Record Date and on or before the next Bond Payment Date, in
which event from such Bond Payment Date, or (b) authenticated on the first Record
Date, in which event from the dated date set forth above; provided, however, that
interest shall be paid by wire transfer of immediately available funds to any registered
Owner of at least $1,000,000 in aggregate principal amount of the Bonds, at the option
of such Owner, according to wire instructions given in writing to the Trustee in
accordance with procedures prescribed by the Trustee.
Until a Weekly Rate Conversion Date or the Fixed Rate Conversion Date, the
Bonds shall bear interest at the Annual Rate; provided that the interest rate shall never
exceed the Maximum Rate. Interest due with respect to the Bonds bearing an Annual
Rate or the Fixed Rate or Fixed Rates shall be computed on the basis of a 360-day year
B-3
consisting of twelve 30-day months and interest due with respect to Bonds bearing a
Weekly Rate shall be computed on the basis of actual days elapsed and a 365- or 366-
day year, as applicable.
Interest on the Bonds will be payable on each March 1 and September 1
commencing on [March 1/September 1], 20_ [the first March 1 or September 1 which
is at least 75 days after the Annual Rate Conversion Date].
The method of calculation of interest may, in accordance with and subject to the
terms of the Indenture, be changed from calculation at the Annual Rate then in effect to
calculation at a Fixed Rate. The Remarketing Agent shall determine the Annual Rate
as set forth in the Indenture, and such determination by the Remarketing Agent shall be
conclusive and binding.
The Bonds are delivered in fully registered form and shall be in Authorized
Denominations. Bonds may be exchanged at the Principal Office of the Trustee, in the
manner and subject to the limitations and conditions provided in the Indenture, for an
equal aggregate principal amount of Bonds of any Authorized Denominations.
The transfer of this Bond is registerable by the Owner hereof in person or by his
attorney or legal representative at the corporate office of the Trustee, but only in the
manner and subject to the limitations and conditions provided in the Indenture and upon
surrender and cancellation of this Bond. Upon any such registration of transfer, the
Trustee shall execute and deliver in exchange for this Bond a new Bond or Bonds,
registered in the name of the transferee, of Authorized Denominations, in an aggregate
principal amount equal to the principal amount of this Bond.
In the event the Authority has complied with the requirements of the Indenture to
change the interest rate represented by the Bonds to a Fixed Rate or Weekly Rate, all
Bonds shall be subject to mandatory tender and purchase on the Fixed Rate
Conversion Date or Weekly Rate Conversion Date, as applicable, in accordance with
the provisions of the Indenture.
The Bonds are subject to mandatory tender on the last Bond Payment Date
occurring on or prior to the date at least five days prior to the date on which the Credit
Facility is scheduled to expire or terminate in accordance with its respective terms and if
the Trustee has not received notice at least 40 days prior to such Bond Payment Date
that an Alternate Credit Facility is to be provided. Not less than thirty days before each
such Mandatory Tender Date under this paragraph, the Trustee shall send a notice to
all Owners by first class mail, postage prepaid, which notice shall contain the following
information: (1) that the Credit Facility is scheduled to expire or terminate and no
Alternate Credit Facility will be provided, (2) that each Owner's Bond is subject to
mandatory tender as provided in such notice, and (3) if any of the nationally recognized
rating agencies which has a credit rating outstanding on the Bonds has indicated to the
Trustee in writing that it will lower or withdraw its rating on the Bonds as of such
Mandatory Tender Date, notice of such new rating, or if no new rating is available,
B-4
notice that any of such rating agencies may lower or withdraw such rating as of such
Mandatory Tender Date.
The Bonds are subject to mandatory tender under this paragraph on the first
Business Day to occur on or after the seventh day following receipt by the Trustee of
notice from the Credit Entity of the occurrence of an event of default under the
Reimbursement Agreement, or that the Credit Entity will not reinstate the interest
portion of the Credit Facility. Not later than the third Business Day after receipt by the
Trustee of such notice, the Trustee shall send to all Owners by first class mail, postage
prepaid, and to the Depository also by facsimile, a notice which shall contain the
following information: (1) that an event of default has been declared under the
Reimbursement Agreement, or that the Credit Entity will not reinstate interest portion of
the Credit Facility, and (2) that each Owner's Bond is subject to mandatory tender on
the first Business Day to occur on after seventh day following the receipt by the Trustee
of such notice from the Credit Entity.
The Bonds are subject to mandatory tender on the effective date of any Alternate
Credit Facility in accordance with the provisions of the Indenture.
Owners of Bonds shall be required to tender the Bonds to the Tender Agent by
11:00 a.m., New York time, on any Mandatory Tender Date for purchase at a purchase
price equal to the principal amount thereof, plus accrued interest thereon to the
Mandatory Tender Date. So long as the Bonds are registered in the name of the
Nominee, such tenders shall be made through the book-entry system. Any Untendered
Bonds shall be deemed to have been tendered on a Mandatory Tender Date, whether
or not the Bonds are in fact surrendered to the Tender Agent. In the event of a failure
by Owners of Bonds to tender Bonds on the Mandatory Tender Date, said Owners of
Untendered Bonds shall not be entitled to any payment (including any interest to accrue
subsequent to the Mandatory Tender Date) other than the purchase price for such
Untendered Bonds, and any Untendered Bonds shall no longer be entitled to the
benefits of this Indenture, except for the purpose of payment of the purchase price
thereof. Such Untendered Bonds shall be deemed purchased, canceled and no longer
Outstanding under this Indenture. However, the purchase price will be paid only upon
presentation of the Bonds to the Tender Agent.
In the case of a Weekly Rate Conversion Date or the Fixed Rate Conversion
Date, if not less than eleven (11) days before such Conversion Date (a) the
Remarketing Agent notifies the Trustee that that it cannot remarket all of the Bonds, (b)
written notice is provided by the Authority to the Trustee to the effect that it no longer
wishes to proceed with the conversion, or (c) if the requirements for the effectiveness of
a Conversion Date are not satisfied before such Conversion Date, the Trustee shall give
notice thereof by first-class mail, postage prepaid, to all Owners, the Remarketing
Agent, the Credit Entity and the Authority and each of such parties shall be restored to
their respective positions as if notice of the Conversion Date had not been given and no
mandatory tender shall occur. In addition to the mailed notice required by the preceding
sentence, the Trustee shall deliver a duplicate copy of such notice to the Depository and
the Credit Entity by telecommunications or overnight delivery.
B-5
During the Annual Rate Period and on a Weekly Rate Conversion Date or the
Fixed Rate Conversion Date, the Bonds are subject to optional redemption in whole or
in part (in integral multiples of $5,000) on any Business Day, at the option of the
Authority, at a redemption price equal to the principal amount thereof together with
accrued interest to the date fixed for redemption, without premium.
The Bonds are subject to mandatory redemption in part on the dates in the
following years in the following amounts at a redemption price equal to the principal
amount thereof together with accrued interest to the date fixed for redemption, without
premium:
Redemption Redemption
Date Date
�September 1) Principal (September 1) Principal
2011 $ $
*
* Maturity
The Bonds are subject to mandatory redemption on any Bond Payment Date, in
whole or in part, from moneys drawn under the Credit Facility which shall be reimbursed
from Net Proceeds following the deposit by the Trustee in the Lease Prepayment
Account of the Redemption Fund of Net Proceeds deposited by the City under this
Indenture, at least 45 days prior to a Bond Payment Date which have been credited
towards the Prepayment made by the City pursuant to the Lease, at a redemption price
equal to the principal amount of the Bonds to be redeemed, together with accrued
interest to the date fixed for redemption, without premium; provided, however, that if
there shall no longer be available a Credit Facility to secure the payment of principal
and interest represented by the Bonds or if the Credit Facility does not permit a draw
with respect to Prepayments, the Bonds are subject to redemption from Net Proceeds
which the Trustee shall deposit in the Lease Prepayment Account of the Redemption
Fund, to be used to redeem the Bonds by the Trustee as provided in the Lease and as
provided herein.
In the event of a partial redemption of Bonds from Net Proceeds or an optional
redemption as described above, the forgoing annual sinking fund payments shall be
reduced in equal percentages, as nearly as practicable, provided that the reductions
shall be made in multiples of $5,000.
B-6
If this Bond is cailed for redemption and payment is duly provided therefor as
specified in the Indenture, interest shall cease to accrue thereon from and after the date
fixed for redemption.
The Authority and the Trustee may treat the Owner of this Bond (as evidenced by
the Bond register) as its absolute owner for all purposes, and the Authority and the
Trustee shall not be affected by any notice to the contrary.
In the manner provided in the Indenture, the rights and obligations of the
Authority and of the Owners of the Bonds, may (with certain exceptions as stated in the
Indenture) be modified or amended with the consent of the Bank and the Owners of at
least a majority in aggregate principal amount of the Bonds then Outstanding.
No modification or amendment shall (1) extend the fixed maturity of any Bond, or
reduce the amount of principal thereof or the rate of interest thereon, or extend the time
of payment of interest thereon, or change the method of computing the rate of interest
thereon, or extend the time of payment of interest thereon, without the consent of the
Owner of each Bond so affected, or (2) reduce the percentage of Bonds the consent of
the Owners of which is required to effect any such modification or amendment, or permit
the creation of any lien on the Revenues and other assets pledged under the Indenture
prior to or on a parity with the lien created by the Indenture except as otherwise
provided therein, or deprive the Owners of the Bonds of the lien created by the
Indenture on such Revenues and other assets (except as expressly provided in this
Indenture), without the consent of the Owners of all the Bonds then Outstanding, or (3)
modify any of the rights or obligations of the Trustee without its written consent.
It is hereby recited, certified and declared that any and all acts, conditions and
things required to exist, to happen and to be performed precedent to and in the
issuance of this Bond exist, have happened and have been performed in due time, form
and manner as required by the Constitution and the statutes of the State of California.
This Bond shall not be valid and the Owner hereof shall not be entitled to any
benefit hereunder unless this Bond shall have been authenticated by the Trustee by the
signature of a duly authorized signatory.
B-7
IN WITNESS WHEREOF, THE PALM DESERT FINANCING AUTHORITY has
caused this Bond to be executed on its behalf by the signature of the President of the
governing board of the Authority and attested by the Secretary of the governing board of
the Authority and this Bond to be authenticated manualty by the Trustee and dated as of
the date first above written.
PALM DESERT FINANCING AUTHORITY
By:
President
ATTEST:
By:
Secretary
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds described in the within-mentioned
Indenture.
Date of Authentication:
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
Authorized Signatory
B-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby seli(s), assign(s) and
transfer(s) unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE)
the within Bond, and does hereby irrevocably constitute and appoint
attorney to transfer
said Bond on the books of the bond Registrar with full power of substitution in the
premises.
Dated:
Signature Guaranteed:
NOTICE: Signature(s) must be NOTICE: The signature(s) on this
guaranteed by an eligible guarantor assignment must correspond with the
institution. name(s) as written upon the face of
the within Bond in every particular,
without alteration or enlargement or
any change whatsoever.
B-9
EXHIBIT C
(FORM OF FIXED RATE BOND)
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY (AS DEFINED IN THE INDENTURE OF TRUST) TO THE
TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY BOND ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IF REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN
No. R-1 �
PALM DESERT FINANCING AUTHORITY
ENERGY INDEPENDENCE PROGRAM
FIXED RATE
LEASE REVENUE BOND, SERIES 2009
(FEDERALLY TAXABLE)
Principal
Interest Rate Pavment Date Dated Date CUSIP
September 1, 20_ [August 31, 2009]
Registered Owner: Cede & Co.
Principal Amount:
THE PALM DESERT FINANCING AUTHORITY, a public body corporate and
politic, duly organized and existing under the laws of the State of California (the
"Authority"), for value received, hereby promises to pay (but solely from the funds
hereinafter mentioned) to the above-referenced registered owner (the "Owner") or
registered assigns subject to the terms of the Indenture, hereinafter mentioned, and
any right to redemption, the Principal Amount stated above on the Principal Payment
Date stated above upon surrender of this Bond at the corporate office of Wells Fargo
Bank, National Association, (the "Trustee") in Los Angeles, California, and to pay the
registered owner by check mailed by first class mail, postage prepaid, on each Bond
G1
Payment Date to the person whose name appears in the Bond register as the Owner
thereof as of the Record Date immediately preceding such Bond Payment Date (as
each such term is hereinafter defined), interest on the balance of said Principal Amount
from time to time remaining unpaid, at the rate per annum determined as hereinafter set
forth, from the Bond Payment Date next preceding the date on which this Bond is
authenticated unless it is (a) authenticated after a Record Date and on or before the
next Bond Payment Date, in which event from such Bond Payment Date, or (b)
authenticated on or before the first Record Date, in which event from the dated date set
forth above; provided, however, that interest shall be paid by wire transfer of
immediately available funds to an account in the United States of America to any
registered Owner of at least $1,000,000 in aggregate principal amount of the Bonds, at
the option of such Owner, according to wire instructions given in writing to the Trustee in
accordance with procedures prescribed by the Trustee. Both principal and interest on
this Bond are payable in lawful money of the United States of America, and principal is
payable upon presentation of this Bond at the corporate office of the Trustee. The
Bonds are secured in part by the Authority's right to receive certain lease payments
("Base Rental") under and pursuant to that certain Lease Agreement dated as of August
1, 2009 (the "Lease"), by and between the City of Palm Desert (the "City"), a municipal
corporation duly organized and existing under the laws and constitution of the State of
California, as lessee, and the Authority, as lessor, all of which rights to receive such
Base Rental have been assigned without recourse pursuant to that certain Assignment
Agreement dated as of August 1, 2009, by the Authority to the Trustee under the
Indenture dated as of August 1, 2009 (the "Indenture"), by and between the Authority
and the Trustee.
This Bond is one of a duly authorized issue of Bonds of the Authority designated
as the Palm Desert Financing Authority Energy Independence Program, Fixed Rate
Lease Revenue Bonds, Series 2009 (Federally Taxable) (the "Bonds"), all issued
pursuant to and in conformity with the Constitution and laws of the State of California
and particularly the Marks-Roos Local Bond Pooling Act of 1985 (Article 4 of Chapter 5
of Division 7 of the California Government Code, as amended) and the Indenture.
Reference is hereby made to the Indenture for a specific description of the
security therein provided for said Bonds, for the nature, extent and manner of
enforcement of such security, for the covenants and agreements made for the benefit of
the Bondowners, and for a statement of the rights of the Bondowners, and by the
acceptance of this Bond the owner hereof assents to all of the terms, conditions and
provisions of the Indenture.
The principal of this Bond, the interest hereon and any premium payable upon
redemption hereof, are secured by an irrevocable pledge of, and are payable solely
from, the Revenues (as defined in the Indenture) and the moneys on deposit in certain
other funds, all as more particularly set forth in the Indenture.
THE OBLIGATION OF THE AUTHORITY TO PAY THE BONDS IS LIMITED TO
THE REVENUES, INCLUDING BASE RENTAL PAYABLE BY THE CITY, PLEDGED
THEREFOR PURSUANT TO THE INDENTURE AND DOES NOT CONSTITUTE AN
C-2
OBLIGATION OF THE AUTHORITY FOR WHICH THE AUTHORITY IS OBLIGATED
TO LEVY OR PLEDGE ANY FORM OF TAXATION OR FOR WHICH THE
AUTHORITY HAS LEVIED OR PLEDGED ANY FORM OF TAXATION. THE
OBLIGATION OF THE AUTHORITY TO PAY THE BONDS DOES NOT CONSTITUTE
AN INDEBTEDNESS OF THE AUTHORITY, THE STATE OF CALIFORNIA, OR ANY
OF ITS POLITICAL SUBDIVISIONS WITHIN THE MEANING OF ANY
CONSTITUTIONAL OR STATUTORY DEBT LIMITATION OR RESTRICTION. THE
OBLIGATION OF THE CITY TO PAY BASE RENTAL IS ABATED DURING ANY
PERIOD IN WHICH, BY REASON OF MATERIAL DAMAGE, DESTRUCTION OR
CONDEMNATION, THERE IS SUBSTANTIAL INTERFERENCE WITH THE USE AND
RIGHT OF POSSESSION BY THE CITY OF THE LEASED PROPERTY. FAILURE OF
THE CITY TO PAY BASE RENTAL DURING ANY SUCH PERIOD SHALL NOT
CONSTITUTE A DEFAULT UNDER THE LEASE, THE INDENTURE OR THIS BOND.
THE OBLIGATION OF THE CITY TO PAY BASE RENTAL DOES NOT
CONSTITUTE AN OBLIGATION OF THE CITY FOR WHICH THE CITY IS
OBLIGATED TO LEVY OR PLEDGE ANY FORM OF TAXATION OR FOR WHICH THE
CITY HAS LEVIED OR PLEDGED ANY FORM OF TAXATION. THE OBLIGATION OF
THE CITY TO PAY BASE RENTAL DOES NOT CONSTITUTE AN INDEBTEDNESS
OF THE CITY, THE STATE OF CALIFORNIA, OR ANY OF ITS POLITICAL
SUBDIVISIONS WITHIN THE MEANING OF ANY CONSTITUTIONAL OR
STATUTORY DEBT LIMITATION OR RESTRICTION.
The Owner of this Bond is entitted to receive, subject to the terms of the
Indenture and any right of payment, redemption or purchase hereinafter provided for, (i)
on the Principal Payment Date set forth above, upon surrender of this Bond at the
corporate office of the Trustee, the Principal Amount specified above on the Principal
Payment Date specified above or upon earlier redemption, and (ii) by check mailed by
first class mail, postage prepaid, on each interest payment date to the person whose
name appears in the Bond register as the Owner thereof as of the Record Date
immediately preceding such Bond Payment Date (as each such term is hereinafter
defined), interest on the balance of said Principal Amount from time to time remaining
unpaid, at the rate per annum determined as hereinafter set forth, from the Bond
Payment Date next preceding the date on which this Bond is authenticated unless it is
(a) authenticated after a Record Date and on or before the next Bond Payment Date, in
which event from such Bond Payment Date, or (b) authenticated on the first Record
Date, in which event from the dated date set forth above; provided, however, that
interest shall be paid by wire transfer of immediately available funds to any registered
Owner of at least $1,000,000 in aggregate principal amount of the Bonds, at the option
of such Owner, according to wire instructions given in writing to the Trustee in
accordance with procedures prescribed by the Trustee.
Interest on the Bonds will be payable each March 1 and September 1
commencing on [March 1/September 1], 20_ [the first March 1 or September 1 which
is at least 75 days after the Fixed Rate Conversion Date].
C-3
Interest due with respect to Bonds shaii be computed on the basis of a 360-day
year consisting of twelve 30-day months.
The Bonds are delivered in fully registered form and shall be in Authorized
Denominations. Bonds may be exchanged at the Principal Office of the Trustee, in the
manner and subject to the limitations and conditions provided in the Indenture, for an
equal aggregate principal amount of Bonds of any Authorized Denominations.
The transfer of this Bond is registerable by the Owner hereof in person or by his
attorney or legal representative at the corporate office of the Trustee, but only in the
manner and subject to the limitations and conditions provided in the Indenture and upon
surrender and cancellation of this Bond. Upon any such registration of transfer, the
Trustee shall execute and deliver in exchange for this Bond a new Bond or Bonds,
registered in the name of the transferee, of Authorized Denominations, in an aggregate
principal amount equal to the principal amount of this Bond.
[The following optional redemption provisions may be modified as determined by
the Remarketing Agent pursuant to the Indenture. Replace the following optional
redemption provisions with any modified optional redemption provisions, as
appropriate.]
The Bonds are subject to optional redemption in whole or in part (in integral
multiples of $5,000) on any Business Day, at the option of the Authority at a redemption
price equal to the principal amount thereof together with accrued interest to the date
fixed for redemption and without premium.
The Bonds are subject to mandatory redemption in part on the dates in the
following years in the following amounts at a redemption price equal to the principal
amount thereof together with accrued interest to the date fixed for redemption, without
premium:
Redemption Redemption
Date Date
(September 1) Principal �September 1) Principal
2011 $ $
*
* Maturity
C-4
[At the Fixed Rate Conversion Date, any annual sinking fund redemption which
has not yet become due may be treated as a serial maturity of principal bearing interest
at the Fixed Rate payable on March 1 and September 1 thereafter to maturity. In such
event the mandatory redemption provision above needs to be deleted.]
The Bonds are subject to mandatory redemption on any Bond Payment Date, in
whole or in part, from moneys from Net Proceeds following the deposit by the Trustee in
the Lease Prepayment Account of the Redemption Fund of Net Proceeds deposited by
the City under this Indenture, at least 45 days prior to a Bond Payment Date which have
been credited towards the Prepayment made by the City pursuant to the Lease, at a
redemption price equal to the principal amount of the Bonds to be redeemed, together
with accrued interest to the date fixed for redemption, without premium.
In the event of a partial redemption of Bonds from Net Proceeds or an optional
redemption as described above, the forgoing annual sinking fund payments shall be
reduced in equal percentages, as nearly as practicable, provided that the reductions
shall be made in multiples of $5,000.
If this Bond is called for redemption and payment is duly provided therefor as
specified in the Indenture, interest shall cease to accrue thereon from and after the date
fixed for redemption.
The Authority and the Trustee may treat the Owner of this Bond (as evidenced by
the Bond register) as its absolute owner for all purposes, and the Authority and the
Trustee shall not be affected by any notice to the contrary.
In the manner provided in the Indenture, the rights and obligations of the
Authority and of the Owners of the Bonds, may (with certain exceptions as stated in the
Indenture) be modified or amended with the consent of the Owners of at least a majority
in aggregate principal amount of the Bonds then Outstanding.
No modification or amendment shall (1) extend the fixed maturity of any Bond, or
reduce the amount of principal thereof or the rate of interest thereon, or extend the time
of payment of interest thereon, or change the method of computing the rate of interest
thereon, or extend the time of payment of interest thereon without the consent of the
Owner of each Bond so affected, or (2) reduce the percentage of Bonds the consent of
the Owners of which is required to effect any such modification or amendment, or permit
the creation of any lien on the Revenues and other assets pledged under the Indenture
prior to or on a parity with the lien created by the Indenture except as otherwise
provided therein, or deprive the Owners of the Bonds of the lien created by the
Indenture on such Revenues and other assets (except as expressly provided in this
Indenture), without the consent of the Owners of all the Bonds then Outstanding, or (3)
modify any of the rights or obligations of the Trustee without its written consent.
It is hereby recited, certified and declared that any and all acts, conditions and
things required to exist, to happen and to be performed precedent to and in the
GS
issuance of this Bond exist, have happened and have been performed in due time, form
and manner as required by the Constitution and the statutes of the State of California.
This Bond shall not be valid and the Owner hereof shall not be entitled to any
benefit hereunder unless this Bond shall have been authenticated by the Trustee by the
signature of a duly authorized signatory.
C-6
IN WITNESS WHEREOF, THE PALM DESERT FINANCING AUTHORITY has
caused this Bond to be executed on its behalf by the signature of the President of the
governing board of the Authority and attested by the Secretary of the governing board of
the Authority and this Bond to be authenticated manually by the Trustee and dated as of
the date first above written.
PALM DESERT FINANCING AUTHORITY
By:
President
ATTEST:
By:
Secretary
C-7
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds described in the within-mentioned
Indenture.
Date of Authentication:
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
Authorized Signatory
C-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby seli(s), assign(s) and
transfer(s) unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE)
the within Bond, and does hereby irrevocably constitute and appoint
attorney to transfer
said Bond on the books of the bond Registrar with full power of substitution in the
premises.
Dated:
Signature Guaranteed:
NOTICE: Signature(s) must be NOTICE: The signature(s) on this
guaranteed by an eligible guarantor assignment must correspond with the
institution. name(s) as written upon the face of
the within Bond in every particular,
without alteration or enlargement or
any change whatsoever.
C-9
LEASE AGREEMENT
by and between the
PALM DESERT FINANCING AUTHORITY
and the
CITY OF PALM DESERT
RELATING TO
PALM DESERT FINANCING AUTHORITY
ENERGY INDEPENDENCE PROGRAM
VARIABLE RATE DEMAND
LEASE REVENUE BONDS, SERIES 2009
(FEDERALLY TAXABLE)
Dated as of August 1, 2009
G:\Finance\Niamh Ortega\Staff Reports\Lease Agreement(Palm Desert EIP 2009 LRBs).docx
TABLE OF CONTENTS
Page
ARTICLEI DEFINITIONS.............................................................................................. 2
SECTION 1.01. Definitions. .......................................................................... 2
ARTICLE II THE LEASED PROPERTY......................................................................... 7
SECTION 2.01. Lease of the Leased Property. ............................................ 7
SECTION 2.02. Quiet Enjoyment. ................................................................ 7
SECTION 2.03. Right of Entry and Inspection.............................................. 7
SECTION 2.04. Prohibition Against Encumbrance or Sale........................... 7
SECTION2.05. Liens. .................................................................................. 7
SECTION 2.06. Substitution or Removal of Leased Property....................... 8
SECTION 2.07. Changes to the Leased Property. ....................................... 9
SECTION 2.08. Title to the Leased Property. ..............................................10
SECTION 2.09. Acquisition of Additional Properiy. .....................................10
ARTICLE III TERM OF THE LEASE.............................................................................10
SECTION 3.01. Commencement of the Lease............................................10
SECTION 3.02. Termination of the Lease. ..................................................10
ARTICLE IV USE OF PROCEEDS; POSSESSION OF THE LEASED
PROPERTY; TAX COVENANTS.......................................................11
SECTION 4.01. Use of Proceeds. ...............................................................11
SECTION 4.02. Possession of the Leased Property. ..................................11
SECTION 4.03. Continuing Disclosure. .......................................................11
ARTICLE V RENTAL PAYMENTS ...............................................................................11
SECTION 5.01. Rental Payments................................................................11
SECTION 5.02. Annual Budgets; Reporting Requirements.........................15
SECTION 5.03. Application of Rental Payments. ........................................17
SECTION 5.04. Rental Abatement. .............................................................17
SECTION 5.05. Prepayment of Rental Payments. ......................................17
SECTION 5.06. Obligation to Make Rental Payments.................................18
ARTICLE VI MAINTENANCE; TAXES; INSURANCE AND OTHER CHARGES..........19
SECTION 6.01. Maintenance of the Leased Property by the City. ..............19
SECTION 6.02. Taxes, Other Governmental Charges and Utility
Charges. ............................................................................19
SECTION 6.03. Insurance. ..........................................................................20
SECTION6.04. Advances. ..........................................................................22
-i-
TABLE OF CONTENTS
(continued)
Page
ARTICLE VII DAMAGE, DESTRUCTION, TITLE DEFECT AND
CONDEMNATION..............................................................................22
SECTION 7.01. Damage, Destruction, Titie Defect and
Condemnation; Use of Net Proceeds.................................22
ARTICLE VIII DISCLAIMER OF WARRANTIES; VENDOR'S WARRANTIES;
USE OF THE LEASED PROPERTY..................................................23
SECTION 8.01. Disclaimer of Warranties....................................................23
SECTION 8.02. Vendor's Warranties. .........................................................23
SECTION 8.03. Use of the Leased Property. ..............................................24
ARTICLE IX ASSIGNMENT AND INDEMNIFICATION ................................................24
SECTION 9.01. Assignment by Authority. ...................................................24
SECTION 9.02. Assignment by City and Sublease. ....................................25
SECTION 9.03. Indemnification...................................................................25
ARTICLEX DEFAULT..................................................................................................25
SECTION 10.01. Default; Assignment of Rents.............................................25
ARTICLE XI MISCELLANEOUS...................................................................................29
SECTION11.01. Notices...............................................................................29
SECTION 11.02. Binding Effect.....................................................................30
SECTION 11.03. Third Party Beneficiaries....................................................30
SECTION 11.04. Net-Net-Net Lease. ............................................................31
SECTION 11.05. Amendments......................................................................31
SECTION 11.06. Partial Invalidity..................................................................32
SECTION 11.07. California Law. ...................................................................32
SECTION 11.08. Section Headings...............................................................32
SECTION 11.09. Execution; Recordation......................................................32
SECTION 11.10. Consent of Credit Entity Required......................................32
EXHIBIT A— Legal Description of Real Property.........................................................A-1
EXHIBIT B — Aggregate Annual Base Rental Payment Schedule ............................... B-1
-ii-
LEASE AGREEMENT
This Lease Agreement (the "Lease"), is executed and entered into as of
August 1, 2009, by and between the Palm Desert Financing Authority, a joint powers
authority, duly created and validly existing under the Constitution and laws of the State
of California (the "Authority"), as lessor, and the City of Palm Desert, a municipal
corporation duly organized and existing under the Constitution and laws of the State of
California (the "City"), as lessee;
WITNESSETH:
WHEREAS, the Authority has determined to issue its Energy
Independence Program, Variable Rate Demand Lease Revenue Bonds, Series 2009
(Federally Taxable) (the "Bonds") to finance of the acquisition and construction or
installation of distributed generation renewable energy sources and energy efficiency
improvements on or in properties in the City pursuant to the City's Energy
Independence Program (collectively, the "Project");
WHEREAS, the City will lease to the Authority its fee or leasehold interest
in certain real property and improvements thereon (the "Leased Property") pursuant to a
Site Lease, dated as of August 1, 2009 (the "Site Lease"); and
WHEREAS, the Authority, concurrently with the execution of the Site
Lease, will lease the Leased Property back to the City pursuant to this Lease, in
consideration for Base Rental payments equal to the principal and interest coming due
on the Bonds; and
WHEREAS, concurrently with the execution and delivery of this Lease,
and as an integral part of the financing of the Project by reducing the variability of
interest rates and to reduce the cost of borrowing, the Authority, at the request of the
City, will enter into the Interest Rate Collar Agreement (as defined herein), under which
the Authority is obligated to make certain Scheduled Collar Payments (as defined
herein) and other amounts including, without limitation, Termination Payments (as
defined herein) (all of which amounts are hereinafter referred to as the "Collar
Payments"), based on a floor rate of interest at the rate specified therein; and
WHEREAS, all acts and conditions required by law to exist, to have
happened and to have been performed precedent to and in connection with the
execution and entering into of this Lease, do exist, have happened and have been
performed in regular and due time, form and manner as required by law, and the parties
hereto are now duly authorized to execute and enter into this Lease.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND
THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN AND FOR
OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS
HEREBY ACKNOWLEDGED, THE PARTIES HERETO DO HEREBY AGREE AS
FOLLOWS:
1
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless the context otherwise requires,
the terms defined in this section shall for all purposes hereof and of any amendment
hereof have the meanings defined herein, the following definitions to be equally
applicable to both the singular and plural forms of any of the terms defined herein. All
other capitalized terms used herein without definition shall have the meanings as set
forth in the Indenture.
Additional Rental
"Additional Rental" means all amounts payable by the City pursuant to
Section 5.01(b).
Annual Rent
"Annual Rent" shall have the meaning ascribed to such term in Section
5.01(c).
Authoritv
"Authority" means the Palm Desert Financing Authority, a joint powers
authority duly created and lawfully existing under the Constitution and laws of the State.
Base Rental
"Base Rental" means all amounts payable by the City as Base Rental
pursuant to Section 5.01(a).
C�
"City" means the City of Palm Desert, a municipal corporation duly
organized and existing under the Constitution and laws of the State.
Collar Pavments
"Collar Payments" means the payments and amounts, including without
limitation Scheduled Collar Payments and Termination Payments, the Authority is
obligated to make under the Interest Rate Collar Agreement and that constitute a
component of the City's Base Rental payments to the Authority in accordance with
Section 5.01 of this Lease.
Collar Provider
"Collar Provider" means (i) Wells Fargo Bank, National Association, if the
Interest Rate Collar Agreement described in clause (i) of the "Interest Rate Coltar
2
Agreement" definition herein is effective, or (ii) the counterparty to any other Interest
Collar Agreement then in effect.
Credit Entitv
"Credit Entity" means Wells Fargo Bank, National Association, as the
issuer of the Credit Facility being delivered on the Closing Date with respect to the
Bonds and thereafter the issuer of any Alternate Credit Facility delivered under the
Indenture in effect from time to time.
Deferred Base Rental Pavment Obligation
"Deferred Base Rental Payment Obligation" shall have the meaning
ascribed to such term in Section 5.01(a).
Developer Claim
"Developer Claim" means that certain claim received by the City Clerk of
the City on July 13, 2009, which claim was filed by the Developer Claimants pursuant to
the Tort Claims Act (California Government Code Section 810 et seq.) and assigned
Claim No. 646 by the City.
Developer Claimants
"Developer Claimants" means LMI Co., LLC, Royce International
Investment Company, Severin & Company LLC, and Pafm Desert Villa Portfolio I, LLC.
Energy Independence Propram
"Energy Independence Program" means the City of Palm Desert Energy
Independence Program heretofore established pursuant to Chapter 29 of Part 3 of
Division 7 of the California Streets and Highways Code, commencing with Section
5898.10, to finance the Project through contractual assessments.
Earned Excess Amount
"Earned Excess Amount" shall have the meaning ascribed to such term in
Section 5.01(c).
Hazardous Substances
"Hazardous Substances" means any substances, wastes, pollutants or
contaminants now or hereafter included in such (or any similar) term under any federal,
state or local statute, regulation, ordinance or code now existing or hereafter enacted or
amended.
3
Indenture
"Indenture" means that certain Indenture dated as of August 1, 2009, by
and between the Authority and Wells Fargo Bank, National Association, as originally
executed and entered into and as it may from time to time be amended or
supplemented in accordance therewith.
Interest Rate Collar Aqreement
"Interest Rate Collar Agreement" means (i) collectively, the ISDA Master
Agreement (including the Schedule thereto) and Confirmation, each dated as of August
31, 2009, between the Collar Provider and the Authority, or (ii) any other agreement
between the Authority and a counterparty, which establishes an upper limit and a lower
limit on the interest rate payable by the Authority with respect to the portion of the
Bonds subject to such agreement.
Insurance Consultant
"Insurance Consultant" means an individual or firm employed by the City
as an independent insurance consultant, experienced in the field of risk management.
Lease
"Lease" means this Lease Agreement dated as of August 1, 2009, by and
between the City and the Authority, as originally executed and as it may from time to
time be amended or supplemented in accordance herewith.
Lease Pavment Date
"Lease Payment Date" means the 25th day of the month preceding each
Bond Payment Date (or if the 25th day of the month is not a Business Day, on the next
succeeding Business Day).
Leased Propertv
"Leased Property" means the Real Property and the commercial office
complex and all other improvements constructed on the Real Property.
Net Proceeds
"Net Proceeds" means any insurance proceeds or condemnation award
paid with respect to the Leased Property remaining after payment therefrom of all
expenses incurred in the collection thereof.
Opinion of Counsel
4
"Opinion of Counsel" means a written opinion of counsel of recognized
national standing in the field of law relating to municipal bonds, appointed and paid by
the City.
Permitted Encumbrances
"Permitted Encumbrances" means as of any particular time: (i) liens for
general ad valorem taxes and assessments, if any, not then delinquent, or which the
City may, pursuant to Section 6.02, permit to remain unpaid; (ii) this Lease (and/or the
"short form" or "Memorandum of Lease Agreement" pursuant to Section 11.09) and the
Site Lease; (iii) the Assignment Agreement; (iv) any right or claim of any mechanic,
laborer, materialman, supplier or vendor filed or perfected in the manner prescribed by
law after the date of this Lease; (v) easements, rights of way, mineral rights, drilling
rights and other rights, reservations, covenants, conditions or restrictions which exist of
record as of the date of initial issuance of the Bonds and which the City certifies in
writing will not materially impair the beneficial use and occupancy of the Leased
Property by the City; and (vi) easements, rights of way, mineral rights, drilling rights and
other rights, reservations, covenants, conditions or restrictions established following the
date of recordation of a "short form" or "Memorandum of Lease Agreement" pursuant to
Section 11.09 and to which the Authority, the City and the Credit Entity consent in
writing and which the City certifies will not materially impair the use of the Leased
Project or any Substituted Property, as the case may be.
Proiect
"Project" means the acquisition and construction or installation of
distributed generation renewable energy sources and energy efficiency improvements
on or in properties in the City pursuant to the City's Energy Independence Program.
Real Property
"Real Property" means that certain real property more particularly
described in Exhibit A to this Lease.
Removal
"Removal" means the release of all or a portion of the Leased Property
from the leasehold hereof as provided in Section 2.06.
Rental Period
"Rental Period" shall have the meaning ascribed to such term in Section
5.01(c); provided that the first Rental Period shall commence on the Closing Date with
respect to the Bonds and end on August 25, 2010.
Safekeeping Release Test
5
"Safekeeping Release Test" shall have the meaning ascribed to such term
in Section 5.01(d).
Scheduled Coliar Pavments
"Scheduled Collar Payments" means the amount payable by the Authority,
if any, in connection with each scheduled payment date (other than Termination
Payments) under the Interest Rate Collar Agreement.
Site Lease
"Site Lease" means that certain Site Lease, dated as of August 1, 2009,
by and between the City, as lessor, and the Authority, as lessee, as originally executed
and entered into and as it may from time to time be amended or supplemented in
accordance therewith.
Substituted Propertv
"Substituted Property" shall have the meaning given to such term in
Section 2.06.
Substitution
"Substitution" means the release of all or a portion of the Leased Property
from the leasehold hereof, and the lease of substituted real property and improvements
hereunder as provided in Section 2.06.
Tenant Lease Aqreement
"Tenant Lease Agreements" means, collectively, the lease agreements for
office space in the Leased Property, each by and between the City and the respective
tenant, from time to time in effect, and as further described in Section 10.01(b)(1).
Tenant Rents and Profits
"Tenant Rents and Profits" shall have the meaning ascribed to such term
in Section 10.01(b)(1).
Termination Payments
"Termination Payments" means, with respect to the Interest Rate Collar
Agreement, the amount payable by the Authority as a result of the termination of the
Interest Rate Collar Agreement prior to its scheduled termination date.
Trustee
"Trustee" means Wells Fargo Bank, National Association, a national
banking association existing under and by virtue of the laws of the United States of
6
America, the trustee acting in its capacity as such under the Indenture, or any
successor as therein provided.
ARTICLE II
THE LEASED PROPERTY
SECTION 2.01. Lease of the Leased Proqertv. The Authority hereby
leases to the City, and the City hereby rents and hires from the Authority, the Leased
Property on the conditions and terms hereinafter set forth. The City hereby agrees and
covenants that during the term hereof, except as hereinafter provided, it will use the
Leased Properry for public purposes so as to afford the public the benefits contemplated
hereby and to permit the Authority to carry out its agreements and covenants contained
herein and in the Indenture, and the City hereby further agrees and covenants that
during the term hereof that it witl not abandon or vacate the Leased Property.
SECTION 2.02. Quiet Eniovment. The parties mutually covenant that
the City, so long as it observes and performs the agreements, conditions, covenants
and terms required to be observed or performed by it contained herein and is not in
default hereunder, shall at all times during the term hereof peaceably and quietly have,
hold and enjoy the Leased Property without suit, trouble or hindrance from the Authority.
SECTION 2.03. Ri�ht of Entry and Inspection. The Authority shall
have the right to enter the Leased Property and inspect the Leased Property during
reasonable business hours (and in emergencies at all times) for any purpose connected
with the Authority's rights or obfigations hereunder and for all other lawful purposes.
SECTION 2.04. Prohibition Aqainst Encumbrance or Sale. The City
and the Authority will not create or suffer to be created any mortgage, pledge, lien,
charge or encumbrance upon the Leased Property, except Permitted Encumbrances.
The City and the Authority will not sell or otherwise dispose of the Leased Properry or
any property essential to the proper operation of the Leased Property, except as
otherwise provided herein.
SECTION 2.05. Liens. In the event the City shall at any time during
the term hereof cause any improvements to the Leased Property to be constructed or
materials to be supplied in or upon or attached to the Leased Property, the City shall
pay or cause to be paid when due all sums of money that may become due or
purporting to be due for any labor, services, materials, supplies or equipment furnished
or alleged to have been furnished to or for the City in, upon, about or relating to the
Leased Property and shall keep the Leased Property free of any and all liens (except for
Permitted Encumbrances) against the Leased Property or the Authority's interest
therein. In the event any such lien attaches to the Leased Property, the City shall cause
such lien to be fully discharged and released at the time the performance of any
obligation secured by any such lien matures or becomes due. If any such lien shall be
reduced to final judgment and such judgment or any process as may be issued for the
7
enforcement thereof is not promptly stayed, or if so stayed and such stay thereafter
expires, the City shall forthwith pay and discharge or cause to be paid and discharged
such judgment. The City shall, to the maximum extent permitted by law, indemnify and
hold the Authority, the Trustee and the Credit Entity and their respective directors,
officers and employees harmless from, and defend each of them against, any claim,
demand, loss, damage, liability or expense (including attorneys' fees) as a result of any
such lien or claim of lien against the Leased Property or the Authority's interest therein.
SECTION 2.06. Substitution or Removal of Leased Propertv.
(a) The City may amend this Lease to substitute additional real
property and/or improvements (the "Substituted Property") for existing Leased Property,
or to remove real property or improvements from the definition of Leased Property, upon
compliance with all of the conditions set forth in subsection (b). After a Substitution or
Removal, the part of the Leased Property for which the Substitution or Removal has
been effected shall be released from the leasehold hereunder and all right, title and
interest in and to such Leased Property shall vest in the City. In connection with such
release of part of the Leased Property, the Authority shall execute such conveyances,
deeds, and other documents, and shall take or cause to be taken all actions that are
necessary to provide that such released Leased Property constitutes a valid legal
parcel, the ownership of which is recordable in the real property records of the County
of Riverside for which a title insurance policy may be legally obtained, as may be
necessary to effect such vesting of record.
(b) No Substitution or Removal shall take place hereunder until the City
delivers to the Authority, the Credit Entity and the Trustee the following:
(1) A Certificate of the City containing, in the event of a
Removal, a description of all or part of the Leased Property to be released and,
in the event of a Substitution, a description of the Substituted Property to be
substituted in its place and a certification that the remaining useful life of the
Substituted Property is not less than the remaining term of the Lease;
(2) A Certificate of the City stating that the fair rental value of the
Leased Property after a Substitution or Removal, in each year during the
remaining term of this Lease is at least equal to the Base Rental payments in
each such year attributable to the Leased Property prior to said Substitution or
Removal, as determined by the City on the basis of evidence satisfactory to Bond
Counsel and the Credit Entity of the fair rental value of the Leased Property after
said Substitution or Removal;
(3) An Opinion of Counsel to the effect that the amendments
hereto contemplating Substitution or Removal have been duly authorized,
executed and delivered and constitute the valid and binding obligations of the
City and the Authority enforceable in accordance with their terms;
8
(4) In the event of a Substitution, a policy of title insurance in an
amount equal to the same proportion of the principal amount as the Base Rental
payments for the Substituted Property bears to the total Base Rental payments,
insuring the City's leasehold interest in the Substituted Property (except any
portion thereof which is not real property) subject to Permitted Encumbrances,
together with an endorsement thereto making said policy payable to the Trustee
for the benefit of the Owners of the Bonds and the Credit Entity;
(5) In the event of a Substitution, an opinion of the City Attorney
of the City to the effect that the exceptions, if any, contained in the title insurance
policy referred to in (4) above do not interfere with the beneficial use and
occupancy of the Substituted Property described in such policy by the City for the
purposes of leasing or using the Substituted Property;
(6) Evidence that the City has complied with the covenants
contained in clauses (1) and (2) of Section 6.03 with respect to the Substituted
Property;
(7) Evidence that the City has delivered to any rating agency
then rating the Bonds copies of the certificates and appraisal described in
clauses (1) and (2) above, and that the rating agency has indicated that such
Removal or Substitution, in and of itself, will not result in a lower rating on the
Bonds;
(8) Written Consent of the Credit Entity; and
(9) Evidence that the parties hereto have amended this Lease
(and any "short form" or "Memorandum of Lease Agreement" recorded pursuant
to Section 11.09) to properly reflect such Removal or Substitution.
(c) The City may grant or vacate, or cause the granting or vacating of,
any easement burdening or benefiting the Leased Property, provided that the City shall
satisfy the requirements of subsections (b)(1) through (b)(7) (such requirements
understood to pertain to the granting or vacating of easements instead of the addition or
removal of property), which are hereby declared to be conditions precedent to such
grant or vacation. The City shall not be entitled to any reduction, diminution, extension
or other modification of the Base Rental or Additional Rental payments whatsoever as a
result of such granting and/or vacating of easements.
SECTION 2.07. Changes to the Leased Propertv. Subject to Sections
2.04, 2.05 and 4.02 and with the prior written consent of the Credit Entity, the City shall,
at its own expense, have the right to remodel the Leased Property or to make additions,
modifications and improvements to the Leased Property. All such additions,
modifications and improvements shall thereafter comprise part of the Leased Property
and be subject to the provisions of this Lease. Such additions, modifications and
improvements shall not in any way damage the Leased Property or cause it to be used
9
for purposes other than those authorized under the provisions of state and federal law;
and the Leased Properry, upon completion of any additions, modifications and
improvements made pursuant to this Section, shall be of a value which is at least equal
to the value of the Leased Property immediately prior to the making of such additions,
modifications and improvements.
SECTION 2.08. Title to the Leased Propertv. During the term of this
Lease, title to the Leased Property shall remain in the City.
SECTION 2.09. Acquisition of Additional Propertv. The City
covenants to use its best effort to acquire such additional real property as may be
necessary or appropriate for the operation of the Leased Property, and, by executing
appropriate amendments, to lease such property to the Authority pursuant to an
appropriate ground lease and to sublease such property from the Authority pursuant to
this Lease.
ARTICLE III
TERM OF THE LEASE
SECTION 3.01. Commencement of the Lease. The term hereof shall
commence as of August 31, 2009, or the date the "short form" or "Memorandum of
Lease Agreement" is recorded pursuant to Section 11.09, whichever is later, and shall
end on September 1, 2029, unless such term is sooner terminated or is extended as
hereinafter provided.
If on September 1, 2029, the Indenture shall not be discharged by its
terms or if the rental payable hereunder shall have been abated at any time and for any
reason or any amounts remain owing to the Credit Entity under the Reimbursement
Agreement or to the Collar Provider under the Interest Rate Collar Agreement, then the
term of this Lease shall be extended until ten (10) days after all Bonds shall be fully paid
and all amounts owing to the Credit Entity under the Reimbursement Agreement and to
the Collar Provider under the Interest Rate Collar Agreement have been paid; once the
Indenture shall be discharged by its terms and such payments to the Credit Entity and
the Collar Provider have been paid in full, the term of this Lease shall thereupon end,
except that the term shall in no event be extended beyond September 1, 2039.
SECTION 3.02. Termination of the Lease. This Lease will terminate
upon the earlier of either of the following events:
(a) a default by the City and the Authority's election to terminate this
Lease under Article X; or
(b) the payment by the City of all Base Rental payments, Additional
Rental and all other amounts authorized or required to be paid by it hereunder.
10
ARTICLE IV
USE OF PROCEEDS; POSSESSION OF THE LEASED PROPERTY; TAX
COVENANTS
SECTION 4.01. Use of Proceeds. The parties hereto acknowledge
and agree that the proceeds of the Bonds will be used to (i) finance the Project, (ii) fund
a reserve fund for the Bonds; and (iii) pay for Costs of Issuance.
SECTION 4.02. Possession of the Leased Propertv. The City
currently has possession of the Leased Property.
SECTION 4.03. Continuinq Disclosure. The City hereby covenants
and agrees that it will comply with the continuing disclosure requirements promulgated
under Securities and Exchange Commission Rule 15c2-12(b)(5), as it may from time to
time hereafter be amended or supplemented. The City further covenants and agrees
that it will comply with and carry out all of the provisions of the Continuing Disclosure
Agreement. Notwithstanding any other provision of this Lease, failure of the City to
comply with the Continuing Disclosure Agreement shall not be considered an Event of
Default hereunder; however, the Trustee (as assignee of the Authority under the
Assignment Agreement) may (and, at the request of any participating underwriter or the
Owners of at least 25% aggregate principal amount of Outstanding Bonds, or the Credit
Entity, upon receipt of indemnification against its fees, costs and expenses reasonably
acceptable to the Trustee, shall) or any Bondowner may take any such actions as may
be necessary and appropriate, including seeking mandate or specific performance by
court order, to cause the City to comply with its obligations under this Section 4.03.
ARTICLE V
RENTAL PAYMENTS
SECTION 5.01. Rental Pavments. The City agrees to pay to the
Authority, its successors or assigns, without deduction or offset of any kind, as rental for
the use and occupancy of the Leased Property, the following amounts at the following
times:
(a) Base Rental. The City shall pay to the Authority as Base Rental
hereunder rental payments with principal and interest components (including, but not
limited to, interest components comprised of Collar Payments). The principal and
interest components shall be payable in accordance with the Base Rental Payment
Schedule set forth in Exhibit B attached hereto and made a part hereof. To the extent
not paid as part of the interest component, the City hereby agrees also to pay Base
Rental payments equal to the Collar Payments when and as due under the Interest
Rate Collar Agreement. Amounts payable or paid by or for the account of the Authority
under the Interest Rate Collar Agreement shall constitute a portion of Base Rental
payments hereunder. Base Rental Payments shall be made by the City on the twenty-
fifth (25th) day of the month immediately preceding each Bond Payment Date (or if the
25th day of the month is not a Business Day, on the next succeeding Business Day)
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(the "Lease Payment Date"), which shall be sufficient in both time and amount to pay
when due the principal of the Bonds, as set forth in Exhibit B hereto, as such Exhibit B
may be amended and supplemented from time to time, together with interest on the
Bonds to be calculated by the Trustee as provided in Section 2.02.A of the Indenture,
and Collar Payments to be calculated by the Collar Provider as provided in the Interest
Rate Collar Agreement. Notwithstanding the foregoing, while the Interest Rate Collar
Agreement is in effect, the Lease Payment Date with respect to Collar Payments shall
be at least one (1) Business Day prior to any date on which Scheduled Collar Payments
are due under the Interest Rate Collar Agreement, which is currently the first day of
each month (or if such day is not a Business Day, then on the first Business Day
occurring thereafter), commencing October 1, 2009. The interest components of the
Base Rental (including, but not limited to, interest components comprised of Collar
Payments) payable by the City hereunder shall be paid by the City as and shall
constitute interest paid on the principal components of the Base Rental payable by the
City hereunder.
Payment of Base Rental and Additional Rental for each rental payment
period during the term hereof shall constitute the total rental for such rental payment
period, and shall be paid by the City in each rental payment period for and in
consideration of the right to the use and occupancy, and the continued quiet enjoyment,
of the Leased Property during the rental payment period for which such rental is paid.
The City shall provide written notice to the Trustee, the Credit Entity, the
Collar Provider, and the Authority at least five (5) Business Days prior to any Lease
Payment Date upon which the City expects to be unable to appropriate and pay the
Base Rental payment due on such Lease Payment Date, informing the Trustee, the
Credit Entity, the Collar Provider, and the Authority of such inability to appropriate and
pay.
The Authority shall observe and perform all of the covenants, agreements
and conditions on its part required to be observed and performed under the Interest
Rate Collar Agreement. The Authority shall not take or omit to take any action within its
control which would, or which if not corrected with the passage of time, would constitute
an event of default under the Interest Rate Collar Agreement. To the extent the
Authority is obligated to pay a Settlement Amount (as such term is defined in the
Interest Rate Collar Agreement) to the Collar Provider upon the designation or the
deemed occurrence of an Early Termination Date (as defined in the Interest Rate Collar
Agreement), the City's Base Rental payment obligation shall be increased to provide
sufficient amounts to pay such Settlement Amount to the Interest Rate Collar Provider in
accordance with the Interest Rate Collar Agreement; rop vided, in the event that the
Settlement Amount, together with other Base Rental and Additional Rental payable by
the City during the Rental Period which the Settlement Amount is incurred, exceeds the
fair rental value of the Leased Property in such Rental Period (if the Collar Provider
disagrees with the fair rental value used for this purpose, such disagreement shall be
resolved by using the fair rental value determined by an independent MAI (Member
Appraisal Institute)-designated appraiser having experience with appraising commercial
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real property and selected by the Collar Provider, and the cost of such appraisal shall
be shared equally by the City and the Collar Provider), (a) the amount of such Base
Rental payment obligation in respect of such Settlement Amount payable in such year
shall be reduced such that the total Base Rental and Additional Rental payments paid
equal the maximum fair rental value of the Leased Property in Rental Period, and
(b) the balance of the Base Rental payments constituting the remaining Settlement
Amount (the "Deferred Base Rental Payment Obligation"), together with interest
accrued thereon as set forth below, shall be paid in one or more annual installments on
the first Business Day of the Authority's next succeeding fiscal years until paid in full,
with the amount of the installment payable in any such year, including accrued interest
at the rate provided in the Interest Rate Collar Agreement, to be equal to the lesser of
(i) the unpaid balance of the Deferred Base Rental Payment Obligation, including
accrued interest, and (ii) the amount which, when included in the other Base Rental and
Additional Rental payment obligations payable by the City under this Lease in such
Rental Period, will result in such increased Base Rental payment obligation, when
added to the Additional Rental for such Rental Period, being equal to the maximum
annual fair rental value of the Property in such Rental Period. For purposes of the
foregoing, interest on the Deferred Base Rental Payment Obligation shall accrue as set
forth in the Interest Rate Collar Agreement.
If the term of this Lease shall have been extended pursuant to Section
3.01, Base Rental payments shall continue to be due on Lease Payment Dates, and
payable as hereinabove described, continuing to and including the date of termination of
this Lease. Upon such extension of this Lease, the principal and interest components of
the Base Rental shall be established so that the principal components will in the
aggregate be sufficient to pay all unpaid principal components with interest components
sufficient to pay all unpaid interest components plus interest on the extended principal
components at a rate equal to the rate of interest on the principal component of the
Base Rental payable on the Lease Payment Date with respect to September 1 of the
year after the date of such extension.
The parties hereto have agreed and determined that the Base Rental
payments shown in the Base Rental Payment Schedule set forth in Exhibit B hereto
represent the fair market value of the Leased Property. In making such determination,
consideration has been given to the costs of the Leased Property, the fair market value
thereof, the other obligations of the parties hereunder, the uses and purposes which
may be served by the Leased Property and the benefits therefrom which will accrue to
the City, its residents and the general public.
Each installment of Base Rental and Additional Rental payable hereunder
shall be paid in lawful money of the United States of America to or upon the order of the
Authority at the office of the Trustee. To the extent permitted by law, any such
installment of Base Rental or Additional Rental accruing hereunder which shall not be
paid when due shall bear interest at the rate equal to the interest rate applicable to the
delinquent installment of Base Rental or, in the case of Additional Rental (other than
amounts owing to the Credit Entity under the Reimbursement Agreement), the interest
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rate on the Bonds on the date the Additional Rental was not paid, and in the case of
amounts owing to the Credit Entity under the Reimbursement Agreement, at the rate of
interest set forth in the Reimbursement Agreement. All such delinquent installments of
Base Rental and the interest thereon shall be deposited in the Lease Payment Account
of the Debt Service Fund. All such delinquent installments of Additional Rental and
interest thereon shall be paid to the order of the Authority, the Trustee or the Credit
Entity. Notwithstanding any dispute between the Authority, or the Trustee and the City,
the City shall make all rental payments when due hereunder without deduction or offset
of any kind and shall not withhold any rental payments pending the final resolution of
such dispute.
(b) Additional Rent. The City shall pay to the Authority as Additional
Rental hereunder such amounts in each year as shall be required by the Authority for
the payment in full of payments to the Credit Entity required by the Reimbursement
Agreement (other than reimbursement for draws on the Credit Facility which are
payable from Base Rental), all costs and expenses incurred by the Authority, and the
Trustee in connection with the execution, performance or enforcement hereof or any
assignment hereof, of the Indenture and of the lease of the Leased Property to the City,
including but not limited to payment of all fees, costs and expenses and all
administrative costs of the Authority, and the Trustee in connection with the Leased
Property, the Lease, the Interest Rate Collar Agreement, and the Indenture and all
taxes, assessments and governmental charges of any nature whatsoever hereafter
levied or imposed by any governmental authority against the Authority, the Leased
Property, or the rentals and the other payments required to be made by the City
hereunder. Such Additional Rental shall be billed to the City by the Authority, or the
Trustee from time to time, together with a statement certifying that the amount so billed
has been paid by the Authority, or the Trustee for one or more of the items above
described, or that such amount is then payable by the Authority, or the Trustee for one
or more of such items, and all amounts so billed shall be due and payable by the City
within thirty (30) days after receipt of each bill therefor by the City.
(c) Earned Excess Amount. Notwithstanding anything contained
herein to the contrary, the difference in each annual lease period commencing on
August 24 and ending on each August 25 (a "Rental Period"), or portion thereof,
between (i) the fair rental value of the Leased Property, which the parties agree for this
purpose is an amount equal to gross Tenant Rents and Profits actually received by the
City during such Rental Period, and (ii) the Base Rental and Additional Rental, actualty
paid by the City during such Rental Period (together referred to as "Annual Rent"), or
portion thereof, to the extent that such Annual Rent actually paid is less than such fair
rental value (the "Earned Excess Amount"), shall be allocated by the City to a reserve
account held by the City with respect to the Leased Property and, to the extent
necessary, be paid by the City in any future Rental Period, or portion thereof, in which
the sum of the Annual Rent exceeds the fair rental value in such Rental Period, or
portion thereof; provided, however, that any such Earned Excess Amount which, when
added to unused Earned Excess Amounts from prior years, is greater than Five Million
Five Hundred Thousand Dollars ($5,500,000) shall, to the extent of that difference, be
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discharged, shall not be paid by the City to the Authority in any future year, and may be
used by the City for any lawful purpose. The obligation to pay any portion of the Earned
Excess Amount shall not arise until the Rental Period during which such Earned Excess
Amount is required to be applied and in no event shall any Earned Excess Amount be
used to pay Base Rental which would have accrued during any period of abatement
with respect to such Base Rental.
(d) Safekeepinq Set-Aside. Prior to or on the Closing Date, the City
shall deposit, or cause to be deposited, into the Developer Claim Safekeeping Fund
established under the Indenture the amount of $2,455,000, which is equivalent to
projected payments of principal and interest on the Bonds assuming an interest rate of
5.25% (the cap rate established by the Rate Collar Agreement) through September 1,
2014. The City and the Authority hereby agree that such moneys shall remain on
deposit and shall be available for the Authority to use for payments of principal and
interest on the Bonds pursuant to Section 3.05 of the Indenture, but only in the event
there is a judgment or settlement with respect to the Developer Claim that would impair
the ability of the City to pay Base Rental or any Additional Rental when due under this
Lease, until the occurrence of the earlier of the following (each, a "Safekeeping Release
Test"): (i) August 30, 2014; (ii) all of the Developer Claimants fail to timely file a
complaint against the City or any related entity or person of the City in a court of
competent jurisdiction, within six (6) months after the date of the letter or other written
correspondence provided by the City to the Developer Claimants pursuant to the Tort
Claims Act (California Government Code Section 810 et seq.) to reject the Developer
Claim; (iii) if a complaint relating to the Developer Claim has been timely filed by the
Developer Claimants, or any of them, pursuant to the Tort Claims Act, (A) such
complaint shall have been dismissed against the City and any related person(s) or
entity(ies) of the City, or (B) a judgment in amount less than $2,455,000 shall have been
issued with respect to such complaint. Upon the satisfaction of a Safekeeping Release
Test, the Authority shall provide a Written Request of the Authority to the Trustee
pursuant to Section 3.05 of the Indenture, stating that one of the Safekeeping Release
Tests (as defined in the Lease) has been satisfied, that moneys in the Developer Claim
Safekeeping Fund are no longer required to be maintained therein pursuant to the
Lease, and directing the Trustee to transfer all moneys then on deposit in the Developer
Claim Safekeeping Fund to the City to be used for any lawful purpose free and clear of
the lien of the Indenture.
SECTION 5.02. Annual Budgets; Reportinq Reauirements.
(a) The City covenants to take action as may be necessary to include
all such rental payments due hereunder (i.e., Base Rental and any Additional Rental) in
its annual budgets and to make the necessary annual appropriations for all such rental
payments. Further, the City agrees and covenants that it shall make each annual
appropriation pursuant to this Section 5.02 for Base Rental and any Additional Rental
due hereunder prior to any appropriation with respect to such fiscal year for payment of
a final judgment, if any, issued in connection with any complaint timely filed by any
Developer Claimant with respect to the Developer Claim pursuant to the Tort Claims
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Act, and the City and the Authority agree that the annual appropriation for Base Rental
and any Additional Rental pursuant to this Section 5.02 shall constitute a contractual
restriction upon funds of the City in accordance with Section 970.4 of the Government
Code. For this budgetary purpose, and while the Bonds bear interest at the Weekly
Rate, the City shall assume an interest component for any Fiscal Year equal to (i) while
the Interest Rate Collar is in effect, an annual interest rate of 5.25%; and (ii) if the
Interest Rate Collar has terminated or is no longer in effect, the average interest rate
borne by the Bonds during the 12 months preceding the time of consideration, plus 200
basis points; and for this budgetary purpose, the City also shall include (x) the annual
Additional Rental attributable to the annual fees of any Credit Facility then in effect
(including without limitation the irrevocable letter of credit being provided by the Wells
Fargo Bank, National Association, on the Closing Date with respect to the Bonds), (y)
the annual Additional Rental attributable to annual fees of the Tender Agent under the
Indenture, and (z) the annual Additional Rental attributable to annual fees of the Trustee
under the Indenture. The City shall furnish to the Trustee by July 31 of each Fiscal Year
a copy of the annual budget adopted by the City Council with respect to such Fiscal
year, together with a certificate stating that it has included in the annual budget (as
adopted by the City Council of the City) all Base Rental and Additional Rental due
hereunder in the Fiscal Year covered by such adopted annual budget, calculated in
accordance with this Section 5.02.
To the extent that the amount of any such payment becomes known after
the adoption of the annual budget, such amounts shall be included and maintained in
such budget as amended. The City covenants to take such action as is necessary to
include such amounts in a supplemental budget of the City. The covenants on the part
of the City herein contained shall be deemed to be and shall be construed to be
ministerial duties imposed by law and it shall be the ministerial duty of each and every
public official of the City to take such action and do such things as are required by law in
the performance of the official duty of such officials to enable the City to carry out and
perform the covenants and agreements in this Lease agreed to be carried out and
performed by the City.
The obligation of the City to pay Base Rental and Additional Rental
hereunder shall constitute a current expense of the City and shall not in any way be
construed to be a debt of the City, or the State, or any political subdivision thereof, in
contravention of any applicable constitutional or statutory limitation or requirements
concerning the creation of indebtedness by the City, the State, or any political
subdivision thereof, nor shall anything contained herein constitute a pledge of general
revenues, funds or moneys of the City beyond the Fiscal Year for which the City has
appropriated funds to pay Base Rental and Additional Rental hereunder or an obligation
of the City for which the City is obligated to levy or pledge any form of taxation or for
which the City has levied or pledged any form of taxation.
(b) The City hereby covenants to take such action as may be
necessary to effect, from any monies lawfully available to the City for such purpose, a
reimbursement to the City's General Fund in the amount of $531,000, which amount
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equals the balance of the initial General Fund advance (authorized by Resolution No.
08-89 of the City Council of the City, adopted on August 28, 2008) not reimbursed to the
City's General Fund from proceeds of the Bonds, as soon as practicable, and in any
event no later than including such reimbursement in its annual budget for the 2010-2011
Fiscal Year and to make any necessary appropriations therefor.
SECTION 5.03. Application of Rental Pavments. All rental payments
received shall be applied first to the interest components of the Base Rental payments
due hereunder (including, but not limited to, interest components comprised of Collar
Payments) on a parity, equally and ratably; then to the principal components (including
any prepayment premium components) of the Base Rental payments due hereunder;
and thereafter to all Additional Rental due hereunder, but no such application of any
payments which are less than the total rental due and owing shall be deemed a waiver
of any default hereunder.
SECTION 5.04. Rental Abatement. Except to the extent of (i)
amounts held by the Trustee in the Debt Service Fund, (ii) amounts received in respect
of rental interruption insurance, and (iii) amounts, if any, otherwise legally available to
the Trustee for payments in respect of the Bonds, during any period in which, by reason
of material damage, destruction, title defect or condemnation there is substantial
interference with the use and possession by the City of any portion of the Leased
Property, rental payments due hereunder with respect to such portion of the Leased
Property shall be abated proportionately by an amount such that the portion of Base
Rental remaining unabated represents the fair rental value of the remaining portion of
the Leased Property, as calculated by the City and set forth in writing to the Authority,
the Trustee and the Credit Entity. Any abatement of rental payments pursuant to this
Section shall not be considered an event of default as defined in Article X hereof. The
City waives the benefits of Civil Code Sections 1932(1), 1932(2) and 1933(4) and any
and all other rights to terminate the Lease by virtue of any such interference and the
Lease shall continue in full force and effect. Such abatement shall continue for the
period commencing with the date of such damage, destruction, title defect or
condemnation and ending with the substantial completion of the work of repair or
replacement of the portions of the Leased Property so damaged, destroyed, defective or
condemned.
In the event that rental is abated, in whole or in part, pursuant to this
Section due to damage, destruction, title defect or condemnation of any part of the
Leased Property and the City is unable to repair, replace or rebuild the Leased Property
from the proceeds of insurance, if any, the City agrees to apply for and obtain, if
reasonably available, any appropriate state and/or federal disaster relief in order to
obtain funds to repair, replace or rebuild the Leased Property.
SECTION 5.05. Prepavment of Rental Payments.
(a) Prepavment from Net Proceeds. The City may prepay, from Net
Proceeds received by it pursuant to Section 7.01, all or any portion of the components
17
of Base Rental relating to any portion of the Leased Property then unpaid, in whole on
any date, or in part on any Bond Payment Date in Authorized Denominations.
(b) Optional Prepavment. Subject to the terms and conditions of this
Section, the Authority hereby grants an option to the City to prepay in whole or in part
the principal components of Base Rental payments relating to the Leased Property, to
the extent, on the dates and at the redemption prices provided in Section 4.03 of the
Indenture as such Section 4.03 may be amended from time to time with respect to
conversion to a Fixed Rate; provided, that any such prepayment shall only be
undertaken if the Interest Rate Collar Agreement is terminated in a proportionate
amount to the amount of the principal component that is being prepaid and the City
provides sufficient funds to pay any related Collar Payment concurrently with the
prepayment of the principal component. The City shall execute said option by giving
written notice to the Trustee thereof at least 45 days (or such shorter period as
approved by the Trustee) prior to the date of redemption of Bonds from such
prepayment and depositing with said notice cash in the minimum amount of (1) accrued
interest on the principal component of Base Rental payments to be prepaid to the date
of redemption of Bonds with the proceeds of such prepayment, plus (2) the principal
component of any Base Rental payments to be prepaid, plus (3) the applicable
redemption premium described in such Section 4.03 of the Indenture, and plus (4) the
amount of Collar Payments that will be due in connection with such prepayment.
SECTION 5.06. Obliqation to Make Rental Pavments. The
agreements and covenants on the part of the City contained herein shall be deemed to
be and shall be construed to be duties imposed by law and it shall be the duty of each
and every public official of the City to take such action and do such things as are
required by law in the performance of the official duty of such officials to enable the City
to carry out and perform the agreements and covenants contained herein agreed to be
carried out and performed by the City.
THE OBLIGATION OF THE CITY TO MAKE BASE RENTAL PAYMENTS
DOES NOT CONSTITUTE AN OBLIGATION OF THE CITY FOR WHICH THE CITY IS
OBLIGATED TO LEVY OR PLEDGE ANY FORM OF TAXATION OR FOR WHICH THE
CITY HAS LEVIED OR PLEDGED ANY FORM OF TAXATION. NEITHER THE
BONDS NOR THE OBLIGATION TO MAKE SUCH BASE RENTAL PAYMENTS
CONSTITUTES AN INDEBTEDNESS OF THE CITY, THE STATE OF CALIFORNIA
OR ANY POLITICAL SUBDIVISION THEREOF WITHIN THE MEANING OF ANY
CONSTITUTIONAL OR STATUTORY DEBT LIMITATION OR RESTRICTION.
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ARTICLE VI
MAINTENANCE; TAXES; INSURANCE AND OTHER CHARGES
SECTION 6.01. Maintenance of the Leased Propertv bv the Citv. The
City agrees that, at all times during the term hereof, it will, at its own cost and expense,
maintain, preserve and keep the Leased Property and every portion thereof in good
repair, working order and condition and that it will from time to time make or cause to be
made all necessary and proper repairs, replacements and renewals. The Authority shall
have no responsibility in any of these matters or for the making of additions or
improvements to the Leased Property.
SECTION 6.02. Taxes Other Governmental Charqes and Utilitv
Charqes. The parties hereto contemplate that the Leased Property will be used for
public purposes, in furtherance of the Energy Independence Program, by the City and
the Authority pursuant to the terms of the Indenture, the Site Lease, and this Lease,
and, therefore, that their respective leasehold interests in the Leased Property under the
Site Lease and this Lease will be exempt from all taxes presently assessed and levied
with respect to real and personal property, respectively. The parties acknowledge that
(i) the Leased Property is a commercial office complex; (ii) although the City's
ownership interest in the Leased Property is exempt from property taxation under
applicable law, and the Authority's and City's respective leasehold interests under the
Site Lease and this Lease are exempt from taxation as set forth in the forgoing
sentence, pursuant to the California Revenue and Taxation Code, the County of
Riverside assesses a possessory interest tax on the leasehold interest of the lessees
leasing the space, payable by each such lessee unless it is granted an exemption by
the County, generally provided to non-profit organizations and governmental and quasi-
governmental agencies; (iii) any delinquencies in such possessory interest taxes are
transferred to the unsecured roll and become and immediate lien on the lessee, not the
Leased Property; and (iv) pursuant to the City's Tenant Lease Agreements with any
non-governmental entities and applicable law, such possessory interest taxes and any
personal properry taxes on trade fixtures, furnishing, and equipment are the
responsibility and obligation of, and payable by, the applicable lessees of the Leased
Property, and not of, or by, the City or the Authority. In the event that the use,
possession or acquisition by the City or the Authority of the Leased Property is found to
be subject to taxation in any form, the City will pay during the term hereof, as the same
respectively become due, all taxes and governmental charges of any kind whatsoever
that may at any time be lawfully assessed or levied against or with respect to the
Leased Property and any other properry acquired by the City in substitution for, as a
renewal or replacement of, or a modification, improvement or addition to the Leased
Property, as well as all gas, water, steam, electricity, heat, power, air conditioning,
telephone, utility and other charges incurred in the operation, maintenance, use,
occupancy and upkeep of the Leased Property which are the responsibility of the City
under the Tenant Lease Agreements (as opposed to those which are the responsibility
of the lessees under the Tenant Lease Agreements); provided, that with respect to any
governmental charges or taxes that may lawfully be paid in installments over a period of
19
years, the City shall be obligated to pay only such installments as are accrued during
such time as this Lease is in effect.
SECTION 6.03. Insurance. The City shall procure or cause to be
procured and maintain or case to be maintained through the term hereof for the Leased
Property insurance against the following risks in the following respective amounts:
(1) insurance against loss or damage to the Leased Property or
such structure or item of furniture or equipment caused by fire or lightning, with
an extended coverage endorsement and vandalism and malicious mischief
insurance, which such extended coverage insurance shall, as nearly as
practicable, cover loss or damage by explosion, windstorm, riot, aircraft, vehicle
damage, smoke and such other hazards as are normally covered by such
insurance. The insurance required by this paragraph shall be in an amount equal
to the replacement cost (without deduction for depreciation) of improvements
located or to be located on the Leased Properiy but shall be not less than the
principal amount of the Outstanding Bonds plus $625,000 (an amount equal to
the estimated maximum termination amount of the Interest Rate Collar
Agreement) (except that such insurance may be subject to deductible clauses of
not to exceed ten percent (10%) of the amount of any one loss);
(2) rental interruption insurance against the Authority's loss of
income due to events giving rise to the right of abatement on the part of the City
under this Lease in an amount sufficient to pay the total Base Rental payments
attributable to the Leased Property for a 24 month period (measured by the Base
Rental payments for the 24 months following the month in which the insurance
commences and assuming for such purpose that interest components will be
payable at a fixed rate of 12% per annum or such lesser amount as may be
agreed upon by the Credit Entity); provided, that the amount of such insurance
need not exceed the total remaining Base Rental payments attributable to the
Leased Property;
(3) workers' compensation insurance covering all employees
working in or on the Leased Property, in the same amount and type as other
workers' compensation insurance maintained by the City for similar employees
doing similar work; and the City shall also require any other person or entity
working in or on the Leased Property to carry the foregoing amount of workers'
compensation insurance;
(4) a standard comprehensive public entity liability insurance
policy or policies in protection of the City, the Authority, and their respective
directors, officers and employees and the Trustee, and the Credit Entity as
add�itional insured, indemnifying and defending such parties against all direct or
contingent loss or liability for damages for personal injury, death or property
damage occasioned by reason of the possession, operation or use of the Leased
Property. Such public liability and property damage insurance shall be in the
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form of a single limit policy in the amount of not less than three million dollars
($3,000,000), subject to a deductible clause of not to exceed $250,000, covering
all such risks; and
(5) a CLTA standard coverage leasehold policy of title insurance
on the Leased Property in an amount at least equal to the initial aggregate
amount of the principal amount of Base Rental payments plus $625,000 (an
amount equal to the estimated maximum termination amount of the Interest Rate
Collar Agreement), issued by a company of recognized standing duly authorized
to issue the same. The title policy or policies shall insure the City's leasehold
estate hereunder with respect to the Leased Property, subject only to Permitted
Encumbrances together with an endorsement thereto making said policy payable
to the Trustee for the benefit of the Owners of the Bonds and the Credit Entity.
Insurance coverage required by paragraphs (1), (2), (3) and (4) may be
maintained as part of or in conjunction with any other insurance coverage carried by the
City, and may be maintained in whole or in part in the form of insurance maintained
through a joint exercise of powers agency created for such purpose or other program
providing pooled insurance.
Notwithstanding the above provisions, as an alternative to providing the
insurance required by paragraphs (1), (3) and (4) above, with the prior written consent
of the Credit Entity, the City may provide a self-insurance method or plan of protection.
Any such self-insurance maintained by the City pursuant to the foregoing sections, shall
be similar in nature and scope to self-insurance programs maintained by other
California cities of comparable size and operations, and shall be reviewed annually by
an Insurance Consultant.
Any insurance policy issued pursuant to Section 6.03(1) shall be so written
or endorsed as to make losses, if any, payable to the City, the Authority, the Credit
Entity, the Collar Provider, and the Trustee as their respective interests may appear and
the net proceeds of the insurance required in Section 6.03(1) shall be applied as
provided in Section 7.01. The net proceeds, if any, of the insurance poticy described in
Section 6.03(2) shall be payable to the Trustee and deposited in the Debt Service Fund.
Each insurance policy provided for in this Section shall contain a provision to the effect
that the insurance company shall not cancel the policy or modify it materially and
adversely to the interests of the Authority, the Credit Entity, the Collar Provider, or the
Trustee without first giving written notice thereof to the Authority, the Credit Entity, the
Collar Provider, and the Trustee at least sixty (60) days in advance of such intended
cancellation or modification; provided, that the Trustee shall not be responsible for the
sufficiency of any insurance herein required and shall be fully protected in accepting
payment on account of such insurance or any adjustments, compromise or settlement
of any loss agreed to by it.
The City shall file a certificate with the Authority, the Trustee, the Collar
Provider, and the Credit Entity not later than September 1 of each year certifying that
21
the insurance required by this section is in full force and effect and that the Trustee, the
Collar Provider, and the Credit Entity are named as loss payees and/or additional
insureds on each insurance policy which this Lease requires to be so endorsed. In the
event that the City obtains insurance through a pooled insurance program of
governmental entities, an annual statement or memorandum of coverage delivered to
the Authority, the Trustee, the Collar Provider, and the Credit Entity will satisfy the
requirements of this paragraph.
Notwithstanding the generality of the foregoing, the City shall not be
required to maintain or cause to be maintained more insurance than is specifically
referred to above or any policies of insurance other than standard policies of insurance
with standard deductibles offered by reputable insurers at a reasonable cost on the
open market.
SECTION 6.04. Advances. In the event the City shall fail to maintain
the full insurance coverage required hereby or shall fail to keep the Leased Property in
good repair and operating condition, the Authority may (but shall be under no obligation
to) purchase the required policies of insurance and pay the premiums on the same or
may make such repairs or replacements as are necessary and provide for payment
thereof; and all amounts so advanced therefor by the Authority shall become Additional
Rental, which amounts the City agrees to pay within thirty (30) days of a written request
therefor, together with interest thereon at the maximum rate allowed by law.
ARTICLE VII
DAMAGE, DESTRUCTION, TITLE DEFECT AND CONDEMNATION
SECTION 7.01. Damaae Destruction, Title Defect and
Condemnation; Use of Net Proceeds. If prior to the termination of the term hereof (a)
the Leased Property or any portion thereof is destroyed (in whole or in part) or is
damaged by fire or other casualty; or (b) title to, or the temporary use of, the Leased
Property or any portion thereof or the estate of the City or the Authority in the Leased
Property or any portion thereof is defective 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 City shall, as expeditiously as
possible, continuously and diligently cause the repair or replacement thereof (unless the
City elects not to repair or replace), and the City and the Authority will cause the Net
Proceeds remaining after such work has been completed to be paid to the City;
provided, that the City, at its option with the prior written consent of the Credit Entity and
provided that the proceeds of such insurance or condemnation award together with any
other moneys then available for the purpose are at least sufficient to prepay aggregate
annual amounts of principal and interest on any Outstanding Bonds and related Collar
Payments (including Termination Payments) attributable to the Base Rental payments
with respect to that portion of the Leased Property so destroyed, damaged, defective or
condemned (determined by reference to the proportion which the fair rental value of the
destroyed, damaged, defective or condemned portion thereof bears to the fair rental
value of the entire Leased Property), may elect not to repair, reconstruct or replace the
22
damaged, destroyed, defective or condemned portion of the Leased Property and
thereupon shall cause said Net Proceeds to be used for the redemption of Outstanding
Bonds pursuant to the provisions of Section 4.02 of the Indenture and payments of
related amounts due pursuant to the Interest Rate Collar Agreement in connection with
the redemption Base Rental components pursuant to Section 5.05(a) hereof on a parity,
equally and ratably.
In the event that the Net Proceeds, if any, are insufficient either to (i)
repair, rebuild or replace the Leased Property so that the fair rental value of the Leased
Property would be at least equal to the Base Rental payments or (ii) to prepay the
Outstanding Bonds and related Collar Payments (including Termination Payments),
both as provided in the preceding paragraph, then the City may, in its sole discretion,
budget and appropriate an amount necessary to effect such repair, rebuilding or
replacement or prepayment; provided that the failure of the City to so budget and/or
appropriate shall not be a breach of or default under this Lease. If the City does not
elect to so budget and/or appropriate, it shall use its best efforts to substitute the
Leased Property with property of sufficient fair rental value (approved by the Credit
Entity) to support payment of the Base Rental and Additional Rental scheduled to be
paid under this Lease. Nothing in this Section 7.01 is intended or shall be construed to
require an abatement of the Collar Payments component of Base Rental payments due
to circumstances which result in the abatement of Base Rental payments, or to have
any affect whatsoever on the obligations of the Authority under the Interest Rate Collar
Agreement.
ARTICLE VIII
DISCLAIMER OF WARRANTIES;
VENDOR'S WARRANTIES; USE OF THE LEASED PROPERTY
SECTION 8.01. Disclaimer of Warranties. NEITHER THE TRUSTEE
NOR THE AUTHORITY MAKES ANY AGREEMENT, WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN,
CONDITION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
FITNESS FOR USE OF THE LEASED PROPERTY, OR WARRANTY WITH RESPECT
THERETO. THE CITY ACKNOWLEDGES THAT NEITHER THE TRUSTEE NOR THE
AUTHORITY IS A MANUFACTURER OF ANY PORTION OF THE LEASED
PROPERTY OR A DEALER THEREIN, THAT THE CITY LEASES THE LEASED
PROPERTY AS-IS, IT BEING AGREED THAT ALL OF THE AFOREMENTIONED
RISKS ARE TO BE BORNE BY THE CITY. In no event shall the Authority or the
Trustee be liable for any incidental, indirect, special or consequential damage in
connection with or arising out of the Lease or the existence, furnishing, functioning or
the City's use of the Leased Property as provided hereby.
SECTION 8.02. Vendor's Warranties. The Authority hereby
irrevocably appoints the City its agent and attorney-in-fact during the term of this Lease,
so long as the City shall not be in default hereunder, to assert from time to time
whatever claims and rights, including warranties of the Leased Property, which the
23
Authority may have against the manufacturers, vendors and contractors of the Leased
Properry. The City's sole remedy for the breach of such warranty, indemnification or
representation shall be against the manufacturer or vendor or contractor of the Leased
Property, and not against the Authority or the Trustee, nor shall such matter have any
effect whatsoever on the rights and obligations of the Authority with respect to this
Lease, including the right to receive full and timely payments hereunder. The City
expressly acknowledges that neither the Trustee nor the Authority makes, and has
made, any representation or warranties whatsoever as to the existence or availability of
such warranties of the manufacturer, vendor or contractor.
SECTION 8.03. Use of the Leased Propertv.
(a) The City will not use, operate or maintain the Leased Property
improperly, carelessly, in violation of any applicable law or in a manner contrary to that
contemplated hereby. The City shall provide all permits and licenses, if any, necessary
for the use of the Leased Property. In addition, the City agrees to comply in all respects
(including, without limitation, with respect to the use, maintenance and operation of
each portion of the Leased Property) with all laws of the jurisdictions in which its
operations involving any portion of the Leased Property may extend and any legislative,
executive, administrative or judicial body exercising any power or jurisdiction over the
Leased Property; provided, that the City may contest in good faith the validity or
application of any such law or rule in any reasonable manner which does not, in the
opinion of the City adversely affect the estate of the Authority or the Trustee in and to
the Leased Property or its interest or rights hereunder.
(b) The City herein covenants by and for itself and its successors and
assigns, and all persons claiming under or through it, and this Lease is made and
accepted upon and subject to the following conditions:
That there shall be no discrimination against or segregation of any person
or group of persons, on account of race, color, creed, religion, sex, marital status,
national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy,
tenure, or enjoyment of the Leased Property nor shall the City itself, or any person
claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or
occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the Leased
Property.
ARTICLE IX
ASSIGNMENT AND INDEMNIFICATION
SECTION 9.01. Assiqnment by Authoritv. The parties understand that
certain of the rights of the Authority, as assignee hereunder, will be assigned to the
Trustee pursuant to the Assignment Agreement, and the City hereby consents to such
assignment. Accordingly the City agrees to make all payments due hereunder to the
Trustee, notwithstanding any claim, defense, setoff or counterclaim whatsoever
24
(whether arising from a breach hereof or otherwise) that the City may from time to time
have against the Authority or the Trustee. The City agrees to execute all documents,
including notices of assignment or financing statements which may be reasonably
requested by the Authority or the Trustee to protect their interests in the Leased
Property during the term hereof.
SECTION 9.02. Assiqnment bv Citv and Sublease. This Lease and
the interest of the City in the Leased Property may not be assigned or encumbered by
the City except with the written consent of the Credit Entity and except as provided in
Section 2.04. The City may sublease all or any portion of the Leased Property in
connection with the issuance by the Authority or additional bonds for the purpose of
completing and/or making improvements to the Project. The City shall at all times
remain liable for the performance of the covenants and conditions on its part to be
performed under this Lease. Nothing herein contained shall be construed to relieve the
City from its obligation to pay Base Rental and Additional Rental as provided in this
Lease or to relieve the City from any other obligations contained herein.
SECTION 9.03. Indemnification. The City shall, to the full extent then
permitted by law, indemnify, protect, hold harmless, save and keep harmless the
Authority, the Trustee, and their respective directors, officers, employees, attorneys,
consultants, receivers and agents from and against any and all liability, obligations,
losses, claims and damages whatsoever, regardless of the cause thereof, and
expenses in connection therewith, including, without limitation, counsel fees and
expenses, penalties and interest arising out of or as the result of the entering into of this
Lease or the Indenture, or any accident in connection with the operation, use, condition
or possession of the Leased Property or any portion thereof 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 City or the
Authority; any claim for patent, trademark or copyright infringement, any claim arising
out of strict liability in tort, and any claim arising out of the use, presence, storage,
disposal or release of any Hazardous Substances on or about the Leased Property.
The indemnification arising under this Section shall continue in full force and effect
notwithstanding the full payment of all obligations hereunder or the termination hereof
for any reason. The City and the Authority mutually agree to promptly give notice to
each other of any claim or liability hereby indemnified against following either's learning
thereof.
ARTICLE X
DEFAULT
SECTION 10.01. Default; Assiqnment of Rents.
(a) The following events shall be events of default under this Lease:
(i) the City shall fail to pay any item of Additional Rental as and
when the same shall become due and payable pursuant to Section 5.01(b); or
25
(ii) the City shall fail to deposit with the Trustee any Base Rental
payment required to be so deposited by the close of business on the day such
deposit is required pursuant to Section 5.01(a), provided, that failure to deposit
any Base Rental payments abated pursuant to Section 5.04 shall not constitute
an event of default;
(iii) the City shall breach any other terms, covenants or
conditions contained herein, and shall fail to remedy any such breach with all
reasonable dispatch within a period of thirty (30) days after written notice thereof
from the Authority, the Trustee, the Collar Provider, or the Credit Entity to the
City; provided, however, that if the failure stated in the notice cannot be corrected
within such period, then the Authority shall not unreasonably withhold its consent
to an extension of such time if corrective action is instituted by the City within
such period and is diligently pursued until the default is corrected.
(b) In addition to any default resulting from breach by the City of any
agreement, condition, covenant or term hereof, if (1) the City's interest herein or any
part thereof be assigned, sublet or transferred without the written consent of the
Authority and the Credit Entity, either voluntarily or by operation of law; or (2) the City or
any assignee shall file any petition or institute any proceedings under any act or acts,
state or federal, dealing with or relating to the subject of bankruptcy or insolvency or
under any amendment of such act or acts, either as a bankrupt or as an insolvent or as
a debtor or in any similar capacity, wherein or whereby the City asks or seeks or prays
to be adjudicated a bankrupt, or is to be discharged from any or all of its debts or
obligations, or offers to its creditors to effect a composition or extension of time to pay
its debts, or asks, seeks or prays for a reorganization or to effect a plan of
reorganization or for a readjustment of its debts or for any other similar relief, or if the
City shall make a general or any assignment for the benefit of its creditors; or (3) the
City shall abandon or vacate the Leased Property or any portion thereof; then in each
and every such case the City shall be deemed to be in default hereunder.
Upon the happening of any of the events specified in subsection (a) or (b)
of this Section (in either case an "Event of Default"), then it shall be lawful for the
Authority to exercise any and all remedies available or granted to it pursuant to law or
hereunder; provided, however, that notwithstanding anything herein or in the Indenture
to the contrary, in no event shall the Authority have the right to accelerate the payment
of any Base Rental under this Lease. For avoidance of doubt, the termination of the
Interest Rate Collar Agreement and calculation and payment of any amounts under the
Interest Rate Collar Agreement in connection therewith is a calculation and payment of
the economic value of the Interest Rate Collar Agreement, and not an acceleration of
the Base Rental payments. Upon the breach of any agreement, condition, covenant or
term contained herein required to be observed or performed by the City and subject to,
and as limited by, the provisions of the Tenant Lease Agreements (as defined herein),
the Authority may, with the consent of the Credit Entity, or at the direction of the Credit
Entity, shall exercise any and all rights of entry upon or repossession of the Leased
Property, and also, at its option, with or without such entry, may, with the consent of the
26
Credit Entity, or at the direction of the Credit Entity, shall terminate this Lease; provided,
that no termination shall be effected either by operation of law or acts of the parties
hereto except upon express written notice from the Authority to the City terminating this
Lease, as provided below. In the event of such default and notwithstanding any entry
by the Authority, and in each instance subject to, and as limited by, the provisions of the
Tenant Lease Agreements, the Authority may at any time thereafter (with or without
notice and demand and without limiting any other rights or remedies the Authority may
have):
(1) Maintain this Lease in full force and effect and recover rent
and other monetary charges as they become due without terminating the City's
right to possession of the Leased Property, regardless of whether or not the City
has abandoned the Leased Property. In connection therewith, the City hereby
assigns to the Authority all of the City's right, title and interest, whether now
existing or hereafter acquired, in all leases, subleases and other occupancy
agreements of any nature now or hereafter covering all or any part of the Leased
Property, together with all extensions, renewals, modifications or replacements of
said leases, subleases and occupancy agreements, and together with any and all
guarantees of the obligations of the lessees, sublessees, and occupants
thereunder, whether now existing or hereafter executed and all extensions and
renewals of said guarantees (said leases, subleases and occupancy
agreements, together with any and all guarantees, modifications, extensions and
renewals thereof, are hereinafter referred to collectively as the "Tenant Lease
Agreements" and individually as a "Tenant Lease Agreement"); provided, that no
such actions shall be deemed to terminate this Lease and the City shall continue
to remain liable for any deficiency that may arise out of such assignment of rents,
taking into account expenses incurred by the Authority due to collection of rents
under such assignment, payable at the same time and manner as provided for
Base Rental in Section 5.01.
(i) The City's purpose in making the assignment under
this Section 10.01(b)(1) is to relinquish to the Authority the City's right to collect
and enjoy the rents, royalties, issues, profits, income and other benefits at any
time accruing by virtue of the Tenant Lease Agreements in partial satisfaction of
any indebtedness of the City to the Authority from time to time existing under this
Lease (the "Tenant Rents and Profits"), and to furnish security for the
performance of the City's obligations contained herein; provided, the Authority's
right to collect any Tenant Rents and Profits under this Section 10.01(b)(1) shall
only be to the extent such Tenant Rents and Profits do not exceed the earned
but unpaid Base Rental and Additional Rental hereunder for the calendar year
immediately preceding the Authority's collection of such Tenant Rents and Profits
pursuant to such assignment.
(ii) The City and the Authority intend that the assignment
under this Section 10.01(b)(1) shall be a present, absolute and unconditional
assignment and shall, immediately upon execution, give the Authority the right to
27
collect the Tenant Rents and Profits and to apply them in payment of the
principal and interest and all other sums payable on the City's obligation under
this Lease. However, the Authority hereby grants to the City a license to collect,
subject to the provisions set forth below, the Tenant Rents and Profits, as they
respectively become due and to enforce the Tenant Lease Agreements, so long
as there is no default by the City in the performance of the terms, covenants or
provisions of this Lease. Nothing contained herein, nor any collection of Tenant
Rents and Profits by the Authority, the Trustee, or any receiver, shall be
construed to make the Authority a "mortgagee-in possession" of the Leased
Properry so long as the Authority has not itself entered into actual possession of
the Leased Property.
(iii) Upon the occurrence of any Event of Default under
the terms and conditions of this Lease, the assignment under this Section
10.01(b)(1) shall constitute a direction to, and full authority to, each lessee under
any Tenant Lease Agreement and each guarantor of any tenant Lease
Agreement to pay all Tenant Rents and Profits to the Authority without proof of
the default relied upon. The City hereby irrevocably authorizes each lessee and
guarantor under a Tenant Lease Agreement to rely upon and comply with any
notice or demand by the Authority for the payment to the Authority of any Tenant
Rents and Profits due or to become due, subject to the limitations in paragraph (i)
above.
(2) While maintaining this Lease in full force and effect and in
each instance subject to, and as limited by, the provisions of the Tenant Lease
Agreements, the Authority may elect to re-enter and re-let the Leased Property,
and recover rent and other monetary charges as they become due without
terminating the City's right to possession of the Leased Property, regardless of
whether or not the City has abandoned the Leased Property. Should the
Authority elect to re-enter and re-let the Leased Property pursuant to this Section
10.01(b)(2), it shall have the right and the City hereby irrevocably appoints the
Authority as its agent and attorney-in-fact for such purpose to attempt to re-let
the Lease Property at such rent, upon such conditions and for such term and to
do all other acts to maintain or preserve the Leased Property, all subject to the
provisions of the Tenant Lease Agreements, including removal of persons or
property therefrom or taking possession thereof, as the Authority deems
desirable or necessary (and subject to the provisions of the Tenant Lease
Agreements), and the City hereby waives any and all claims for any damages
that may result to the Leased Property thereby; provided, that no such actions
shall be deemed to terminate this Lease and the City shall continue to remain
liable for any deficiency that may arise out of such re-letting, taking into account
expenses incurred by the Authority due to such re-letting, payable at the same
time and manner as provided for Base Rental in Section 5.01.
(3) Terminate the City's right to possession of the Leased
Property by giving a written notice of termination to the City; provided, any such
28
election to terminate shall be subject to, and limited by, the provisions of the
Tenant Lease Agreements. Subject to the provisions of the Tenant Lease
Agreements, on the date specified in such notice (which shatl be not less than
three (3) days after the giving of such notice) the City's right to possession under
this Lease shall terminate and the City shall surrender possession of the Leased
Property to the Authority, unless on or before such date all arrears of rental and
all other sums payable by the City hereunder, and all costs and expenses
incurred by or on behalf of the Authority hereunder, including attorney's fees
incurred in connection with such defaults, shall have been paid by the City and all
other defaults or breaches hereunder by the City at the time existing shall have
been fully remedied to the satisfaction of the Authority. Upon such termination,
the Authority may recover, in addition to all other damages available by contract
or at law, to the extent permitted by law, from the City: (i) the worth at the time of
award of the unpaid rental which had been earned at the time of termination; and
(ii) the worth at the time of award of the amount by which the unpaid rental which
would have been earned after termination until the time of award exceeds the
amount of such rental loss that the City proves could have been reasonably
avoided. The "worth at the time of award" of the amounts referred to in clauses
(i) and (ii) above is computed by allowing interest at the rate of twelve per cent
(12%) per annum.
Without otherwise limiting any of the rights or remedies of the Authority set
forth herein, the Authority expressly waives the right to receive any amount from the
City pursuant to Section 1951.2(a)(3) of the California Civil Code.
Each and all of the remedies given to the Authority hereunder or by any
law now existing or hereafter enacted are cumulative and the exercise of any one
remedy shall not impair the right of the Authority to any or all other remedies.
(c) Neither the City nor the Authority shall be in default in the
performance of any of its obligations hereunder (except for the obligation to pay Base
Rental and Additional Rental pursuant to Section 5.01) unless and until it shall have
failed to perform such obligation within thirty (30) day after notice by the City or the
Authority, as the case may be, to the other party properly specifying wherein it has
failed to perform such obligation.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Notices. All written notices to be given hereunder
shall be given by first class mail to the party entitled thereto at its address set forth
below, or at such other address as such party may provide to the other parties in writing
from time to time, namely:
29
If to the Authority: Palm Desert Financing Authority
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention: Chief Administrative Officer
Facsimile: (760) 346-6372
Telephone: (760) 341-0611
If to the City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attention: City Manager
Facsimile: (760) 346-6372
Telephone: (760) 341-0611
If to the Trustee: Wells Fargo Bank, National Association
707 Wilshire Blvd., 17th Floor
MAC E2818-176
Los Angeles, California 90017
Attention: Robert Schneider, Vice President
Facsimile: (213) 614-3355
Telephone: (213) 614-3353
If to the Credit Entity: Wells Fargo Bank, National Association
707 Wilshire Blvd., 11 th Floor
MAC E2818-114
Los Angeles, California 90017
Attention: Lynn Love, Relationship Manager
Facsimile: (213) 614-3555
Telephone: (213) 614-2235
If to the Collar Provider: Wells Fargo Bank, National Association
550 California Street, 12th Floor
MAC A0112-121
San Francisco, California 94104
Attention: Derivatives Documentation Manager
Facsimile: (415) 986-2604
Telephone: (415) 396-2144
SECTION 11.02. Bindinp Effect. The Lease shall inure to the benefit of
and shall be binding upon the Authority and the City and their respective successors
and assigns.
SECTION 11.03. Third Partv Beneficiaries. The Trustee, the Collar
Provider, and the Credit Entity are hereby designated third party beneficiaries
30
hereunder for the purpose of enforcing any of the rights hereunder assigned to the
Trustee under the Assignment Agreement.
SECTION 11.04. Net-Net-Net Lease. It is the purpose and intent of the
Authority and the City that lease payments hereunder shall be absolutely net to the
Authority so that the Lease shall yield to the Authority the lease payments, free of any
charges, assessments or impositions of any kind charged, assessed or imposed on or
against the Leased Property, and without counterclaim, deduction, defense, deferment
or set-off by the City except as herein specifically otherwise provided. The Authority
shall not be expected or required to pay any such charge, assessment or imposition, or
be under any obligation or liability hereunder except as herein expressly set forth, and
all costs, expenses and obligations of any kind relating to the maintenance and
operation of the Leased Property which may arise or become due during the term of the
Lease shall be paid by the City.
SECTION 11.05. Amendments. The Lease may be amended in writing
as may be mutually agreed by the Authority and the City, subject to the written approval
of the Credit Entity and the Trustee; provided, that no such amendment which
materially adversely affects the rights of the Owners shall be effective unless it shall
have been consented to by the Owners of more than majority in aggregate principal
amount of the Bonds then Outstanding, and provided further, that no such amendment
shall (a) extend the payment date of any Base Rental payment, without the prior written
consent of the Owner of each Bond so affected, or (b) reduce the percentage of the
Bonds the consent of the Owners of which is required for the execution of any
amendment hereof; and provided further, that no such amendment shall modify any of
the rights or obligations of the City, the Authority, or the Collar Provider hereunder in
respect of the Interest Rate Collar Agreement without the prior written consent of the
Collar Provider.
The Lease and the rights and obligations of the Authority and the City
hereunder may also be amended or supplemented at any time by an amendment hereof
or supplement hereto which shall become binding upon execution by the Authority and
the City without the written consents of any Owners, but with the written approval of the
Credit Entity and only to the extent permitted by law and only for any one or more of the
following purposes:
(a) to add to the agreements, conditions, covenants and terms required
by the Authority or the City to be observed or performed herein and other agreements,
conditions, covenants and terms thereafter to be observed or performed by the
Authority or the City, or to surrender any right or power reserved herein to or conferred
herein on the Authority or the City, and which in either case shall not materially
adversely affect the interests of the Owners or the Collar Provider;
(b) to make such provisions for the purpose of curing any ambiguity or
correcting, curing or supplementing any defective provision contained herein or in
regard to questions arising hereunder which the Authority or the City may deem
31
desirable or necessary and not inconsistent herewith, and which shall not materially
adversely affect the interests of the Owners or the Collar Provider;
(c) to effect a Substitution or Removal;
(d) to increase the amount of Base Rental payable hereunder for the
purpose of allowing the Authority to issue Additional Bonds and to add any real property
to be acquired and leased hereunder from the proceeds of such Additional Bonds to
Exhibit A hereof; or
(e) for any other purpose which shall not materially adversely affect the
interests of the Owners or the Collar Provider.
SECTION 11.06. Partial Invaliditv. If any one or more of the
agreements, conditions, covenants or terms hereof shall to any extent be declared
invalid, unenforceable, void or voidable for any reason whatsoever by a court of
competent jurisdiction, the finding or order or decree of which becomes final, none of
the remaining agreements, conditions, covenants or terms hereof shall be affected
thereby, and each provision of this Lease shall be valid and enforceable to the fullest
extent permitted by law.
SECTION 11.07. California Law. This Lease shall be governed by and
construed and interpreted in accordance with the laws of the State of California.
SECTION 11.08. Section Headinps. 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 11.09. Execution; Recordation.
(a) This Lease may be executed in any number of counterparts, each of
which shall be deemed to an original, but all together shall constitute but one and the
same instrument.
(b) This Lease shall not be recorded, but the parties shall, at the
commencement of the term hereof, execute and cause to be recorded in the office of
the County Recorder of the County of Riverside, California, a "short form" or
Memorandum of Lease Agreement.
SECTION 11.10. Consent of Credit Entity Required. Notwithstanding
anything in this Lease to the contrary, no amendment or supplement to this Lease shall
, become effective unless first approved by the Credit Entity. All references herein to
Credit Entity shall be of no force or effect during any period in which no Credit Facility is
in effect or the Credit Entity is in default thereunder and so long as no amounts remain
owing to the Credit Entity.
32
IN WITNESS WHEREOF, the parties hereby have executed and entered
into this Lease by their officers thereunto duly authorized as of the day and year first
written above.
PALM DESERT FINANCING AUTHORITY
By:
John M. Wohlmuth, Chief Administrative Officer
CITY OF PALM DESERT
By:
Robert A. Spiegel, Mayor
Attest:
By:
Rachelle D. Klassen, City Clerk
Palm Desert, California
� S-1
EXHIBIT A
Legal Description of Real Property
PARCEL 1:
ALL THAT PORTION OF TRACT NO. 19074-1, IN THE CITY OP PALM DESERT, AS
SHOWN BY MAP ON FILE IN BOOK 141 PAGES 58 THROUGH 64, INCLUSIVE, OF
MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF LOT "A" OF SAID TRACT NO.
19074-1;
THENCE SOUTH 89° 51' 00" WEST ALONG THE NORTH LINE OF SAID LOT "A", A
DISTANCE OF 406.00 FEET;
THENCE LEAVING SAID NORTH LINE, NORTH 00° 09' 17" EAST ALONG A LINE
PARALLEL WITH THE EAST LINE OF SAID TRACT NO. 19074-1, A DISTANCE OF
201.00 FEET TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING NORTH 00° 09' 17" EAST ALONG SAID PARALLEL LINE A
DISTANCE OF 181.00 FEET;
THENCE SOUTH 89° 50' 43" EAST, A DISTANCE OF 42.00 FEET;
THENCE NORTH 00° 09' 17" EAST, ALONG A LINE PARALLEL WITH SAID EAST
LINE OF SAID TRACT NO. 19074-1, A DISTANCE OF 76.00 FEET;
THENCE NORTH 43° 47' 18" EAST, A DISTANCE OF 147.81 FEET;
THENCE SOUTH 89° 50' 43" EAST, A DISTANCE OF 228.00 FEET TO A POINT IN A
LINE PARALLEL WITH AND DISTANT 34.00 FEET WESTERLY OF MEASURED AT
RIGHT ANGLES TO THE EAST LINE OF SAID TRACT NO. 19074-1;
THENCE SOUTH 00° 09' 17" WEST ALONG SAID PARALLEL LINE A DISTANCE OF
362.00 FEET TO A POINT IS NORTH 00° 09' 17" EAST, A DISTANCE OF 201.00
FEET FROM SAID NORTH LINE OF SAID LOT "A";
THENCE SOUTH 89° 51' 00" WEST ALONG A LINE PARALLEL WITH AND DISTANT
201.00 FEET NORTHERLY OF, MEASURED AT RIGHT ANGLES TO SAID NORTH
LINE OF SAID LOT "A", A DISTANCE OF 372.00 FEET, TO THE TRUE POINT OF
BEGINNING.
PARCEL 2:
ALL THAT PORTION OF TRACT NO. 19074-1 , IN THE CITY OF PALM DESERT, AS
SHOWN BY MAP ON FILE IN BOOK 141 PAGES 58 THROUGH 64, INCLUSIVE, OF
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MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SAID LOT "A" OF SAID TRACT
NO. 19074-1;
THENCE SOUTH 89° 51' 00" WEST ALONG THE NORTH LINE OF SAID LOT "A", A
DISTANCE OF 34.00 FEET TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING SOUTH 89° 51' 00" WEST ALONG SAID NORTH LINE A
DISTANCE OF 372.00 FEET;
THENCE LEAVING SAID NORTH LINE, NORTH 00° 09' 17" EAST, ALONG A LINE
PARALLEL WITH THE EAST LINE OF SAID TRACT NO. 19074-1, A DISTANCE OF
201.00 FEET;
THENCE NORTH 89° 51' 00" EAST, ALONG A LINE PARALLEL WITH THE NORTH
LINE OF SAID LOT "A", A DISTANCE OF 372.00 FEET TO THE INTERSECTION
WITH A LINE PARALLEL WITH AND DISTANT 34.00 FEET WESTERLY OF,
MEASURED AT RIGHT ANGLES TO THE EAST LINE OF SAID TRACT NO. 19074-1;
THENCE SOUTH 00° 09' 17" WEST ALONG SAID PARALLEL LINE A DISTANCE OF
201.00 FEET TO THE TRUE POINT OF BEGINNING.
APN: 622-260-081 and 622-260-083
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EXHIBIT B
Aggregate Annual Base Rental Payment Schedule
Period Ending
(September 1) Princi al Interest'
2010 $130,000
2011 140,000
2012 145,000
2013 155,000
2014 170,000
2015 180,000
2016 190,000
2017 205,000
2018 220,000
2019 235,000
2020 250,000
2021 270,000
2022 285,000
2023 305,000
2024 330,000
2025 350,000
2026 375,000
2027 400,000
2028 430,000
2029* 460,000
* Maturity
�1� The interest component of the Base Rental payments shall equal the sum of (a) the
interest component due with respect to the Bonds as determined under Section 2.02.A
of the Indenture, and (b) if the Interest Rate Collar Agreement is then in effect, the
interest component of Base Rental comprised of Collar Payments due under the
Interest Rate Collar Agreement as determined thereunder. Such interest components
shall be due and payable on the twenty-fifth day of the month immediately preceding
each Bond Payment Date as set forth in Section 5.01(a) hereof; provided,
notwithstanding the foregoing and as set forth in Section 5.01(a) hereof, while the
Interest Rate Collar Agreement is in effect, the Lease Payment Date shall be at least
one (1) Business Day prior to any date on which Scheduled Collar Payments are due
under the Interest Rate Collar Agreement, which is currently the first day of each month
(or if such day is not a Business Day, then on the first Business Day occurring
thereafter), commencing October 1, 2009.
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