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HomeMy WebLinkAbout2009-08-27 FA Regular Meeting Agenda POSTED AGENDA PALM DESERT FINANCING AUTHORITY MEETING THURSDAY, AUGUST 27, 2009 CIVIC CENTER COUNCIL CHAMBER I. CALL TO ORDER II. ROLL CALL III. CONSENT CALENDAR ALL MATTERS LISTED ON THE CONSENT CALENDAR ARE CONSIDERED TO BE ROUTINE AND WILL BE ENACTED BY ONE ROLL CALL VOTE. THERE WILL BE NO SEPARATE DISCUSSION OF THESE ITEMS UNLESS MEMBERS OF THE CITY COUNCIL OR AUDIENCE REQUEST SPECIFIC ITEMS BE REMOVED FROM THE CONSENT CALENDAR FOR SEPARATE DISCUSSION AND ACTION UNDER SECTION XI, CONSENT ITEMS HELD OVER, OF THE AGENDA. A. MINUTES of the Financing Authority Meeting of July 9, 2009. Rec: Approve as presented. IV. CONSENT ITEMS HELD OVER V. RESOLUTIONS VI. NEW BUSINESS A. REQUEST FOR 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 (JOINT CONSIDERATION WITH THE PALM DESERT CITY COUNCIL). Rec: Waive further reading and adopt: 1) Financing Authority Resolution No. FA-65, 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; 2) City Council Resolution No. 09-64, supplementing Resolution No. 09-53 to provide for a Safekeeping Set-aside Fund for the Palm Desert Financing POSTED AGENDA PALM DESERT HOUSING AUTHORITY MEETING AUGUST 27, 2009 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. Action: VII. CONTINUED BUSINESS VIII. OLD BUSINESS IX. PUBLIC HEARINGS X. REPORTS, REMARKS, AND AGENCY BOARD ITEMS REQUIRING ACTION A. EXECUTIVE DIRECTOR B. AUTHORITY COUNSEL C. CHAIRMAN AND MEMBERS OF THE AUTHORITY XI. ADJOURNMENT I hereby certify, under penalty of perjury under the laws of the State of California, that the foregoing agenda for the Palm Desert City Council was posted on the City Hall bulletin board not less than st 72 hours prior to the meeting. Dated this 21 day of August, 2009. ________________________________ Rachelle D. Klassen, City Clerk 2 r �„? � �' i� �• e Er s.y�i� i� 's�. � � �. � �� PRELIMINARY MINUTES PALM DESERT FINANCING AUTHORITY MEETING THURSDAY, JULY 9, 2009 CfVIC CENTER COUNCIL CHAMBER 73510 FRED WARING DRIVE, PALM DESERT, CA 92260 I. CALL TO ORDER - 3:00 P.M. Vice President Finerty convened the meeting at 3:00 p.m. 11. ROLL CALL Present: Excused Absence: Commissioner Jean M. Benson President Robert A. Spiegel Commissioner Jim Ferguson Commissioner Richard S. Kelly Vice President Cindy Finerty Also Present: John M. Wohlmuth, City Manager/RDA Executive Director Stephen P. Deitsch, Assistant City Attorney Sheila R. Gilligan, ACM for Community Services Homer Croy, ACM for Development Services Justin McCarthy, ACM for Redevelopment Stephen Y. Aryan, Assistant to the City Manager Rachelle D. Klassen, City Clerk Bo Chen, City Engineer Russell Grance, Director of Building & Safety Lauri Aylaian, Director of Community Development Frankie Riddle, Director of Special Programs J. Luis Espinoza, Assistant Finance Director Dorian Cooley, Division Chief, Palm Desert Fire/Riverside Co. Fire Dept./Cal Fire Steve Brooker, Fire Marshal, Palm Desert Fire/Riverside Co. Fire Dept./Cal Fire Robert Perdue, Palm Desert Police/Riverside Co. Sheriff's Dept. Grace L. Mendoza, Deputy City Clerk On a motion by Ferguson, second by Benson, and 4-0 vote of the Authority Board, with Spiegel ABSENT, Vice President Finerty adjourned the meeting to Closed Session of the City Council and Redevelopment Agency at 3:02 p.m. She reconvened the meeting at 4:00 p.m. �1 Y�.^,�gy ' x..a . ,. �,{'b� Yr��6'�'n , tiw. - `Lr,r"N°� Y S': , � PRELIMiNARY MINUTES PALM DESERT FINANCING AUTHORITY MEETING JULY 9, 2009 III. CONSENT CALENDAR A. MINUTES of the Financing Authority Meeting of June 25, 2009. Rec: Approve as presented. Upon a motion by Ferguson, second by Kelly, and 4-0 vote of the Authority Board, with Spiegel ABSENT, the Consent Calendar was approved as presented. IV. CONSENT ITEMS HELD OVER None V. RESOLUTIONS None VI. NEW BUSINESS A. REQUEST FORADOPTION OF RESOLUTIONS, ADOPTING AN IDENTITY THEFT PREVENTION PROGRAM FOR THE CITY OF PALM DESERT, PALM DESERT REDEVELOPMENT AGENCY, PALM DESERT HOUSING AUTHORITY, AND PALM DESERT FINANCING AUTHORITY (JOINT CONSIDERATION WITH THE PALM DESERT CITY COUNCIL, PALM DESERT REDEVELOPMENT AGENCY, AND PALM DESERT HOUSING AUTHORITY). Mr. Espinoza explained the City had a set of guidelines it had to set up to protect the borrower and prevent people from getting social security numbers, addresses, and so forth; specifically borrowers in the Energy Independence Program (EIP) and Home Improvement Program (HIP). Staff will go through the Audit, Investment and Finance Committee to set up the guidelines and distribute them to the appropriate staff. He confirmed the recommendation was supported by the Finance Gommittee. Councilman/Member/Commissioner Kelly moved to waive further reading and adopt the following Resolutions, relative to an Identity Theft Prevention Program for each entity, respectively: 1) City Council Resolution No. 09-58; 2) Redevelopment Agency Resolution No. 561; 3) Housing Authority Resolution No. HA-41; 4) Financing Authority Resolution No. FA-64. Motion was seconded by Benson and carried by a 4-0 vote, with Spiegel ABSENT. VII. CONTINUED BUSINESS None � PRELIMINARY MINUTES PALM DESERT FINANCING AUTHORITY MEETING � � :� b:� ���' ��;� .,. '��� �. JULY 9, 2009 VIII. OLD BUSINESS None IX. PUBLIC HEARINGS None X. REPORTS, REMARKS, AND AGENGY BOARD ITEMS REQUIRING ACTION A. CHIEF ADMINISTRATiVE OFFICER None B. AUTHORITY COUNSEL None C. PRESIDENT AND MEMBERS OF THE AUTHORITY None XI. ORAL COMMUNICATIONS - C None XII. ADJOURNMENT Upon a motion by Ferguson, second by Kelly, and 4-0 vote of the Authority Board, with Spiegel ABSENT, Vice President Finerty adjourned the meeting to Closed Session of the City Council and Redevelopment Agency at 5:25 p.m. She reconvened the meeting at 5:41 p.m. On a motion by Benson, second by Kelly, and 3-0 vote of the Authority Board, with Ferguson and Spiegel ABSENT, Vice President Finerty adjourned the meeting at 5:44 p.m. ROBERTA. SPIEGEL, PRESIDENT ATTEST: RACHELLE D. KLASSEN, SECRETARY PALM DESERT FINANCING AUTHORITY 3 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. G:\Finance\Niamh Ortega\Staff Reports\SR - EIP 2009 LRBs 082709.docx EIP Loan Funding Staff Report August 27, 2009 Page2of3 Background: 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 G:\Finance\Niamh Ortega\Staff Reports\SR - EIP 2009 LRBs 082709.docx EIP Loan Funding Staff Report August 27, 2009 Page 3 of 3 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: dA/)((/2. Paul S. Gibson City Treasurer / Director of Finance M. Wohlmuth Manager 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 Documents (as defined in Resolution No. FA-63) (collectively, the "Other Bond Documents"), and an Official Statement (the "Official Statement"); 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 W:Wgenda Items\2009-08-27\EIP Variable Rate demand LRB safekeeping\RES - Financing Authority (Palm Desert EIP 2009 LRBs).docx 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 Documents 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 Documents 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: ABSTAIN: 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 W:\Agenda Items\2009-08-27\EIP Variable Rate demand LRB safekeeping\RES - City Palm Desert EIP 2009 LRBs 082709.docx Resolution No. 09-64 Page2of3 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 thereof). 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 Documents 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 W:\Agenda Items\2009-08-27\EIP Variable Rate demand LRB safekeeping\RES - City Palm Desert EIP 2009 LRBs 082709.docx 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 Documents, 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 W:Wgenda Items\2009-08-27\EIP Variable Rate demand LRB safekeeping\RES - City Palm Desert EIP 2009 LRBs 082709.docx 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 ARTICLE I 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 SECTION 2.05. 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 Property. 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 SECTION 6.04. Advances. 22 -i- TABLE OF CONTENTS (continued) Page ARTICLE VII DAMAGE, DESTRUCTION, TITLE DEFECT AND CONDEMNATION 22 SECTION 7.01. Damage, Destruction, Title 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 ARTICLE X DEFAULT 25 SECTION 10.01. Default; Assignment of Rents 25 ARTICLE XI MISCELLANEOUS 29 SECTION 11.01. 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). Authority "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). City "City" means the City of Palm Desert, a municipal corporation duly organized and existing under the Constitution and laws of the State. Collar Payments "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 Collar 2 Agreement" definition herein is effective, or (ii) the counterparty to any other Interest Collar Agreement then in effect. Credit Entity "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 Payment 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 Palm Desert Villa Portfolio I, LLC. 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. 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 Agreement "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 Payment 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 Property "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 Collar Payments "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 Property "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 Agreement "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 Property. 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 Property 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 will not abandon or vacate the Leased Property. SECTION 2.02. Quiet Enjoyment. 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. Right 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 obligations hereunder and for all other lawful purposes. SECTION 2.04. Prohibition Aaainst 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 Property 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 Property. (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 Property. 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 Property, 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 Property. During the term of this Lease, title to the Leased Property shall remain in the City. SECTION 2.09. Acquisition of Additional Property. 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 Property. The City currently has possession of the Leased Property. SECTION 4.03. Continuing 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 Payments. 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) 11 (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; provided, 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 12 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 13 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, actually 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 14 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) Safekeeping 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; Reporting Requirements. (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 15 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 16 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 Payments. 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. Prepayment of Rental Payments. (a) Prepayment 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 Prepayment. 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. Obligation to Make Rental Payments. 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. 18 ARTICLE VI MAINTENANCE; TAXES; INSURANCE AND OTHER CHARGES SECTION 6.01. Maintenance of the Leased Property by the City. 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 Charges and Utility Charges. 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 property 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 property 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 Property 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 additional 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 20 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 policy 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. Damage, 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 Property. 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 Property. (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. Assignment by Authority. 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. Assignment by City 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; Assignment 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 Property 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 shall 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., 11th 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. Binding 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 Party 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 Invalidity. 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 Headings. All section headings contained herein are for convenience of reference only and are not intended to define or limit the scope of any provision hereof. SECTION 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 A-1 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 A-2 EXHIBIT B Aggregate Annual Base Rental Payment Schedule Period Ending (September 1) Principal 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. B-1 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 Page ARTICLE I 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 ARTICLE II 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 SECTION 5.07. 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 Default. 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 ARTICLE VIII 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 Bond Owners. 62 SECTION 9.03. Disqualified Bonds. 63 SECTION 9.04. Effect of Supplemental Agreement. 63 SECTION 9.05. Endorsement or Replacement of Bonds Delivered After Amendments. 63 SECTION 9.06. Amendatory Endorsement of Bonds. 64 SECTION 9.07. Consent of Credit Entity Required 64 ARTICLE X DEFEASANCE 64 SECTION 10.01. Discharge of Indenture 64 SECTION 10.02. Payment of Bonds After Discharge of Indenture. 65 ARTICLE XI 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 SECTION 11.08. 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 3 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 limited 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. 2 "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 3 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 4 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 5 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. 6 "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 Facility 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. 7 "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; Mergent/FIS, 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 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. "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 Property 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 10 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 general 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 longer 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 12 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. 13 "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 14 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)." 15 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 until 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 16 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) Weekly 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 Weekly 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. 17 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, 18 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) Change in Interest Rate Determination Method to Annual Rate or Fixed Rate. (1) Notice and Opinion of Bond Counsel. 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. 19 (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 Change 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 will 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. (f) 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 Depository. (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 long 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. (f) 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. Exchange 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 Register. 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 24 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 promptly 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, Destroyed 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 shall be liable for any inaccuracies in such numbers. SECTION 2.11. Certain Contracts and Hedging Agreements. 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. Application 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. Energy 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) shall 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 28 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 Safekeeping 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) During the Weekly 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) During 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 principal 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 2023 305,000 2014 170,000 2024 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. Surplus. 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. Mandatory 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 During Weekly 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 35 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 fully 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 following 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; 36 (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. Remarketing of Bonds by Remarketing Agent. 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. 38 SECTION 4.18. Alternate Credit Facility. (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 Facility 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 last 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 City. 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 Agent 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 Security. (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 Collar 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 Moneys. (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 following 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 Facility. (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 Deficiency 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 less 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 Qualified 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 balance 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 shall be transferred to the Lease Payment Account. SECTION 5.07. Surplus. (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 Moneys 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 Payment. 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. 46 SECTION 6.02. Extension of Payment 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 full 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. Against 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 Pledge and Assignment. 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 valid 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. 47 SECTION 6.06. Accounting 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. SECTION 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 law 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 Proceedings. 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' Right 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 Obligation of Authority. 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 Proceeding. 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. Rights of Credit Entity. 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, perform 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 more 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 property 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. Mercier 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. Liability 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 suppliers or subcontractors due to such causes or any similar event and/or occurrences beyond the control of the Trustee. SECTION 8.04. Right of Trustee to Rely 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. 57 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. Remarketing 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. 58 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 Remarketing Agent. 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. 59 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 meeting 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. 60 (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 61 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. SECTION 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 supplemental 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 62 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 Agreement. 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 all 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. 63 SECTION 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 Entity 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. Discharge 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 64 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 Discharge 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. 65 ARTICLE XI MISCELLANEOUS SECTION 11.01. Continuing 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 Authority 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 Rights 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. 66 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. Severability 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 67 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., 11th 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_structured@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 68 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 Rights 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. Money 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 Liability. 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. Governing 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) 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 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 A-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 A-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. 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 A-3 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 A-4 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 (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 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 shall 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 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 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 A-7 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. A-8 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 A-9 ASSIGNMENT FOR VALUE RECEIVED, the undersigned hereby sell(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. A-10 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: A-11 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 Payment 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 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. 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 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 B-8 ASSIGNMENT FOR VALUE RECEIVED, the undersigned hereby sell(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 Payment 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 C-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, 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 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. 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 shall 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 C-5 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 sell(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