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HomeMy WebLinkAboutRes 492 & FA-50 - Refunding Revenue Bonds (Project Area No. 1 as Amended), 2004 Series APALM DESERT REDEVELOPMENT AGENCYiPALM DESERT FINANCING AUTHORITY REQUEST: SUBMITTED BY: DATE: CONTENTS: Recommendation: STAFF REPORT APPROVAL OF A RESOLUTION OF THE PALM DESERT REDEVELOPMENT AGENCY APPROVING AS TO FORM AND AUTHORIZING THE EXECUTION AND DELIVERY OF CERTAIN DOCUMENTS IN CONNECTION WITH THE SALE AND ISSUANCE OF TAX ALLOCATION REFUNDING REVENUE BONDS (PROJECT AREA NO. 1,AS AMENDED), 2004 SERIES A, OF THE PALM DESERT FINANCING AUTHORITY AND AUTHORIZING CERTAIN OTHER MATTERS RELATING THERETO APPROVAL OF A RESOLUTION OF THE PALM DESERT FINANCING AUTHORITY APPROVING AS TO FORM AND AUTHORIZING THE EXECUTION AND DELIVERY OF CERTAIN DOCUMENTS IN CONNECTION WITH THE ISSUANCE, SALE AND DELIVERY OF THE AUTHORITY'S TAX ALLOCATION REFUNDING REVENUE BONDS (PROJECT AREA NO. 1, AS AMENDED), 2004 SERIES A, APPOINTING A TRUSTEE, AND ESCROW AGENT; AND AUTHORIZING CERTAIN OTHER MATTERS RELATING THERETO DENNIS M. COLEMAN, REDEVELOPMENT FINANCE MANAGER MAY 27, 2004 PALM DESERT REDEVELOPMENT AGENCY RESOLUTION NO. 492 PALM DESERT FINANCING AUTHORITY RESOLUTION FA- 50 LOAN AGREEMENT CONTINUING DISCLOSURE AGREEMENT BOND PURCHASE AGREEMENT ESCROW DEPOSIT AND TRUST AGREEMENT INDENTURE OFFICIAL STATEMENT (PRELIMINARY) By Minute Motion: 1. Thatthe Paim Desert RedevelopmentAgency approves Resolution No. 492, approving as to form and authorizing the execution and delivery of certain documents in connection with the sale and issuance of Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended), 2004 Series A, of the Palm Desert Financing Authority and authorizing certain other matters relating thereto. G:IRDAIDennis CoJemanlDATA\WPIREPORTSl052704.pdra.pfda.bondissue.pal.wpd Staff Report Palm Desert Redevelopment Agency/ Paim Desert Financing Authority Page 2 May 27, 2004 2. That the Palm Desert Financing Authority approve Resolution FA-50 , approving as to form and authorizing the execution and delivery of certain documents in connection with the issuance, sale and delivery of the Authority's Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended), 2004 Series A, appointing a trustee, and escrow agent; and authorizing certain other matters relating thereto. Executive Summarv: The attached resolutions of the Redevelopment Agency and the Financing Authoritywill allow staff to take the necessary steps to issue tax exempt refunding bonds in Project Area No. 1, As Amended. Backaround: There is an opportunity that currently exists to refund the Project Area No. 1, As Amended, 1995, $24.025 million bond issue. The current interest rate environment gives us the ability to refinance the 1995 bond issue and generate approximately $665,000 in new money, while achieving some slight debt service savings. Staff is utilizing the following financing team: Citigroup Global Markets Inc. - Underwriters, Los Angeles, CA Richards, Watson & Gershon -Bond Counsel, Los Angeles, CA Jones Hall, A Professional Law Corporation, San Francisco, CA Kenneth L. Dieker, D.B.A. MuniSoft - Financial Advisor, Modesto, CA MuniFinancial, Inc. - Dissemination Agent, Temecula, CA SUMMARY OF DOCUMENTS TO BE APPROVED: Indenture of Trust The Indenture is an agreement to be signed by the Authority and the Trustee after the Bonds have been priced and sold to the Underwriter, but prior to the Closing. The Indenture sets forth all of the terms and conditions of the Bond issue (e.g., principal amounts, maturity and redemption schedules, payment, registration and transfer provisions and the form of the Bonds), the covenants and other obligations of the Authority to the bondholders, and the role and the duties of the Trustee. As presented to the Authority Commission, the Indenture is in substantially final form, except for final dollar amounts (to be added after the Bonds have been priced and sold) and except for the addition of provisions relating to bond insurance (depending on which bond insurance company is to be involved). Loan Aareement This is an agreement between the Authority, the Trustee and the Agency. Pursuant to the G:\RDA\Dennis Coleman\DATA\WPIREPORTS1052704.pdra.pfda.bondissue.pal.wpd Staff Report Palm Desert Redevelopment Agency/ Palm Desert Financing Authority Page 3 May 27, 2004 Loan Agreement, the Authority agrees to lend the Agency funds which would be used by the Agency to refund the 1995 bonds, and fund capital projects for benefit to Project Area No. 1, As Amended. The Agency agrees to pay the entire debt service cost of the new bonds to the Authority, in order for the Authority to make the debt service payments. Bond Purchase Aareement This is an agreement between the Authority, the Agency and the Underwriters for the purchase and sale of the Bonds. Pursuant to the Purchase Contract, the underwriters agree to purchase the Authority Bonds at specified prices and interest rates, subject to the receipt of certain opinions, certificates and other conditions. The Purchase Contractwill be presented to the appropriate officers of the Authority and Agency for approval and execution as soon as the underwriter has completed the process of offering and then pricing the issue in the market. Official Statement As presented to the Authority Commission, an Official Statement for Project Area No.1, As Amended, has been prepared in preliminary form by the Underwriter's Counsel, and is substantially complete, except for pricing information and the addition of language describing bond insurance, and a rating of the issue. The preliminary Official Statement is designed to provide all material information to investors with respect to the terms and the security of the Bond issue. It includes a full description of the legal and financial aspects, as well as the various legal documents in regard to the Bond issue. The preliminary Official Statement also includes information regarding the Authority, the Agency, and the redevelopment project area. The preliminary Official Statement will be utilized by the Underwriters in their efforts to market the Bonds to the public. When the Bonds have been priced and the Purchase Agreement has been signed, the Official Statement will be completed in final form and will be distributed by the Underwriters to the individuals and institutions that purchased the Bonds. Continuina Disclosure The Continuing Disclosure Agreement is between the Agency, the Trustee and the Dissemination Agent. This agreement directs the Agency to provide an Annual Report to the Dissemination Agent. The Annual Report contains the Agency's audited financial statements and other pertinent financial information on the Agency. The Annual Report is sent to state and national repositories so that this information is available to the bondholders. This mechanism is used to keep bondholders informed, on an annual basis, on the financial status of the Agency. Escrow Deposit and Trust Aareement The Escrow Deposit and Trust Agreement is an agreement between the Agency, the Authority and the Trustee. This agreement covers provisions for the selection of the bonds from the 1995 issue to be refunded. The agreement also covers provisions for the funds to be deposited from the new issue to cover the refunding, and the verification from G:IRDA1Dennis CoJomanIDATAIWPIREPORTS1052704.pdra.pfda.bondissue.pa1.wpd Staff Report Palm Desert Redevelopment Agency/ Palm Desert Financing Authority Page 4 May 27, 2004 a Certified Public Accountant that the funds placed in escrow are sufficient to cover the refunding. The agreement also governs the investment and reinvestment of the funds in escrow. The abovementioned documents are in preliminary stages, and the resolutions allow for staff to make the necessary changes in order to finalize and execute the documents. Staff is recommending that the Redevelopment Agency and the Financing Authority approve their respective resolutions authorizing the sale and issuance of the said bond, and approving certain documents. Submitted By: c� Dennis M. Coleman Redevelopment Finance Manager DMC:mh Approval: J i McCarthy Redevelopment Carlos L. Ortega, F'cutive Director/ Chief Administrative Officer G:1RDAIDe, nis ColemanlDATA1WPIREPORTS1052704. pdra. pfda.bondissue. pa 1. wpd Department Head: David Yri Director ,•f'' edevelopment Paul S. Gibson Director of Finance/Treasurer RESOLUTION NO. 492 A RESOLUTION OF THE PALM DESERT REDEVELOPMENT AGENCY APPROVING AS TO FORM AND AUTHORIZING THE EXECUTION AND DELIVERY OF CERTAIN DOCUMENTS IN CONNECTION WITH THE SALE AND ISSUANCE OF TAX ALLOCATION REFUNDING REVENUE BONDS (PROJECT AREA NO. 1, AS AMENDED), 2004 SERIES A, OF THE PALM DESERT FINANCING AUTHORITY AND AUTHORIZING CERTAIN OTHER MATTERS RELATING THERETO RECITALS: WHEREAS, the Palm Desert Financing Authority (the "Authority") has determined to sell and issue its Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended), 2004 Series A (the "Bonds"); and WHEREAS, proceeds of the Bonds are to be applied for the purpose of making a loan to the Palm Desert Redevelopment Agency (the "Agency"), pursuant to a certain Loan Agreement (as hereinafter defined), for the object and purpose of assisting in the financing of certain public capital improvements, as described therein; NOW, THEREFORE, THE PALM DESERT REDEVELOPMENT AGENCY DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS: Section 1. Recitals. The above recitals, and each of them, are true and correct. Section 2. Loan Aareement. The Project Area No. 1, As Amended Loan Agreement (the "Loan Agreement"), proposed to be entered into by and among the Authority, the Agency and BNY Western Trust Company as trustee (the "Trustee"), in the form presented at this meeting and on file with the Secretary of the Agency (the "Secretary") is hereby approved. Each of the Chairman and the Executive Director, or either of them, or their designee (each, an "Authorized Officer"), is hereby authorized and directed, for and in the name and on behalf of the Agency, to execute and deliver the Loan 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. Escrow Agreement. The Escrow Deposit and Trust Agreement (Project Area No. 1, As Amended), proposed to be entered into by and among the Agency, the Authority and the Escrow Agent, in the form presented to this meeting and on file in the office of the Secretary, is hereby approved. Each of the Authorized Officers, acting singly, is hereby authorized and directed, for and in the name and on behalf of the Authority, to execute and deliver the Escrow 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 officer's execution and delivery thereof. Section 4. Continuing Disclosure Aareement. The Continuing Disclosure Agreement (the "Continuing Disclosure Agreement"), proposed to be entered into by and among the Agency, the Authority and BNY Western Trust company as Escrow Agent, in the form P6402-1051\729215v3.doc 1 Resolution No. 492 presented at this meeting and on file in the office of the Secretary, is hereby approved. Each of the Authorized Officers, acting singly, is hereby authorized and directed, for and in the name and on behalf of the Agency, to execute and deliver the Escrow 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 officer's execution and delivery thereof). Section 5. Purchase Contract. The Purchase Contract (the "Purchase Contract") proposed to be entered into by the Authority, the Agency and Citigroup Global Markets, Inc. (the "Underwriter"), in the form presented at this meeting and on file with the Secretary, and the sale of the Bonds pursuant thereto upon the terms and conditions set forth therein, are hereby approved. Subject to the limitations imposed by the Authority by its Resolution relating to the issuance and sale of the Bonds, each of the Authorized Officers, acting singly, is authorized and directed, for and in the name and on behalf of the Agency, to execute and deliver the Purchase Contract in substantially said form, with such changes therein as the Authorized Officer executing the same may require or approve (such approval to be conclusively evidenced by his execution and delivery thereof). Section 6. Other Acts. The Authorized Officers and all other officers of the Agency are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents which they may deem necessary or advisable in order to effectuate the purposes of this Resolution, the Loan Agreement, the Escrow Agreement, the Continuing Disclosure Agreement and the Purchase Contract, 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. APPROVED and ADOPTED this vote to wit: AYES: NOES: ABSENT: ABSTAIN: ATTEST: Rachelle D. Klassen, Secretary day of , 2004 by the following Robert A. Spiegel, Chairman P6402-1051\729215v3.doc RESOLUTION NO. FA- 50 A RESOLUTION OF THE PALM DESERT FINANCING AUTHORITY APPROVING AS TO FORM AND AUTHORIZING THE EXECUTION AND DELIVERY OF CERTAIN DOCUMENTS IN CONNECTION WITH THE ISSUANCE, SALE AND DELIVERY OF THE AUTHORITY'S TAX ALLOCATION REFUNDING REVENUE BONDS (PROJECT AREA NO. 1, AS AMENDED), 2004 SERIES A; APPOINTING A TRUSTEE AND ESCROW AGENT; AND AUTHORIZING CERTAIN OTHER MATTERS RELATING THERETO RECITALS: WHEREAS, the Palm Desert Financing Authority (the "Authority") is a joint powers authority duly organized and existing under and pursuant to Articles 1 through 4 (commencing with Section 6500), Chapter 5, Division 7, Title 1 of the California Government Code (the "Act") and that certain Joint Exercise of Powers Agreement dated as of January 26, 1989, by and between the City of Palm Desert (the "City") and the Palm Desert Redevelopment Agency (the "Agency"), and is authorized pursuant to Article 4 of the Act to issue bonds for the purpose of making loans to the Agency to provide financing for public capital improvements; and WHEREAS, the Authority desires to issue and sell its "Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended), 2004 Series A" (the "Bonds") to be issued and secured pursuant to an Indenture (as defined herein); and WHEREAS, proceeds of the Bonds are to be applied for the purpose of making a loan to the Agency pursuant to a certain Loan Agreement (as defined herein), for the object and purpose of assisting in the refinancing and financing of certain public capital improvements, as described therein; 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. Indenture. The Indenture of Trust (the "Indenture"), proposed to be entered into by and between the Authority and the Trustee (defined in Section 3 below), in the form presented at this meeting and on file in the office of the City Clerk of the City (the "City Clerk"), is hereby approved. Subject to Section 9 below, each of the President, the Chief Administrative Officer, the Treasurer and the Secretary of the Authority, any deputy of such officers, and any member of the Authority Commission (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 forrrl, with such additions or changes as the Authorized Officer executing the same may approve (such approval to be conclusively evidenced by such Officer's execution and delivery thereof). P6402-1051\729226v3.doc 1 Resolution No. FA-50 Section 3. Appointment of Trustee and Escrow Aaent. The appointment of BNY Western Trust Company as trustee (the "Trustee") under the Indenture and as escrow agent (the "Escrow Agent") under the Escrow Agreement described in Section 5 hereof is hereby approved. Section 4. Loan Aareement. The Project Area No. 1, As Amended Loan Agreement (the "Loan Agreement"), proposed to be entered into by and among the Agency, the Authority and the Trustee, in the form presented at this meeting and on file in the office of the Secretary of the Authority (the "Secretary"), is hereby approved. Each of the Authorized Officers, acting singly, is hereby authorized and directed, for and in the name and on behalf of the Authority, to execute and deliver the Loan 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 Officer's execution and delivery thereof). Section 5. Escrow Aareement. The Escrow Deposit and Trust Agreement (Project Area No. 1, As Amended), proposed to be entered into by and among the Agency, the Authority and the Escrow Agent, in the form presented to this meeting and on file in the offce of the Secretary, is hereby approved. Each of the Authorized Officers, acting singly, is hereby authorized and directed, for and in the name and on behalf of the Authority, to execute and deliver the Escrow 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 officer's execution and delivery thereof. Section 6. Preliminary Official Statement. The Preliminary Official Statement relating to the Bonds (the "Preliminary Official Statement"), in the form presented at this meeting and on file with the City Clerk, is hereby approved. Each of the Authorized Officers, acting singly, is hereby authorized and directed, for and in the name and on behalf of the Authority, to cause the Preliminary Official Statement in substantially said form, with such changes therein as such Authorized Officer may approve, to be deemed final for the purposes of Rule 15c2-12 of the Securities and Exchange Act of 1934. The distribution by Citigroup Global Markets, Inc. (the "Underwriter") of copies of the Preliminary Official Statement to potential purchasers of the Bonds is hereby approved. Section 7. Official Statement. Each of the Authorized Officers, acting singly, is hereby authorized and directed, for and in the name and on behalf of the Authority, to cause the Preliminary Official Statement to be brought into the form of a final Official Statement (the "Official Statement"), and to execute the same for and in the name and on behalf of the Authority, with such changes therein as such Authorized Officer may approve (such approval to be conclusively evidenced by such Authorized Officer's execution and delivery thereof). The distribution and use of the Official Statement by the Underwriter in connection with the sale of the Bonds are hereby approved. Section 8. Purchase Contract. The form of the Purchase Contract as presented to this meeting by the Underwriter and the sale of the Bonds pursuant thereto upon the terms and conditions set forth therein are hereby approved. Subject to Section 9 below, each of the Authorized Officers, acting singly, is authorized and directed, for and in the name and on behalf of the Authority, to execute and deliver the Purchase Contract in substantially said form, with such changes therein as the officer executing the same may require or approve, including such P6402-1051\729226v3.doc 2 Resolution No. FA- 50 matters as are authorized by Section 9 hereof (such approval to be conclusively evidenced by such Authorized Officer's execution and delivery thereof). Section 9. Terms of Sale of Bonds. Each of the Authorized Officers, acting singly, is hereby authorized and directed to act on behalf of the Authority to establish and determine (i) the aggregate principal amount of the Bonds, which amount shall not exceed $28,000,000.00; (ii) the purchase price of the Bonds and the interest rates thereon, provided that no interest rate shall exceed 6% percent per annum; (iii) the Underwriter's compensation (discount) with respect to the Bonds, which shall not exceed 0.75 percent of the principal amount thereof; and (iv) such provisions as may be required by the terms of a bond insurance policy, if any, purchased with respect to the Bonds or any portion thereof. The authorization and powers delegated to such officer by this Section 9 shall be.valid for a period of 120 days from the date of adoption of this Resolution. Section 10. Reauisitions. Each of the Authorized Officers, acting singly, is hereby authorized and directed to execute one or more requisitions authorizing the Trustee to pay the costs of issuing the Bonds from the proceeds of the Bonds pursuant to the Indenture. Section 11. 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 which they may deem necessary or advisable in order to consummate the issuance, sale and delivery of the Bonds, or otherwise to effectuate the purposes of this Resolution, the Indenture, the Loan Agreement, the Escrow Agreement, the Purchase Contract and the Official Statement, and any such actions previously taken by such officers are hereby ratified and confirmed. upon adoption. Section 12. Effective Date. This Resolution shall take effect immediately APPROVED AND ADOPTED this day of , 2004 by the following vote to wit: AYES: NOES: ABSENT: ABSTAIN: ATTEST: Rachelle D. Klassen, Secretary Robert A. Spiegel, President P 6402-1051 \729226v3 . doc 3 Proiect Area No. 1. As Amended. Loan Agreement with reference to $ Palm Desert Financing Authority Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended) 2004 Series A P6402-0001\770206v1.doc 6402-0001\770206v1.doc Proiect Area No. 1. As Amended, Loan Agreement This Loan Agreement is made and entered into as of June 1, 2004, by and among the Palm Desert Redevelopment Agency, a public body, corporate and politic, duly organized and validly existing under the laws of the State of California (the "Agency"), the Palm Desert Financing Authority, 'a joint powers authority duly organized and validly existing under the laws of the State of California (the "Authority"), and BNY Western Trust Company, a state banking corporation duly organized and validly existing under the laws of the State of California (the "Trustee"). Recitals: A. The Palm Desert Redevelopment Agency is a redevelopment agency, a public body, corporate and politic, duly created, established and authorized to transact business and exercise its powers, all under and pursuant to the Redevelopment Law, and the powers of the Agency include the power to borrow money for any of its corporate purposes. B. A Redevelopment Plan for the Project Area has been duly approved and adopted by the City by Ordinance No. 80. C. The Amendment to the Redevelopment Plan, adding territory to the Project Area, was approved and adopted by the City by Ordinance No. 275, and all requirements of law for and precedent to the adoption and approval of the Redevelopment Plan, as amended, have been duly complied with. D. The Agency, the Authority and the Trustee=s predecessor have heretofore entered into a Loan Agreement dated as of June 1, 1995 (the "1995 Loan Agreement"). E. The Authority has heretofore issued (i) $24,025,000 principal amount of Palm Desert Financing Authority Tax Allocation Revenue Bonds (Project Area No. 1, As Amended), Series 1995, of which $22,450,000 remain outstanding (the "1995 Bonds") for the purpose of funding a loan to the Agency pursuant to the 1995 Loan Agreement. F. The Agency has determined to borrow an amount hereunder for the object and purpose of assisting in the prepayment of the balance of the loan under the 1995 Loan Agreement and the refunding of the 1995 Bonds, and the financing of additional public capital improvements of benefit to the Project Area, as provided herein, pursuant to the Redevelopment Law and the Marks -Roos Local Bond Pooling Act of 1985, Article 4, Chapter 5, Division 7, Title 1 of the Government Code of the State of 116402-00011770206v1.doc California (the 'Bond Law"), and the Agency and the Authority hereby find and determine that there will be significant public benefits accruing from such borrowing, consisting of demonstrable savings in effective interest rates and financing costs associated with the issuance of the Bonds pursuant to the Bond Law. G. Concurrently with the execution and delivery of this Loan Agreement, the Authority has issued $ principal amount of its Palm Desert Financing Authority Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended), 2004 Series A (the 'Bonds") pursuant to the Bond Law for the purpose of providing funds to make the Loan to the Agency. H. The Authority and the Agency have determined that all acts and proceedings required by law necessary to make this Loan Agreement, when executed by the Agency, the Trustee and the Authority, the valid, binding and legal obligation of the Agency, the Trustee and the Authority, and to constitute this Loan Agreement a valid and binding agreement for the uses and purposes herein set forth in accordance with its terms, have been done and taken, and the execution and delivery of this Loan Agreement have been in all respects duly authorized. NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, the parties hereto do hereby agree as follows: ARTICLE I DEFINITIONS Section 1.01. Definitions. Unless the context clearly requires or unless otherwise defined herein, the capitalized terms in this Loan Agreement shall have the respective meanings which such terms are given in the Indenture. In addition, the following terms defined in this Section 1.01 shall, for all purposes of this Loan Agreement, have the respective meanings herein specified. "Bonds" means the Palm Desert Financing Authority Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended), 2004 Series A. "Costs of Issuance" means all expenses incurred in connection with the authorization, issuance, sale and delivery of the Bonds and the making of the Loan pursuant to the Loan Agreement, including but not limited to all compensation, fees and expenses of the Authority and the Trustee, compensation to any financial advisors or underwriters and their counsel, legal fees and expenses, filing and recording costs, rating agency fees, credit enhancement fees (including insurance, surety bonds and letters of credit), costs of preparation and reproduction of documents and costs of printing. 6402-0001\770206v1.doc "Costs of Issuance Fund" means the fund by that name established and held by the Trustee pursuant to Section 2.06. "Escrow Agreement" means that certain Escrow Deposit and Trust Agreement dated as of June 1, 2004 by and among the Agency, the Escrow Agent and the Authority. "Escrow Agent" means BNY Western Trust Company, acting as escrow agent under the Escrow Agreement, or any successor thereto appointed under the Escrow Agreement. Agreement. "Escrow Fund" has the meaning assigned to that term in the Escrow "Event of Default" means any of the events described in Section 5.01. "Financial Guarantv Agreement" means the Financial Guaranty Agreement by and between the Agency and the Insurer providing for the issuance of the Surety Bond. "Independent Redevelopment Consultant" means any consultant or firm of such consultants appointed by or acceptable to the Agency, and who, or each of whom: (i) is judged by the Agency to have experience in matters relating to the collection of Tax Revenues or otherwise with respect to the financing of redevelopment projects; (ii) is in fact independent and not under the domination of the Agency; (iii) does not have any substantial interest, direct or indirect, with the Agency, other than as original purchaser of any obligations of the Agency; and (iv) is not connected with the Agency as an officer or employee of the Agency, but who may be regularly retained to make reports to the Agency. "Indenture" means the Indenture of Trust dated as of June 1, 2004, by and between the Authority and the Trustee, authorizing the issuance of the Bonds, as originally executed or as it may from time to time be supplemented, modified or amended. "Loan" means the loan made by the Authority to the Agency pursuant to Section 2.01 plus the total amount of the underwriting discount on the purchase price of the Bonds. "Loan Agreement" means this Project Area No. 1, As Amended, Loan Agreement, as originally executed or as it may from time to time be amended, modified or supplemented. 6402-0001\770206v1.doc "Maximum Annual Debt Service", as certified by the Agency to the Trustee, means, as of the date of calculation, the largest amount obtained by totaling, for the current or any future Bond Year, the sum of (i) the amount of interest payable on the Loan and all outstanding Parity Debt in such Bond Year, assuming that principal thereof is paid as scheduled and that any mandatory sinking fund payments are made as scheduled, and (ii) the amount of principal payable on the Loan and on all outstanding Parity Debt in such Bond Year, including any principal required to be prepaid by operation of mandatory sinking fund payments. For purposes of such calculation, there shall be excluded a pro rata portion of each installment of principal of any Parity Debt, together with the interest to accrue thereon, in the event and to the extent that the proceeds of such Parity Debt are deposited in an escrow fund from which amounts may not be released to the Agency unless the Tax Revenues for the current Fiscal Year (as evidenced in the written records of the County), plus at the option of the Agency the Additional Revenues, at least equals 115 percent of the amount of Maximum Annual Debt Service. "1995 Bonds" means the outstanding Palm Desert Financing Authority Tax Allocation Revenue Bonds (Project Area No. 1, As Amended), Series 1995. "1995 Loan" means the loan by the Authority to the Agency pursuant to the 1995 Loan Agreement. . "1995 Loan Agreement" means the Project Area No. 1, As Amended, Loan Agreement dated as of June 1, 1995, by and among the Agency, the Authority and Bank of America National Trust and Savings Association as trustee. "1997 Loan" means the loan made by the Authority to the Agency pursuant to the 1997 Loan Agreement. "1997 Loan Agreement" means the Project Area No. 1, As Amended, Loan Agreement dated as of July 1, 1997, by and among the Agency, the Authority and First Trust of California, National Association as trustee. "Parity Debt" means the 1997 Loan, the 2002 Loan, the 2003 Loan and any loans, bonds, notes, advances, or indebtedness payable from Tax Revenues on a parity with the Loan to finance the Redevelopment Project, issued or incurred pursuant to and in accordance with the provisions of Section 2.09. "Parity Debt Instrument" means the the 1997 Loan Agreement, the 2002 Loan Agreement, the 2003 Loan Agreement and any resolution, indenture of trust, trust agreement or other instrument authorizing the issuance of any Parity Debt. 6402-0001\770206v1.doc "Pass -Through A �reements" means, collectively, the agreements entered into or approved by the Agency on or prior to the date hereof pursuant to Section 33401 of the Redevelopment Law with (i) the County of Riverside, (ii) the Coachella Valley Mosquito Abatement District, (iii) the Coachella Valley Recreation and Park District, (iv) the Coachella Valley Water District, (v) the Desert Community College District, (vi) the Desert Sands Unified School District and (vii) the Riverside County Superintendent of Schools. "Plan Limitations" means the limitations contained or incorporated in the Redevelopment Plan on (i) the aggregate principal amount of bonded indebtedness payable from Tax Revenues which may be outstanding at any time, (ii) the aggregate amount of taxes which may be divided and allocated to the Agency pursuant to the Redevelopment Plan, and (iii) the period of time for establishing loans, advances and indebtedness payable from Tax Revenues. "Proiect Fund" means the fund by that name established and held by the Trustee pursuant to Section 2.07. �6402-0001\770206v1.doc "Oualified 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 2.05, provided that all of the following requirements are met at the time of deposit with the Trustee: (i) either (a) the long-term credit rating of such bank is within one of the two highest rating categories by Moody's or S&P, or the claims paying ability of such insurance company is rated within one of the two highest rating categories by Moody's or S&P, at the time of delivery of such letter of credit or surety bond or (b) the Authority shall cause to be filed with the Trustee written evidence from Moody's and S&P that the delivery of such letter of credit or surety bond will not, of itself, cause a reduction or withdrawal of any rating then assigned to the Bonds; (ii) such letter of credit or surety bond has a term of at least 12 months; (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 2.05; and (iv) the Trustee is. authorized pursuant to the terms of such letter of credit or surety bond to draw thereunder an amount equal to any deficiencies which may exist from time to time with respect to deposits required pursuant to Section 3.03(a). "Redevelopment Fund" means the Project Area No. 1, As Amended, Redevelopment Fund, heretofore established and held by the Agency. "Redevelopment Proiect" means the undertaking of the Agency pursuant to the Redevelopment Plan and the Redevelopment Law for the redevelopment of the Project Area. "Reserve Fund" means the fund by that name held by the Trustee pursuant to Section 2.05. "Reserve Reauirement", as certified in writing to the Trustee by the Agency, means the least of (i) Maximum Annual Debt Service, (ii) 125% of average annual debt service on the Loan and all Outstanding Parity Debt, and (iii) 10% of the proceeds of the Loan and of the proceeds of any Parity Debt. "Special Fund" means the fund by that name held by the Agency pursuant to Section 3.02. "Subordinate Debt" means any loans, advances or indebtedness issued or incurred by the Agency in accordance with the requirements of Section 2.10, which are either: (i) payable from, but not secured by a pledge of or lien upon, the Tax Revenues; or (ii) secured by a pledge of or lien upon the Tax Revenues which is subordinate to the pledge of and lien upon the Tax Revenues hereunder for the security of the Loan and any Parity Debt. �6402-0001\770206v1.doc "Surety Bond" means the Qualified Reserve Fund Credit Instrument issued by the Insurer guaranteeing certain payments into the Reserve Fund with respect to the Bonds as provided therein and subject to the limitations set forth therein. "Tax Revenues" means that portion of the taxes levied upon taxable property in the Project Area, As Amended, allocated and paid into a special fund of the Agency pursuant to Article 6 of Chapter 6 of the Redevelopment Law and Section 16 of Article XVI of the California Constitution, exclusive of amounts placed into the Low and Moderate Income Housing Fund of the Agency pursuant to Sections 33334.2 and 33334.3 of the Redevelopment Law, and excluding amounts payable to affected taxing agencies pursuant to the Pass -Through Agreements. "2002 Loan" means the loan made by the Authority to the Agency pursuant to the 2002 Loan Agreement. "2002 Loan Agreement" means the Project Area No. 1, As Amended, Loan Agreement dated as of March 1, 2002, by and among the Agency, the Authority and BNY Western Trust Company, as trustee. "2003 Loan" means the loan made by the Authority to the Agency pursuant to the 2003 Loan Agreement. "2003 Loan Agreement" means the Project Area No. 1, As Amended, Loan Agreement dated as of July 1, 2003, by and among the Agency, the Authority and BNY Western Trust Company, as trustee. Section 1.02. Rules of Construction. All references herein to "Articles," "Sections" and other subdivisions are to the corresponding Articles, Sections or subdivisions of this Loan Agreement, and the words "herein," "hereof," "hereunder" and other words of similar import refer to this Loan Agreement as a whole and not to any particular Article, Section or subdivision hereof.. �6402-0001\770206v1.doc ARTICLE II THE LOAN; APPLICATION OF LOAN PROCEEDS; PARITY DEBT Section 2.01. Authorization. The Authority hereby agrees to lend to the Agency, from the proceeds of the sale of the Bonds deposited in the Loan Fund established under the Indenture, the principal amount of $ under and subject to the terms of this Loan Agreement, the Bond Law and the Redevelopment Law. This Loan Agreement constitutes a continuing agreement to secure the full and final payment of the Loan, subject to the covenants, agreements, provisions and conditions herein contained. Section 2.02. Disbursement and Application of Loan Proceeds. On the Closing Date, the Authority shall cause to be deposited into the Loan Fund the amount of $ which shall be held by the Trustee and which shall be disbursed as follows: (a) The Trustee shall transfer the amount of $ to the Costs of Issuance Fund. (b) The Trustee shall transfer the amount of $ to the Escrow Agent for deposit in the Escrow Fund. (c) The Trustee shall transfer the remaining amount of $ to the Project Fund. On the Closing Date, the Authority shall also (i) cause the amount of $ and the amount of $ to be paid to the Insurer for the costs of the premiums for the Insurance Policy and the Surety Bond, respectively. The Reserve Requirement will be satisfied by the Surety Bond, and no transfer of Loan proceeds to the Reserve Fund will be required. The Trustee may, in its discretion, establish a temporary fund or account to facilitate or account for the foregoing transfers. Section 2.03. Repavment of Loan. The Agency shall, subject to prepayment as provided in Section 2.04, repay the principal of the Loan in installments on April 1 in each of the years and in the amounts, and shall pay interest on the unpaid principal balance of the Loan due on &402-0001\770206v1.doc each Interest Payment Date not later than the fifth Business Day preceding such Interest Payment Date at the rates, as set forth in Exhibit A attached hereto and by this reference incorporated herein. Such interest shall accrue from the Closing Date. Any installment of principal or interest which is not paid when due shall continue to accrue interest from and including the date on which such principal or interest is payable to but not including the date of actual payment. The obligation of the Agency to repay the Loan is, subject to Section 3.01, absolute and unconditional, and such payments shall not be subject to reduction whether by offset or otherwise and shall not be conditional upon the performance or nonperformance by any party to any agreement for any cause whatsoever. In the event any unpaid principal installments of the Loan shall be prepaid pursuant to Section 2.04, or in the event the Bonds shall be redeemed pursuant to Section 2.03(b), 2.03(c) or 2.03(e) of the Indenture, the schedule of principal installments set forth in Exhibit A hereto shall be reduced on a pro rata basis as directed by the Agency to the Trustee. 96402-0001\770206v1.doc Principal of and interest on the Loan shall be payable by the Agency to the Trustee, as assignee of the Authority under the Indenture, in lawful money of the United States. Payment of such principal and interest shall be secured, and amounts for the payment thereof shall be deposited with the Trustee at the times, as set forth in Article III. Notwithstanding the foregoing provisions of this Section 2.03, in lieu of payment of any installment of principal of the Loan coming due and payable on April 1 in any year in which Bonds are subject to mandatory sinking fund redemption under the Indenture, the Agency shall have the right to purchase any of such Bonds in an amount not exceeding the amount thereof which is subject to mandatory sinking fund redemption on such April 1, and tender such Bonds to the Trustee for cancellation, provided that such tender shall be made before the preceding January 15. Section 2.04. Optional Prenavment. (a) The Agency shall have the right to prepay principal installments of the Loan, in any integral multiple of $5,000, such prepayment to be allocated among such principal installments as the Agency may determine upon Request to the Authority and the Trustee provided not less than 45 days prior to the prepayment date, on any date on which the Bonds are subject to redemption pursuant to Section 2.03(a) of the Indenture, by depositing with the Trustee an amount sufficient to redeem a like aggregate principal amount of Bonds together with the amount of accrued interest and premium, if any, required to be paid upon such redemption. (b) Before making any prepayment pursuant to this Section, the Agency shall give written notice to the Authority and the Trustee describing such event and specifying the date on which the prepayment will be paid and the order thereof, which date shall be not less than 45 days from the date such notice is given; provided, that notwithstanding any such prepayment, the Agency shall not be relieved of its obligations hereunder, including specifically its obligations under this Article, until the Loan shall have been fully paid (or provision for payment thereof shall have been made pursuant to Section 6.03). (c) The Authority agrees that upon payment by the Agency to the Trustee of such amount, the Authority shall take or cause to be taken any and all steps required under the Indenture to redeem such Outstanding Bonds on the redemption date designated by the Agency; provided, however, that such date shall be a date of redemption of Bonds, for which notice has been timely given pursuant to the Indenture. 1�O2-0001\770206v1.doc (d) Notwithstanding the foregoing, the Agency shall not exercise its right to prepay principal installments of the Loan until all amounts owed to the Insurer by the Agency or the Authority under the terms of the Financial Guaranty Agreement or any other document have been paid in full. Section 2.05. Reserve Fund. There has heretofore been established a separate fund known as the "Project Area No. 1, As Amended, Reserve Fund," which shall continue to be held by the Trustee in trust for the benefit of the Authority and the Owners of the Bonds and any Parity Debt. The Agency hereby pledges and grants a lien and a security interest in the Reserve Fund to the Trustee in order to secure the Agency's payment obligations under Section 2.03 and Section 3.03(a). The amount on deposit in the Reserve Fund shall be maintained at the Reserve Requirement at all times, except to the extent required for the purposes set forth in this Section. In the event that the Agency shall fail to deposit with the Trustee the full amount required to be deposited pursuant to Section 3.03(a), the Trustee shall withdraw from the Reserve Fund and transfer to the Interest Account and the Principal Account, in such order, an amount equal to the difference between (i) the amount required to be deposited pursuant to Section 3.03(a) and (ii) the amount actually deposited by the Agency. In the event that the amount on deposit in the Reserve Fund shall at any time be less than the Reserve Requirement, the Trustee shall notify the Agency as soon as practicable of the amount required to be deposited therein to restore the balance to the Reserve Requirement, such notice to be given by telephone, telefax or other form of telecommunications promptly confirmed in writing, and the Agency shall thereupon transfer to the Trustee the amount needed to restore the Reserve Fund to the Reserve Requirement. 1 6 4O2-0001 \770206 v 1. doc In the event that the amount on deposit in the Reserve Fund on the 15th calendar day preceding any Interest Payment Date (other than the final Interest Payment Date), provided that the deposits required by Section 3.03(a) have been made, exceeds the Reserve Requirement, the Trustee shall, at the Request of the Agency, withdraw from the Reserve Fund all amounts in excess of the Reserve Requirement and either (i) apply such amounts toward the prepayment of the Loan pursuant to Section 2.04 or the prepayment of any Parity Debt, or (ii) pay such amounts to the Agency to be used for any lawful purpose relating to the Project Area, as specified in such Request of the Agency. Notwithstanding the foregoing provisions of this paragraph, however, no amounts shall be withdrawn from the Reserve Fund and transferred to the Agency pursuant to this paragraph during any period in which an Event of Default shall have occurred and be continuing hereunder. With the written consent of the Insurer (as long as the Insurance Policy is in full force and effect), 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 release moneys then on hand in the Reserve Fund to the Agency, to be used for any lawful purpose relating to the Project Area, in an amount equal to the face amount of the Qualified Reserve Fund Credit Instrument. If at any time the amount on deposit in, or credited to, the Reserve Fund includes both cash and the Surety Bond, any draw on the Surety Bond shall be made only after all cash in the Reserve Fund has been expended. If at any time the amount credited to the Reserve Fund includes both the Surety Bond and a Qualified Reserve Fund Credit Instrument issued by an entity other than the Insurer, any draw on the Surety Bond shall be made on a pro rata basis with a draw on such other Qualified Reserve Fund Credit Instrument. Section 2.06. Costs of Issuance Fund. There is hereby established a fund to be held by the Trustee known as the "Costs of Issuance Fund" into which shall be deposited a portion of the proceeds of the Loan pursuant to Section 2.02(a). The moneys in the Costs of Issuance Fund shall be used to pay Costs of Issuance from time to time upon receipt of a Request of the Agency. On September 1, 2004, or upon the earlier receipt by the Trustee of a Request of the Agency stating that all Costs of Issuance have been paid, the Trustee shall transfer all remaining amounts in the Costs of Issuance Fund to the Agency. 11�t02-00011770206v 1.doc Section 2.07. Proiect Fund. There is hereby established a fund to be known as the 'Project Fund", which shall be held and maintained by the Trustee. Amounts on deposit in such fund shall be derived solely from the portion of the proceeds of the Loan transferred thereto pursuant to Section 2.02(c), from amounts transferred thereto from the Reserve Fund pursuant to Section 2.05, and from earnings on the investment of amounts therein pursuant to Section 3.04. Except as provided in this Section, the moneys set aside and placed in the Project Fund shall remain therein until expended from time to time for the purpose of paying any portion ofthe costs ofthe Redevelopment Project, and other costs related thereto, which other costs may include, but are not limited to, (a) the cost of improvements and other costs which may not benefit the Redevelopment Project exclusively but which are necessary to the redevelopment of the Proj ect Area and the disposition of land therein; (b) the repayment of any advances made by the City for the Redevelopment Project; and (c) to the extent not paid from the Costs of Issuance Fund, the necessary expenses in connection with the issuance and sale of the Bonds. Before any payment ofmoney is made from the Project Fund, the Agency shall file with the Trustee a Request of the Agency showing with respect to each payment ofmoney to be made -- (a) the name and address of the person to whom payment is due; (b) the amount of money to be paid; (c) the purpose for which the obligation to be paid was incurred; and O2-OOO1\77O2Ov1.doc (d) that such amount has not been paid previously for such purpose from the Project Fund, Each such Request of the Agency shall state and shall be sufficient evidence to the Trustee -- (a) that an obligation in the stated amount has been properly incurred under and pursuant to this Loan Agreement and that such obligation is a proper charge against the Project Fund; and (b) that there has not been filed with or served upon the Agency a stop notice or any other notice of any lien, right to lien or attachment upon, or claim affecting the right to receive payment of, any of the money payable to the person named in such Request of the Agency which has not been released or will not be released simultaneously with the payment of such obligation; other than liens accruing by mere operation of law. Upon receipt of each such Request of the Agency, the Trustee shall pay the amount set forth in such Request of the Agency as directed by the terms thereof. If any moneys deposited in the Project Fund remain therein after the full accomplishment ofthe objects and purposes for which the Loan was made, said moneys shall be transferred to the Special Fund. Section 2.08. Paritv Debt. In addition to the Loan, the Agency may issue or incur Parity Debt in such principal amount as shall be determined by the Agency. The Agency may issue and deliver any Parity Debt subject to the foliowing specific conditions which are hereby made conditions precedent to the issuance and delivery of such Parity Debt issued under this Section 2.08: (a) No Event of Default shall have occurred and be continuing, and the Agency shall otherwise be in compliance with all covenants set forth in this Loan Agreement. (b) The amount of Tax Revenues for the then current Fiscal Year, as set forth in a Certificate of the Agency, based 011 assessed valuation ofproperty in the Project Area, As Amended as evidenced in the written records ofthe County, and projected annual Tax Revenues over the term of this Loan Agreement based 011 current Tax Revenue collections, shall be at least equal to 115 percent ofMaximum Annual Debt Service. O2-OOO1\77O2O6v1.doc (c) The balance in the Reserve Fund shall be increased to an amount which equals the Reserve Requirement. (d) The related Parity Debt Instrument shall provide that: (1) Interest on such Parity Debt shall be payable, except for the first 12-month period thereof, which may be payable at the end of such period, on the same dates that interest on the Loan is payable and (2) The principal of such Parity Debt shall not be payable 011 any date other than the date on which principal ofthe Loan is payable. (e) The issuance of such Parity Debt shall not cause the Agency to exceed any applicable Plan Limitations. (f) The Agency shall deliver to the Trustee a Certificate of the Agency certifying that the conditions precedent to the issuance of such Parity Debt set forth in Paragraphs (a) through (e), above, have been satisfied. O2-OOO1\77O2O6v1 .doc Section 2.09. Issuance of Subordinate Debt. In addition to the Loan and any Parity Debt, from time to time the Agency may issue or incur Subordinate Debt in such principal amount as shall be determined by the Agency, provided that the issuance of such Subordinate Debt shall not cause the Agency to exceed any applicable Plan Limitations. Section 2.10. Validitv ofLoan. The validity ofthe Loan shall not be dependent upon the completion ofthe Redevelopment Project or upon the performance by any person of any obligation with respect to the Redevelopment Project. ARTICLE 111 PLEDGE AND APPLICATION OF TAX REVENUES Section 3.01. P1ede ofTax Revenues. The Loan and all Parity Debt shall be equally secured by a first piedge of and lien on all of the Tax Revenues and all of the moneys 011 deposit in the Special Fund, without preference or priority for series, issue, number, dated date, sale date, date of execution or date of delivery. Except for the Tax Revenues and other funds pledged hereunder, no funds or properties of the Agency shall be pledged to, or otherwise liable for, the payment of priincipal of or interest 011 or prepayment premium, if any, on the Loan. Section 3.02. Snecial Fund: Deposit of Tax Revenues. There has heretofore been established a special fund ofthe Agency known as the "Special Fund", which shall be held by the Agency as a separate fund apart from all other funds and accounts of the Agency. The Agency shall deposit all Tax Revenues in the Special Fund promptly upon the receipt thereof. Except as may be otherwise provided in any Parity Debt Instrument, any Tax Revenues received during the Bond Year in excess of amounts required to be transferred to the Trustee pursuant to Section 3.03 shall be released from the piedge and lien hereunder and may be used for any lawful purposes of the Agency. Prior to the payment in full of the principal of and interest and prepayment premium, if any, on the Loan and ali Parity Debt and the payment in full of all other amounts payable hereunder and under any Parity Debt Instrument, the Agency shall not have any beneficial right or interest in the moneys 011 deposit in the Special Fund, except only as provided in this Loan Agreement and in any Parity Debt Instrument, and such moneys shall be used and applied as set forth herein and in any Parity Debt Instrument. O2-OOO1\77Q2O6v1.doc Section 3.03. Transfer of Tax Revenues From Special Fund. In addition to the transfers required to be made pursuant to any Parity Debt Instrument, the Agency shall withdraw from the Special Fund and transfer to the Trustee the foliowing amounts at the foliowing times and in the foliowing order of priority: (a) Interest and Principal Deposits. No later than the fiflh Business Day preceding each date on which the principal of or interest on the Loan or any Parity Debt shall become due and payable, including but not limited to the principal amount of the Loan to be prepaid hereunder together with any prepayment premium thereon, the Agency shall withdraw from the Special Fund and transfer to the Trustee an amount which, together with the amounts then held 011 deposit in the Interest Account, the Principal Account and the Revenue Fund, is equal to the aggregate amount of such principal, interest and prepayment premium. (b) Reserve Fund Deposits. In the event that the Trustee shall notify the Agency pursuant to Section 2.05 that the amount on deposit in the Reserve Fund is less than the Reserve Requirement, the Agency shall immediately withdraw from the Special Fund and transfer to the Trustee for deposit in the Reserve Fund an amount ofmoney necessary to maintain the Reserve Requirement in the Reserve Fund (including repayment of any draw made under a Qualified Reserve Fund Credit Instrument, including the Surety Bond, prior to replenishing any cash in the Reserve Fund). O2OOO1\77O2O6v1.doc (c) Surnlus. Except as may be otherwise provided in any Parity Debt Instrument, the Agency shall not be obligated to deposit in the Special Fund in any Bond Year an amount of Tax Revenues which, together with other available amounts in the Special Fund, exceeds the amounts required in such Bond Year pursuant to this Section 3.03; and all Tax Revenues which are received by the Agency during any Bond Year in excess ofthe amounts required to be deposited in the Special Fund in such Bond Year shall be reeased from the piedge thereof and lien thereon which is established pursuant hereto. In the event that for any reason whatsoever any amounts shall remain on deposit in the Special Fund on any April 2 after making all of the transfers theretofore required to be made pursuant to the preceding Paragraphs (a) and (b) and pursuant to any Parity Debt Instrument, the Agency may withdraw such amounts from the Special Fund, to be used for any lawful purposes of the Agency, including but not limited to the payment of any Subordinate Debt or the payment of any amounts due and owing to the United States pursuant to Section 4.11. Section 3.04. Investment ofMoneys: Valuation of Investments. All moneys in the Redevelopment Fund and the Special Fund shall be invested by the Agency, and all moneys in the Project Fund shall be invested by the Trustee, in Permitted Investments. Obligations purchased as an investment ofmoneys in any fund or account established hereunder shall be credited to and deemed to be part of such fund or account. The Agency or the Trustee, as the case may be, may commingle any amounts in any of the funds and accounts held hereunder with any other amounts held it for purposes of making any investment, provided that the Agency and the Trustee shall maintain separate accounting procedures for the investment of all funds and accounts held hereunder. All interest, profits and other income received from the investment of moneys in any fund or account established hereunder shall be credited to such fund or account. Notwithstanding anything to the contrary contained in this Section 3.04, an amount of interest received with respect to any investment equal to the amount of accrued interest, if any, paid as part of the purchase price of such investment shall be credited to the fund or account from which such accrued interest was paid. For the purpose of detemiining the amount in any fund or account established hereunder, any investments credited to such fund shall be valued at least annually at the market value thereof. ARTICLE TV OTHER COVENANTS OF THE AGENCY O2OOO1\77O2O6v1.doc Section 4.01. Punctual Pavment: Extension of Pavments. The Agency shall punctually pay or cause to be paid the principal of and interest and prepayment premium, if any, on the Loan in strict conformity with the terms of this Loan Agreement, and it will faithfully observe and perform all of the conditions, covenants and requirements of this Loan Agreement. The Agency shall not directly or indirectly extend or assent to the extension of the maturity of any instaflment of principal of or interest or prepayment premium, if any, on the Loan, and in case the principal of or interest or premium, if any, on the Loan or the time of payment of any such claims therefor shall be extended, such principal, interest, premium or claims for interest shall not be entitled, in case of any Event of Default hereunder, to the benefits of this Loan Agreement except for payment of all amounts which shall not have been so extended. Section 4.02. Limitation on Additional Indebtedness. The Agency hereby covenants that it shall not issue any bonds, notes or other obligations, enter into any agreement or otherwise incur any indebtedness, which is in any case payable from all or any part ofthe Tax Revenues, excepting only the Loan, any Parity Debt, and any Subordinate Debt, and any obligations entered into pursuant to Section 4.09. Section 4.03. Pavment ofClaims. The Agency shall pay and discharge, or cause to be paid and discharged, any and all lawful claims for labor, materials or supplies which, if unpaid, might become a lien or charge upon the properties owned by the Agency or upon the Tax Revenues or any part thereof, or upon any funds in the hands of the Trustee, or which might impair the security of the Loan. Nothing herein contained shall require the Agency to make any such payment so long as the Agency in good faith shall contest the validity of said claims. O2-OOO 1\770206v1.doc Section 4.04. Books and Accounts: Financial Statements. The Agency shall keep, or cause to be kept, proper books ofrecord and accounts, separate from all other records and accounts of the Agency and the City, in which complete and correct entries shaU be made of all transactions relating to the Redevelopment Project, the Tax Revenues, the Special Fund, the Reserve Fund, the Low and Moderate Income Housing Fund and the Redevelopment Fund. Such books of record and accounts shall at all times during business hours be subject, upon prior written request, to the reasonable inspection of the Authority, the Trustee and the Owners of not less than ten percent in aggregate principal amount of the Bonds then Outstanding, or their representatives authorized in writing. The Agency will cause to be prepared annnally, within 180 days after the close of each Fiscal Year so long as any of the Bonds are Outstanding, complete audited financial statements with respect to such Fiscal Year showing the Tax Revenues, all disbursements from the Special Fund and the Redevelopment Fund and the financial condition ofthe Redevelopment Project, including the balances in all funds and accounts relating to the Redevelopment Project, as ofthe end of such Fiscal Year. The Agency will furnish a copy of such statements, upon reasonable request, to any Owner. Section 4.05. Protection of Securitv and Rights. The Agency will preserve and protect the security ofthe Loan and the rights ofthe Trustee and the Owners with respect to the Loan. From and after the Closing Date, the Loan shall be incontestable by the Agency. The Loan and the provisions of this Loan Agreement are and will be the legal, valid and binding special obligations of the Agency enforceable in accordance with their terms, and the Agency shall at all times, to the extent permitted by law, defend, preserve and protect all the rights of the Trustee and the Owners under this Loan Agreement against all claims and demands of all persons whomsoever. The Agency's obligations to the Trustee under this Section 4.05 shall survive the payment of the Bonds and the discharge of the Indenture, the removal or resignation of the Trustee pursuant to the Indenture or the payment of the Loan and the discharge of this Loan Agreement. Section 4.06. Pavments of Taxes and Other Chares. The Agency will pay and discharge, or cause to be paid and discharged, all taxes, service charges, assessments and other governmental charges which may hereafter be lawfully imposed upon the Agency or the properties then owned by the Agency in the Project Area, As Amended, when the same shall become due. Nothing herein contained shall require the Agency to make any such payment so long as the Agency in good faith shall contest the validity of such taxes, assessments or charges. The Agency will duly observe and comply with all O2-OOO1\77O2O6v1.doc valid requirements of any governmental authority relative to the Redevelopment Project or any part thereof. Section 4.07. Taxation of Leased Property. AH ad valorem property taxes derived by the Agency pursuant to Section 33673 ofthe Redevelopment Law with respect to the lease of property for redevelopment shall be treated as Tax Revenues for all purposes of this Loan Agreement, and shall be deposited by the Agency in the Special Fund promptly upon receipt. Section 4.08. Disposition ofPropertv. The Agency wiU not participate in the disposition of any land or real property in the Project Area, As Amended, to anyone which will result in such property becorning exempt from taxation because ofpublic ownership or use or otherwise (except property dedicated for public right-of-way and except property planned for public ownership or use by the Redevelopment Plan in effect on the date of this Loan Agreement) so that such disposition shall, when taken together with other such dispositions, aggregate more than ten percent of the land area in the Project Area, As Amended, uness such disposition is permitted as hereinafter provided in this Section 4.08. Ifthe Agency proposes to participate in such a disposition, it shali thereupon appoint an Independent Redevelopment Consultant to report on the effect of said proposed disposition. If the Report of the Independent Redevelopment Consultant concludes that the security of the Loan or the rights of the Authority, the Owners and the Trustee hereunder will not be materiafly impaired by said proposed disposition, the Agency may thereafter make such disposition. If such Report concludes that such security will be materially impaired by such proposed disposition, the Agency shall disapprove said proposed disposition. O2-OOO 1\770206v1 .doc Section 4.09. Maintenance of Tax Revenues. The Agency shall comply with all requirements of the Redevelopment Law to insure the allocation and payment to it of the Tax Revenues, including without limitation the timely fihing of any necessary statements of indebtedness with appropriate officials of the County and (in the case of supplemental revenues and other amounts payable by the State) appropriate officials of the State. The Agency shall not amend the Redevelopment Plan or any ofthe Pass - Through Agreements, or enter into any agreement with the County or any other governmental unit, which would have the effect of reducing the amount of Tax Revenues available to the Agency for payment of the Loan, unless the Agency shall first obtain (a) the Report of an Independent Redevellopment Consultant stating that the amount of Tax Revenues for the then current Fiseal Year (calculated 011 the assumption that such reduction of Tax Revenues was in effect throughout such Fiscal Year), shall be at least equal to 115 percent of Maximum Annual Debt Service and (b), as long as the Insurance Policy is in full force and effect, the written consent ofthe Insurer. Nothing herein is intended or shall be construed in any way to prohibit or impose any limitations on the entering into by the Agency of any such agreement, amendment or supplement which by its term is subordinate to the payment of the Loan and all Parity Debt. Section 4.10. Pavment ofExpenses: Indemnification. The Agency shall pay to the Trustee from time to time all compensation for all services rendered under this Loan Agreement and the Indenture, including but not limited to all reasonable expenses, charges, legal and consulting fees and other disbursements and those ofits attomeys, agents and employees, incurred in and about the performance of its powers and duties hereunder and thereunder. Upon the occurrence of an Event of Default, the Trustee shall have a first lien 011 the funds held by it under the Indenture to secure the payment to the Trustee of all fees, costs and expenses, including reasonable compensation to its experts, attorneys and counsel (including the allocated costs and disbursements of in-house counsel 10 the extent the services of such counsel are not duplicative of services provided by outside counsel) incurred in perforrning its duties under the Indenture and this Loan Agreement. The Agency further covenants and agrees to indemnifi, defend and save the Trustee and its officers, directors, agents and employees, harmless against any losses, expenses and liabilities which it may incur arising out of or in the exercise and performance of its powers and duties hereunder, including the costs and expenses of defending against any claim of liability, but excluding any and all losses, expenses and liabilities which are due to the negligence or intentional misconduct of the Trustee, its officers, directors, agents or employees. The obligations ofthe Agency under this O2-OOO 1\770206v 1.doc paragraph shall survive the resignation or removal ofthe Trustee under the Indenture, this Loan Agreement and payment of the Loan and the discharge of this Loan Agreement. Section 4.11. Tax Covenants. (a) The Agency covenants that, in order to maintain the exclusion from gross income for Federal income tax purposes of the interest on the Bonds, and for no other purpose, the Agency will satisfy, or take such actions as are necessary to cause to be satisfied, each provision of the Code necessary to maintain such exclusion. In furtherance of this covenant the Agency agrees to comply with such written instructions as may be provided by Bond Counsel. (b) The Agency covenants that no part ofthe proceeds ofthe Bonds shall be used, directly or indirectly, to acquire any Investment Property which would cause the Bonds to become arbitrage bonds as that term is defined in Section 148 ofthe Code, or under applicable Tax Regulations. In order to assure compliance with the rebate requirements of Section 148 of the Code, the Agency further covenants that it will pay or cause to be paid to the United States the amounts necessary to satisfy the requirements of Section 148(f) of the Code, and that it will establish such accounting procedures as are necessary to adequately determine, account for and pay over any such amount required to be paid thereunder in a manner consistent with the requirements of Section 148 ofthe Code, such covenants to survive the defeasance ofthe Bonds. O2-OOO 1\770206v1 .doc (c) The Agency covenants that it will not take any action or omit to take any action, which action or omission, if reasonably expected 011 the date of initial execution and delivery of the Bonds, would result in a loss of exclusion from gross income for purposes of Federal income taxation, under Section 103 of the Code, of interest on the Bonds. (d) The Agency covenants that it will not use or permit the use of any property financed with the proceeds of the Bonds by any person (other than a state or local governmental unit) in such manner or to such extent as would result in a loss of exclusion of the interest on the Bonds from gross income for Federal income tax purposes under Section 103 ofthe Code. (e) Notwithstanding any provision of the Indenture, and except as provided below, the Agency covenants that none of the moneys contained in any of the funds or accounts created pursuant to the Indenture with respect to the Bonds shaU be: (i) used in making loans guaranteed by the United States (or any agency or instrumentality thereof), (ii) invested directly or indirectly in a deposit or account insured by the Federal Deposit Insurance Corporation, National Credit Union Administration or any other similar Federaily chartered corporation, or (iii) otherwise invested directly or indirectly in obligations guaranteed (in whole or in part).by the United States (or any agency or instrumentality thereof); provided, however, that the above restrictions do not apply to: (a) the investment on moneys held in the Revenue Fund or any other "bona fide debt service fund" as defined for purposes of Section 148 ofthe Code, (b) investment in direct obligations of the United States Treasury, (c) investment in obligations guaranteed by the Federal National Mortgage Association, Government National Mortgage Association, or the Federal Home Loan Mortgage Corporation, (d) investment in obligations issued pursuant to Section 21 B(d)(3) of the Federal Home Loan Bank Act, as amended by Section 511(a) of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, (e) investments permitted under regulations issued pursuant to Section 149(b)(3)(B) ofthe Code, or (f) such other investments permitted under the Indenture as, in the opinion ofBond Counsel, do not jeopardize the exclusion from gross income for Federal income tax purposes of interest 011 the Bonds. Section 4.12. Redevelopment of Proiect Area. As Amended. The Agency shall ensure that all activities undertaken by the Agency with respect to the redevelopment of the Project Area, As Amended, are undertaken and accomplished in conformity with all applicable requirements of the Redevelopment Plan and the Redevelopment Law. The Agency shall manage and operate all properties owned by the Agency and comprising any part ofthe Redevelopment Project in a sound and business- O2-OOO1\77O2O6v1.doc like manner and in conformity with all valid requirements of any govemmental authority, and will keep such properties insured at ali times in conformity with sound business practice. Section 4.13. Low and Moderate Income Housing Fund. The Agency covenants and agrees to use the moneys in the Low and Moderate Income Housing Fund in accordance with Sections 33334.2 and 33334.3 ofthe Redevelopment Law, and further covenants and agrees to disburse, expend or encumber any "excess surplus" (as defined in Section 33334.12 ofthe Redevelopment Law) in the Low and Moderate Income Housing Fund at such times and in such manner that the Agency shall not be subject to sanctions pursuant to subdivision (e) of said Section 33334.12. Section 4.14. Annual Review ofTax Revenues. The Agency hereby covenants that it will annually cause an Independent Redevelopment Consultant to review the total amount of Tax Revenues remaining available to be received by the Agency under the Redevelopment Plan's cumulative tax increment limitation, as well as future cumulative annual debt service with respect to the Loan and all Parity Debt. The Agency wilfl not accept Tax Revenues greater than such annual debt service in any year, if such acceptance will cause the amount remaining under the tax increment limit to fall below remaining cumulative annual debt service with respect to the Loan and all Parity Debt, except for the purpose of depositing such revenues in escrow for the payment of such debt service or for the prepayment or redemption of the Loan or any Parity Debt. Once it is determined that Tax Revenues available to be received by the Agency under the aforementioned tax increment limitation in an upcoming year will not exceed 110 percent of aggregate remaining debt service on the Loan and all outstanding Parity Debt, the Agency shall escrow all current and future Tax Revenues and use such amounts solely for the purpose ofpaying debt service on the Loan and all Parity Debt. O2-OOO1\77O2O6v1.doc Section 4.15. Further Assurances. The Agency will adopt, make, execute and deliver any and all such further resolutions, instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Loan Agreement and for the better assuring and confirming unto the Trustee, the Authority and the Owners ofthe Bonds ofthe rights and benefits provided in this Loan Agreement. ARTICLE V EVENTS OF DEFAULT AND REMEDIES Section 5.01. Events ofDefault and Acceleration ofMaturities. The foliowing events shall constitute Events of Default hereunder: (a) Failure by the Agency to pay the principal of or interest or prepayment premium, if any, on the Loan or any Parity Debt when and as the same shall become due and payable. (b) Failure by the Agency to observe and perform any of the covenants, agreements or conditions on its part contained in this Loan Agreement, other than as referred to in the preceding Paragraph (a), for a period of 60 days afier written notice specifying such failure and requesting that it be remedied has been given to the Agency by the Trustee; provided, however, that if the failure stated in such notice can be corrected, but not within such 60 day period, such failure shall not constitute an Event of Default if corrective action is instituted by the Agency within such 60 day period and thereafter is diligently pursued until such failure is corrected. (c) The fihing by the Agency of a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law of the United States of America, or if a court of competent jurisdiction shall approve a petition, filed with or without the consent of the Agency, seeking reorganization under the federal bankruptcy laws or any other applicable law of the United States of America, or if, under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or contro1 of the Agency or of the whole or any substantial part of its property. If an Event of Default has occurred and is continuing, the Authority or the Trustee may, and at the written direction of the Owners of a maj ority in aggregate O2-OOO1\77O2O6v1.doc principal amount ofthe Outstanding Bonds the Authority or the Trustee shall, (i) declare the principal of the Loan, together with the accrued interest on all unpaid installments thereof, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable, anything in this Loan Agreement to the eontrary notwithstanding, and (ii) subject to the receipt of indemnity as provided in the Indenture, exercise any other remedies available to the Trustee at law or in equity. Immediate1y upon becoming aware of the occurrence of an Event of Default, the Authority, or the Trustee as assignee of the Authority, shall give notice of such Event of Default to the Agency by telephone, telecopier or other tellecommunication device, promptly confirmed in writing. This provision, however, is subject to the condition that if, at any time after the principal of the Loan shall have been so declared due and payablle, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered, the Agency shafl deposit with the Trustee a sum sufficient to pay all installments of principal of the Loan matured prior to such declaration and all accrued interest thereon, with interest 011 such overdue installments ofprincipal and interest at the net effective rate then borne by the Outstanding Bonds, and the reasonable expenses of the Trustee (including but not limited to attorneys fees), and any and all other defaults known to the Trustee (other than in the payment of principal of and interest on the Loan due and payable solely by reason of such declaration) shall have been made good or cured to the satisfaction of the Trustee or provision deemed by the Trustee to be adequate shail have been made therefor, then, and in every such case, the Owners of a majority in aggregate principal amount of the Outstanding Bonds may, by written notice to the Trustee and the Agency, rescind and annul such declaration and its consequences. However, no such rescission and annulment shall extend to or shall affect any subsequent default, or shall impair or exhaust any right or power consequent thereon. O2-OOO1\77O2O6v1.doc Section 5.02. Application ofFunds Upon Default. All amounts received by the Trustee pursuant to any right given or action taken by the Trustee under the provisions of this Loan Agreement, shall be applied by the Trustee in the foliowing order: First, to the payment ofthe fees, costs and expenses ofthe Trustee, including reasonable compensation to its agents, attorneys and counsel (inc1uding the allocated costs and disbursements of in-house counsel to the extent the services of such counsel are not duplicative of services provided by outside counsel); and Second, to the payment of the whole amount of interest on and principal of the Loan then due and unpaid, with interest on overdue installments ofprincipal and interest to the extent permitted by law at the net effective rate of interest then borne by the Outstanding Bonds; provided, however, that in the event such amounts shall be insufficient to pay in full the full amount of such interest and principal, then such amounts shall be applied in the foliowing order of priority: (i) first, to the payment of all installments of interest on the Loan then due and unpaid, on a pro rata basis in the event that the available amounts are insufficient to pay all such interest in full, (ii) second, to the payment of all installments of principal of the Loan then due and payable, on a pro rata basis in the event that the available amounts are installments of principal in full, and (iii) third, to the payment of interest on overdue installments of principal and interest, on a pro rata basis in the event that the available amounts are insufficient to pay all such interest in full. Section 5.03. No Waiver. Nothing in this Article V or in any other provision of this Loan Agreement, shall affect or impair the obligation of the Agency, which is absolute and unconditional, to pay from the Tax Revenues and other amounts pledged hereunder, the principal of and interest and premium, if any, on the Loan to the Trustee when due, as herein provided, or affect or impair the right of action, which is also absolute and unconditional, ofthe Trustee to institute suit to enforce such payment by virtue of the contract embodied in this Loan Agreement. A waiver of any default by the Trustee shall not affect any subsequent default or impair any rights or remedies on the subsequent default. No delay or omission of the Trustee to exercise any right or power accruing upon any default shall impair any O2OOO1\7O2O6v1.doc such right or power or shall be construed to be a waiver of any such default or an acquiescence therein, and every power and remedy conferred upon the Trustee by the Redevelopment Law or by this Articlle V may be enforced and exercised from time to time and as often as shall be deemed expedient by the Trustee. If a suit, action or proceeding to enforce any right or exercise any remedy shall be abandoned or determined adversely to the Trustee, the Agency and the Trustee shall be restored to their former positions, rights and remedies as if such suit, action or proceeding had not been brought or taken. Section 5.04. Areement to Pav Attornevs' Fees and Bxpenses. In the event either party to this Agreement should default under any of the provisions hereof and the nondefaulting party or the Trustee should employ attorneys or incur other expenses for the coHection ofmoneys or the enforcement or performance or observance of any obligation or agreement on the part of the defaulting party herein contained, the defaulting party agrees that it will on demand therefor pay to the nondefaulting party or the Trustee, as the case may be, the reasonable fees of such attomeys and such other expenses so incurred (including the allocated costs and disbursements of in-house counsel to the extent the services of such counsel are not duplicative of services provided by outside counsel). Section 5.05. Remedies Not Exclusive. No remedy herein conferred upon or reserved to the Trustee is intended to be exclusive of any other remedy. Every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing, at law or in equity or by statute or otherwise, and may be exercised without exhausting and without regard to any other remedy conferred by the Redevelopment Law or any other law. O2-OOO1\77O2Ov1.doc Section 5.06. Control of Remedies bv Insurer. Notwithstanding the provisions of Section 5.01, as long as the Insurance Policy is in full force and effect, upon the occurrence and continuance of an Event of Default, the Insurer shall be entitled to control and direct the enforcement of all rights and remedies granted to the Owners or the Trustee for the benefit of the Owners under this Loan Agreement. Any acceleration of the Loan or annulment thereof pursuant to Section 5.01 shall be subject to the prior written consent of the Insurer. No waiver of a default sliall be effective without the written consent of the Insurer. ARTICLE VI MISCELLANEOUS Section 6.01. Benefits Limited to Parties. Nothing in this Loan Agreement, expressed or implied, is intended to give to any person other than the Agency, the Trustee and the Authority, any right, remedy or claim under or by reason of this Loan Agreement. All covenants, stipulations, promises or agreements in this Loan Agreement contained by and 011 behalf of the Agency shall be for the sole and exclusive benefit of the Authority and ofthe Trustee acting as trustee for the benefit ofthe Owners ofthe Bonds. Section 6.02. Successor is Deemed Inc1uded in All References to Predecessor. Whenever in this Loan Agreement either the Agency, 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 Loan Agreement contained by or on behalf of the Agency, the Authority or the Trustee shall bind and inure to the benefit ofthe respective successors and assigns thereofwhether so expressed or not. Section 6.03. Dischare ofLoan Areement. Ifthe Agency shall pay and discharge the indebtedness on the Loan or any portion thereof in any one or more of the foflowing ways: (a) by well and truly paying or causing to be paid the principal of and interest and prepayment premiums, if any, 011 the Loan or such portion thereof, as and when the same become due and payable; (b5 by irrevocably depositing with the Trustee, in trust, at or before maturity, cash in an amount which, together with the available amounts then 011 deposit in any of the funds and accounts established pursuant to the Indenture or this Loan Agreement, in the opinion or report of an Independent Accountant is fully sufficient to O2-OOO 1\770206v1.doc pay all principal of and interest and prepayment premiums, if any, on the Loan or such portion thereof or (c) by irrevocably depositing with the Trustee or any other fiduciary, in trust, non -callable Defeasance Obligations in such amount as an Independent Accountant shall determine will, together with the interest to accrue thereon and available moneys then on deposit in the funds and accounts established pursuant to the Indenture or a Supplemental Indenture or this Loan Agreement, be fully sufficient to pay and discharge the indebtedness on the Loan or such portion thereof (ineluding all principal, interest and prepayment premiums) at or before maturity; d4O2-OOO 1 \770206v1 .doc then, at the election of the Agency but only if all other arnounts then due and payable hereunder shall have been paid or provision for their payment made, the piedge of and lien upon the Tax Revenues and other funds provided for in this Loan Agreement and ali other obligations of the Trustee, the Authority and the Agency under this Loan Agreement with respect to the Loan or such portion thereof shall cease and terminate, except only the obligation of the Agency to pay or cause to be paid to the Trustee, from the amounts so deposited with the Trustee or such other fiduciary, all sums due with respect to the Loan or such portion thereof, and to pay all expenses and costs of the Trustee when and as such expenses and costs become due and payable. Notice of such e1ection shall be filed with the Authority and the Trustee. Any funds thereafter held by the Trustee hereunder, which are not required for said purpose, shall be paid over to the Agency. Section 6.04. Amendment. This Loan Agreement may be amended by the parties hereto but only under the circumstances set forth in, and in accordance with, the provisions of Section 5.08 ofthe Indenture. The Authority and the Trustee covenant that the Indenture shall not be amended, nor shall the Authority agree or consent to any amendrnent of the Indenture, without the prior written consent of the Agency (except that such consent shall not be required in the event that an Event of Default shall have occurred and be continuing hereunder). Section 6.05. Waiver ofPersonal Liability. No member, officer, agent or employee of the Agency shall be individually or personaily liable for the payment of the principal of or interest 011 the Loan; but nothing herein contained shall relieve any such member, officer, agent or employee from the performance of any official duty provided bylaw. Section 6.06. Pavment 011 Business Days. Whenever in this Loan Agreement any amount is required to be paid on a day which is not a Business Day, such payment shall be required to be made on the Business Day immediately foliowing such day, provided that interest on such payment shall not accrue from and after such day. Section 6.07. Notices. Any notice, request, demand or other communication under this Loan Agreement shall be given by first class mail or personal delivery to the party entitled thereto at its address set forth below, or by telecopy or other form oftelecommunication, at its number set forth below. Notice shafl be effective either (i) upon transmission by telecopy or other form of telecommunication, (ii) upon receipt after deposit in the United States mail, postage prepaid, or (iii) in the case of personal deliveiy to any person, upon actual receipt. The Authority, the Agency or the Trustee O2-OOO1\77O2O6v1.doc may, by written notice to the other parties, from time to time modify the address or number to which communications are to be given hereunder. If to the Authority: If to the Agency: If to the Trustee: If to the Insurer: O2-OOO1\77O2O6v1.doc Paim Desert Financing Authority 73-510 Fred Waring Drive Paim Desert, California 92260 Attention: Chief Administrative Officer Telecopier: (760) 340-0574 Paim Desert Redevelopment Agency 73-510 Fred Waring Drive Paim Desert, California 92260 Attention: Executive Director Telecopier: (760) 340-0574 BNY Westem Trust Company 700 South Fiower Street, Suite 500 Los Angeles, California 90017-4104 Attention: Corporate Trust Department Telecopier: (213) 630-6215 MBIA Insurance Corporation 113 King Street Armonk, New York 10504 Attention: Insured Portfolio Management Group Telecopier: (914) 765-3161 Section 6.08. Bond Insurance. As long as the Insurance Policy is in full force and effect with respect to the Bonds, the Agency shall, 011 an annual basis, furnish the Insurer with copies of its audited financial statements and its annual budget; and shall deliver to the Insurer a copy of the disclosure document, if any, circulated with respect to anyParityDebt. Section 6.09. Suretv Bond. (a) To draw upon the Surety Bond pursuant to Section 2.05, the Trustee shall deliver to the Insurer a Demand for Payment, in the form attached to the Surety Bond, at least three (3) days prior to the date 011 which funds are required under Section 3.03(a). (b) As security for its rights hereunder, the Insurer shall be deemed to have a security interest in the Tax Revenues, subject onlyto any security interest ofthe Trustee or of the Owners of the Bonds or of the owners of any Parity Debt. (c) Notwithstanding the provisions of Section 6.03, this Loan Agreement shall not terminate and no money shall be released by the Trustee to the Agency until all sums owed to the Insurer by the Agency or the Authority under the terms of the Financial Guaranty Agreement or any other document have been paid in full. (d) The Trustee shall maintain adequate records, verified with the Insurer, as to the amount available to be drawn at any given time under the Surety Bond and as to the amounts paid and owing to the Insurer under the terms of the Financial Guaranty Agreement. Section 6.10. Partial Inva1iditv. If any Section, paragraph, sentence, clause or phrase of this Loan Agreement shall for any reason be held iliegal, invalid or unenforceable, such holding shall not affect the validity of the remaining portions of this Loan Agreement. The Agency hereby declares that it would have adopted this Loan Agreement and each and every other Section, paragraph, sentence, clause or phrase hereof and authorized the Loan irrespective of the fact that any one or more Sections, paragraphs, sentences, clauses, or phrases of this Loan Agreement may be held iliegal, invalid or unenforceable. Section 6.11. Article and Section Headings and References. The headings or tities 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 MO2-OOO1\77O2O6v1.do meaning, construction or effect of this Agreement. All references herein to "Articles," "Sections" and other subdivisions are to the corresponding Articles, Sections or subdivisions of this Agreement; the words "herein," "hereof," "hereby," "hereunder" and other words of similar import refer to this Agreement 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. Section 6.12. Execution of Counteraarts. This Agreement may be executed in any number of counterparts, each of which shall for all purposes be deemed to be an original and all of which shall together constitute but one and the same instrument. Section 6.13. Governin� Law. This Agreement shall be construed and governed in accordance with the laws of the State. Section 6.14. The Trustee. The Trustee is entering into this Agreement solely in its capacity as Trustee under the Indenture and all provisions of the Indenture relating to the rights, privileges, powers and protections of the Trustee shall apply with equal force and effect to all actions taken by the Trustee�in connection with this Agreement. The Trustee shall be responsible only for the duties of the Trustee expressly set forth herein. IN WITNESS WHEREOF, the AGENCY, the AUTHORITY and the TRUSTEE have caused this Loan Agreement to be signed by their respective officers, all as of the day and year first above written. �oa-000t���oao6�i.ao� PALM DESERT REDEVELOPMENT AGENCY By Executive Director PALM DESERT FINANCING AUTHORITY By Chief Administrative Otticer BNY WESTERN TRUST COMPANY, as Trustee By 402-0001\770206v1.doc Authorized Otticer O2-OOO1\77O2O6v1 .doc . _ ._.._. . SCHEDULE OF LOAN PAYMENTS* Date Principal Interest Total F.QiI $6402-0001\770206v1.doc Section 4.06. Payments of Taxes and Other Charges 17 Section 4.07. Taxation of Leased Property 17 Section 4.08. Disposition of Property 17 Section 4.09. Maintenance of Tax Revenues 18 Section 4.10. Payment of Expenses; Indemnification 1 g Section 4.11. Tax Covenants 19 Section 4.12. Redevelopment of Project Area, As Amended 20 Section 4.13. Low and Moderate Income Housing Fund 20 Section 4.14. Annual Review of Tax Revenues 20 Section 4.15. Further Assurances 21 ARTICLE V EVENTS OF DEFAULT AND REMEDIES 21 Section 5.01. Events of Default and Acceleration of Maturities 21 Section 5.02. Application of Funds Upon Default 22 Section 5.03. No Waiver 23 Section 5.04. Agreement to Pay Attorneys' Fees and Expenses 24 Section 5.05. Remedies Not Exclusive 24 Section 5.06. Control of Remedies by Insurer 24 ARTICLE VI MISCELLANEOUS 24 Section 6.01. Benefits Limited to Parties 24 Section 6.02. Successor is Deemed Included in All References to Predecessor 25 Section 6.03. Discharge of Loan Agreement 25 Section 6.04. Amendment 26 Section 6.05. Waiver of Personal Liability 26 Section 6.06. Payment on Business Days 26 Section 6.07. Notices 26 Section 6.08. Bond Insurance 27 Section 6.09. Surety Bond. 27 Section 6.10. Partial Invalidity 28 PK402-0001\770206v1.doc TABLE 4F CONTENTS Pa�e Recitals.......................................................................................................................................... 1 ARTICLE I DEFINITIONS ................................................................................................. 2 Section 1.01. Definitions .....:......................................................................................... 2 Section 1.02. Rules of Construction ............................................................................. 7 ARTICLE II THE LOAN; APPLICATION OF LOAN PROCEEDS; PARITY DEBT 7 Section 2.01. Authorization ........................................................................................... 7 Section 2.02. Disbursement and Application of Loan Proceeds ............................... 7 Section 2.03. Repayment of Loan ................................................................................ 8 Section 2.04. Optional Prepayment .............................................................................. 8 Section2.05. Reserve Fund ........................................................................................... 9 Section 2.06. Costs of Issuance Fund ........................................................................ 10 Section 2.07. Project Fund . ...................................:..................................................... 11 Section 2.08. Parity Debt ............................................................................................. 12 Section 2.09. Issuance of Subordinate Debt .............................................................. 13 Section2.10. Validity of Loan .................................................................................... 13 ARTICLE III PLEDGE AND APPLICATION OF TAX REVENUES ......................... 13 Section 3.01. Pledge of Tax Revenues .................:..................................................... 13 Section 3.02. Special Fund; Deposit of Tax Revenues ............................................ 13 Section 3.03. Transfer of Tax Revenues From Special Fund ................................. 14 Section 3.04. Investment of Moneys; Valuation of Investments ............................ 15 ARTICLE IV OTHER COVENANTS OF THE AGENCY ............................................. 15 Section 4.01. Punctual Payment; Extension of Payments ........................................ 15 Section 4.02. Limitation on Additional Indebtedness .............................................. 16 Section 4.03. Payment of Claims ................................................................................ 16 Section 4.04. Books and Accounts; Financial Statements ....................................... 16 Section 4.05. Protection of Security and Rights ....................................................... 16 -i- P6402-0001\770206v1.doc A-3 &402-0001\770206v1.doc * Payable semiannually on the fifth Business Day preceding each Interest Payment Date A-2 26402-000 1\770206v1.doc CONTINUING DISCLOSURE AGREEMENT Project Area No. 1, As Amended This Continuing Disclosure Agreement (the "Disclosure Agreement") is executed and delivered by the Paim Desert Redevelopment Agency (the "Agency") and BNY Western Trust Company, as Trustee (the "Trustee") and MuniFinancial, Inc. (the "Dissemination Agent") in connection with the issuance of $ * Paim Desert Financing Authority, Tax Allocation Refunding Revenue Bonds (Project Area No. 1 As Amended), 2004 Series A (the "Bonds"). The Bonds are being issued pursuant to an Indenture of Trust dated as of June 1, 2004, between the Paim Desert Financing Authority (the "Issuer") and the Trustee (the "Indenture"). The proceeds of the Bonds are being Ioaned by the Issuer to the Agency pursuant to a Loan Agreement (as defined in the Indenture). The parties agree as foliows: SECTION 1. Purpose of the Disclosure Agreement. This Disclosure Agreement is being executed and delivered by the parties for the benefit of the Owners of the Bonds and in order to assst the Participating Underwriter in complying with the Rule (defined below). The Agency acknowledges that the Issuer has undertaken no resporsibiIity with respect to any reports, notices or disclosures provided or required under thts Agreement, and has no Ilability to any person, including any Owner of Bonds, with respect to any such reports, notices or disclosures. SECTION 2. Definitions. In addition to the definitions set forth in the Indenture, which apply to any capitalized term used in this Disclosure Agreement unless otherwise defined in this Section, the foliowing capitalized terms shall have the foliowing meanirlgs: "Annual Report" shall mean any Annual Report provided by the Agency pursuant to, and as described in, Sections 3 and 4 of this Disclosure Agreement. "Disclosure Representative" shall mean the Executive Director of the Agency or his or her designee, or such other person as the Agency shall designate in writing to the Trustee and Dissemination Agent from time to time. "Dissemination Agent" shall mean MuniFinancial, Inc., acting in its capacity as Dissemination Agent hereunder, or any successor Dissemination Agent designated in writing by the Agency and which has filed with the Trustee a written acceptance of such designation. "Listed Events" shall mean any of the events Iisted in Section 5(a) of this Disclosure Agreement. "National Repository" shall mean any Nationally Recognized Municipal Securities lnformation Repository for purposes of the Rule. "Official Statement" shall mean the final Official Statement with respect to the Bonds. "Owners" shall mean the registered owners of the B�nds or, if the Bonds are registered in the name of a depository, the beneficial owners of the Bonds. "Participating Underwriter" shall mean the original underwriters of the Bonds required to comply with the Rule in connection with the offering of the Bonds. "Repository" shall mean each National Repository and each State Repository. "Rule" shall mean Rule 15c2-12(b)(5) adopted by the Securities and Exchange Commission under the Securities Exchange Act of 1934. "State Repository" shall mean any public or private repository or entity designated by the State as a state repository f�r the purpose of the Rule. As of the date of this Agreement, there is no State Repository. SECTION 3. Provision of Annual Reports. (a) The Agency shall, or upon written direction shall cause the Dissemination Agent to, not later than six months after the end of the Agency's Fiscal Year (which currently would be December 31 of each year), commencing with the report for the 2003-2004 Fiscal Year, provide to each Repository an Annual Report which is consistent with the requirements of Section 4 of this Disclosure Agreement. Not later than fifteen (15) Business Days prior to said date, the Agency shall provide the Annual Report to the Dissemination Agent and the Trustee. In each case, the Annual Report may be submitted as a single document or as separate documents comprising a package, and may cross-reference other information as provided in Section 4 of this Disclosure Agreement; provided that the audited financial statements of the Agency may be submitted separately from the balance of the Annual Report. The Agency shall provide a written certification with each Annual Report furnished to the Dissemination Agent and the Trustee to the effect that such Annual Report constitutes the Annual Report required to be furnished by the Agency hereunder. The Dissemination Agent and Trustee may conclusively rely upon such certification of the Agency. . (b) If the Dissemination Agent is unable to verify that an Annual Report has been provided to the Repositories by the date required in subsection (a), the Dissemination Agent shall send a notice to each National Repository or to the Municipal Securities Rulemaking Board and to the appropriate State Repository, if any, in substantially the form attached as Exhibit A. (c) The Dissemination Agent shall: (i) determine each year prior to the date for providing the Annual Report the name and address of each National Repository and each State Repository, if any; and (ii) if the Annual Report has been furnished to the Dissemination Agent, file a report with the Agency, the Issuer and the Trustee certifying that the Annual Report has been provided pursuant to this Disclosure Agreement, stating the date it was provided, and listing all the Repositories to which it was provided. SECTION 4. Content of Annual Reports. The Agency's Annual Report shall contain or incorporate by reference the following: - (i) the audited financial statements of the Agency, prepared in accordance with generally accepted accounting principles in effect from time to time. If the Agency's audited financial statements are not available by the time the Annual Report is required to be filed pursuant to Section 3(a), the Annual Report shall contain unaudited financial statements in a (d) If the Agency has determined that knowledge of the occurrence of a Listed Event is material, the Agency shall promptly notify the Dissemination Agent and the Trustee in writing. Such notice shall instruct the Dissemination Agent to report the occurrence pursuant to subsection (f) and shall instruct the Trustee to report the occurrence to Owners. (e) If in response to a request under subsection (b), the Agency determines that the Listed Event is not material, the Agency shall so notify the Dissemination Agent and the Trustee in writing and instruct the Dissemination Agent and the Trustee not to report the occurrence. (f) If the Dissemination Agent has been instructed by the Agency to report the occurrence of a Listed Event, the Dissemination Agent shall file a notice of such occurrence with the Municipal Securities Rulemaking Board and each State Repository, with a copy to the Agency. Notwithstanding the foregoing, notice of Listed Events described in subsections (a)(8) and (9) need not be given under this subsection any earlier than the notice (if any) of the underlying event is given to the Owners of affected Bonds pursuant to the Indenture. SECTION 6. Termination of Reporting Obligation. The obligations of the Agency, the Trustee and the Dissemination Agent under this Disclosure Agreement shall terminate upon the defeasance, prior redemption or payment in full of all of the Bonds; provided that the obligations of the Trustee and the Dissemination Agent hereunder shall also terminate upon the resignation or removal of such Trustee or Dissemination Agent. SECTION 7. Dissemination Agent. The Agency may, from time to time, appoint or engage a Dissemination Agent to assist it in carrying out its obligations under this Disclosure Agreement, and may discharge any such Dissemination Agent, with or without appointing a successor Dissemination Agent. The initial Dissemination Agent shall be MuniFinancial, Inc. The Dissemination Agent may resign its duties hereunder at any time upon written notice to the Agency. SECTION 8. Amendment. Notwithstanding any other provision of this Disclosure Agreement, the parties may amend this Disclosure Agreement (and the Trustee and the Dissemination Agent shall agree to any amendment so requested by the Agency provided that neither the Trustee nor the Dissemination Agent shall be obligated to enter into any such amendment that modifies or increases its duties or obligations hereunder) only if: (a) the amendment is made in connection with a change in circumstances that arises from a change in legal requirements, change in law, or change in the identity, nature, or status of the Agency, or type of business conducted; (b) this Disclosure Agreement, as amended,. would have complied with the requirements of the Rule at the time of sale of the Bonds, after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances; (c) the amendment does not materially impair the interests of Owners, as determined by parties unaffiliated with the Agency (such as, but without limitation, the Agency's bond counsel) or by Owners' consent pursuant to Section 7.01 of the Indenture; and (d) the annual financial information containing (if applicable) the amended operating data or financial information will explain, in narrative form, the reasons for the amendment and format similar to the financial statements contained in the Official Statement, and the audited financial statements shall be filed in the same manner as the Annual Report when they become available. (ii) An update of the tabular information set forth in the Official Statement under the captions "TAX REVENUES -- Schedule of Historical Tax Revenues" and "-- Top Fifteen Taxpayers." Any or all of the items listed above may be included by specific reference to other documents, including official statements of debt issues of the Agency or related public entities, which have been submitted to each of the Repositories or the Securities and Exchange Commission. If the document incorporated by reference is a final official statement, it must be available from the Municipal Securities Rulemaking Board. The Agency shall clearly identify each such other document so incorporated by reference. SECTION 5. Reporting of Material Events. (a) Pursuant to the provisions of this Section 5, the Agency shall give, or cause to be given, notice of the occurrence of any of the following events with respect to the Bonds, if material: (1) principal and interest payment delinquencies; (2) non-payment related defaults; (3) unscheduled draws on debt service reserves reflecting financial difficulties; (4) unscheduled draws on credit enhancements reflecting financial difficulties; (5) substitution of credit or liquidity providers, or their failure to perform; and (6) adverse tax opinions or events adversely affecting the tax-exempt status of the Bonds; (7) modifications to rights of security holders; (8) unscheduled bond calls; (9) defeasances; (10) release, substitution or sale of property securing repayment of the securities; and � (11) rating changes. (b) The Trustee shall, promptly upon obtaining actual knowledge of the occurrence of any of the Listed Events contact the Disclosure Representative, inform such person of the event, and request that the Agency promptly notify the Dissemination Agent in writing whether or not to report the event pursuant to subsection (f) and promptly notify the Trustee in writing whether or not to report the event to the Owners (unless notice to the Owners is required by either of the Indentures). For purposes of this Disclosure Agreement, "actual knowledge" of the occurrence of such Listed Events shall mean actual knowledge by the officer at the Trust Office of the Trustee with regular responsibility for the administration of the Indenture. (c) Whenever the Agency obtains knowledge of the occurrence of a Listed Event, whether because of a notice from the Trustee pursuant to subsection (b) or otherwise, the Agency shall as soon as possible determine if such event is material under applicable federal securities laws. Agreement. The Dissemination Agent shall not be liable under any circumstances for monetary damages to any person for any breach of this Agreement. SECTION 12. Beneficiaries. This Disclosure Agreement shall inure solely to the benefit of the Issuer, the Agency, the Trustee, the Dissemination Agent, the Participating Underwriter and Owners from time to time of the Bonds, and shall create no rights in any other person or entity. SECTION 13. Notices. Notices should be sent in writing to the following addresses. The following information may be conclusively relied upon until changed in writing. Agency: Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, California 92260 (760) 346-0611 (760) 346-0574 Fax Dissemination Agent: MuniFinancial, Inc. 27368 Via Industria, Suite 110 Temecula, California 92590 (909) 587-3500 (909) 587-3510 fax Trustee: BNY Western Trust Company 700 South Flower Street, Suite 500 Los Angeles, CA 90017-4104 (213) 630-6237 (213) 630-6215 Fax the "impact" (as that word is used in the letter from the staff of the Securities and Exchange Commission to the National Association of Bond Lawyers dated June 23, 1995) of the change in the type of operating data or financial information being provided. SECTION 9. Additional Information. Nothing in this Disclosure Agreement shall be deemed to prevent the Agency from disseminating any other information, using the means of dissemination set forth in this Disclosure Agreement or any other means of communication, or including any other information in any Annual Report or notice of occurrence of a Listed Event, in addition to that which is required by this Disclosure Agreement. If the Agency chooses to include any information in any Annual Report or notice of occurrence of a Listed Event, in addition to that which is specifically required by this Disclosure Agreement, the Agency shall have no obligation under this Agreement to update such information or include it in any future Annual Report or notice of occurrence of a Listed Event. SECTION 10. Default. In the event of a failure of the Agency tv comply with any provision of this Disclosure Agreement, the Trustee shall, at the written direction of any Participating Underwriter or the Owners of a majority in aggregate principal amount of Outstanding Bonds (but only to the extent funds have been provided to it or it has been otherwise indemnified to its satisfaction from any cost, liability, expense or additional charges of the Trustee whatsoever, including, without limitation, fees and expenses of its attorneys), or any Owner may, take such actions as may be necessary and appropriate, including seeking mandate or specific performance by court order, to cause the Agency, the Trustee or the Dissemination Agent, as the case may be, to comply with its obligations under this Disclosure Agreement; provided that any such action may be instituted only in the Federal or State Court located in the County of Los Angeles, State of California and no remedy other than specific performance may be sought or granted. A default under this Disclosure Agreement shall not be deemed an Event of Default under the Indenture or the Loan Agreements, and the sole remedy under this Disclosure Agreement in the event of any failure of the Agency, the Trustee or the Dissemination Agent to comply with this Disclosure Agreement shall be an action to compel performance. � SECTION 11. Duties, Immunities and Liabilities of Trustee and Dissemination Agent. The Dissemination Agent shall have only such duties as are specifically set forth in this Disclosure Agreement, and the Agency agrees to indemnify and save the Dissemination Agent and the Trustee, their officers, directors, employees and agents, harmless against any loss, expense and liabilities which it may incur arising out of or in the exercise or perFormance of its powers and duties hereunder, including the costs and expenses (including attorneys fees) of defending against any claim of liability, but excluding liabilities due to the Dissemination Agent's or Trustee's negligence or wilful misconduct. The Dissemination Agent may rely on and shall be protected in acting or refraining from acting upon any direction from the Issuer or an opinion of nationally recognized bond counsel. The Dissemination Agent and the Trustee shall be paid compensation by the Agency for its services provided hereunder in accordance with its schedule of fees as amended from time to time and all expenses, legal fees and advances made or incurred by the Dissemination Agent in the perFormance of its duties hereunder. The Dissemination Agent and the Trustee shall have no duty or obligation to review any information provided to them by the Agency hereunder and shall not be deemed to be acting in any fiduciary capacity for the Authority, the Agency, the Owners, or any other party. The obligations of the Agency under this Section shall survive resignation or removal of the Dissemination Agent and payment of the Bonds. No person shall have any right to commence any action against the Dissemination Agent seeking any remedy other than to compel specific performance of this SECTION 14. Counterparts. This Disclosure Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. PALM DESERT REDEVELOPMENT AGENCY By Executive Director BNY WESTERN TRUST COMPANY, as Trustee By Authorized Officer MUNIFINANCIAL, INC., as Dissemination Agent By Authorized Officer EXHIBIT A NOTICE OF FAILURE TO FILE ANNIlAL REPORT Name of Obligated Party: Name of Bond issue Date of Delivery: Palm Desert Redevelopment Agency (the "Agency") $ * Palm Desert Financing Authority, Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended), 2004 Series A , 2004 NOTICE IS HEREBY GIVEN that the Agency has not provided an Annual Report with respect to the above-named Bonds as required by Section 3 of the Continuing Disclosure Agreement dated as of June 1, 2004 between the Agency and BNY Western Trust Company. [The Agency anticipates that the Annual Report will be filed by .] Dated: MuniFinancial, Inc. on behalf of the Agency cc: Executive Director, Palm Desert Redevelopment Agency $ * PALM DESERT FINANCING AUTHORITY TAX ALLOCATION REFUNDING REVENUE BONDS (PROJECT AREA NO. 1, AS AMENDED) 2004 SERIES A BOND PURCHASE AGREEMENT 2004 Palm Desert Financing Authority 73-510 Fred Waring Drive Palm Desert, CA 92260-2578 Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, CA 92260-2578 Ladies and Gentlemen: Jones Hall Draft 5/12/04 The undersigned (the "Underwriter") offers to enter into this bond purchase agreement (this "Purchase Agreement") with the Paim Desert Financing Authority (the "Authority") and the Palm Desert Redevelopment Agency (the "Agency") which will be binding upon the Authority, the Agency and the Underwriter upon the acceptance hereof by the Authority and the Agency. This offer is made subject to its acceptance by the Authority and the Agency by execution of this Purchase Agreement and its delivery to the Underwriter on or before 11:59 p.m., California time, on the date hereof. All terms used herein and not otherwise defined shall have the respective meanings given to such terms in the Indenture (as hereinafter defined). Section 1. Purchase and Sale. Upon the terms and conditions and upon the basis of the representations, warranties and agreements hereinafter set forth, the Underwriter hereby agrees to purchase from the Authority for offering to the public, and the Authority hereby agrees to sell to the Underwriter for such purpose, all (but not less than all) of the $ principal amount of the Authority's Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended), 2004 Series A (the "Bonds"), at a purchase price of $ (being the aggregate principal amount thereof less an underwriter's discount of $ and plus a net issue premium of $ ). Section 2. Description of the Bonds. The Bonds will be issued under the provisions of the Marks -Roos Local Bond Pooling Act of 1985, constituting Article 4 of Chapter 5 of Division 7 of Title 1 (commencing with Section 6584) of the California Government Code (the "Bond Law"). The Bonds will be issued pursuant to an Indenture of Trust, dated as of June 1, 2004 (the "Indenture"), by and between the Authority and BNY Western Trust Company, as trustee thereunder (the "Trustee").The Bonds shall mature and shall be subject to redemption on the dates and in the amounts and shall bear interest at the rates set forth in the Indenture and the Official Statement dated the date hereof relating to the Bonds (which, together with all exhibits and appendices included therein or attached thereto and such amendments or supplements thereto which shall be approved by the Underwriter, is hereinafter called the "Official Statement"). The proceeds of the Bonds will be used by the Authority to make a loan (the "Loan") to the Agency pursuant to a Project Area No. 1, As Amended, Loan Agreement dated as of June 1, 2004 by and among the Authority, the Agency and the Trustee (the "Loan Agreement") for the benefit of the Agency's Project Area- No. 1, As Amended (the "Project Area"). The proceeds of the Loan will be used to (i) refund the indebtedness of the Agency under a Loan Agreement dated as of June 1, 1995 (the "1995 Loan Agreement"), and (ii) finance certain redevelopment activities within or of benefit to the Project Area and to pay costs of issuance of the Bonds. The refunding of the obligations under the 1995 Loan Agreement will effect a refunding of the Authority's Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended), Series 1995, of which remain outstanding (the "1995 Bonds"). The Bonds shall be secured by a pledge of and lien on all of the Tax Revenues (as defined in the Indenture) allocated to the Agency with respect to the Project Area. The scheduled payment of principal of and interest on the Bonds shall be insured by (the "Insurer") by the issuance of a bond insurance policy (the "Policy"). Section 3. Public Offering. The Underwriter agrees to make a bona fide public offering of all the Bonds initially at the public offering prices (or yields) set forth on Appendix A attached hereto and incorporated herein by reference. Subsequent to the initial public offering, the Underwriter reserves the right to change the public offering prices (or yields) as it deems necessary in connection with the marketing of the Bonds, provided that the Underwriter shall not change the interest rates set forth on Appendix A. The Bonds may be offered and sold to certain dealers at prices lower than such initial public offering prices. Section 4. Delivery of Official Statement. The Agency has delivered or caused to be delivered to the Underwriter prior to the execution of this Purchase Agreement, copies of the Preliminary Official Statement relating to the Bonds (the "Preliminary Official Statement"). Such Preliminary Official Statement is the o�cial statement deemed final by the Agency for purposes of Rule 15c2-12 under the Securities Exchange Act of 1934 (the "Rule") and approved for distribution by resolution of the Agency. The Agency hereby ratifies, approves and confirms the distribution of the Preliminary Official Statement in connection with the public offering and sale of the Bonds by the Underwriter. The Agency shall have executed and delivered to the Underwriter a certification to such effect in the form attached hereto as Appendix B and hereby ratifies the information contained therein. Within seven (7) business days from the date hereof, the Agency shall deliver to the Underwriter a final Official Statement, executed on behalf of the Agency by an authorized representative of the Agency and dated the date hereof, which shall include information permitted to be omitted by paragraph (b) (1) of the Rule and with such other amendments or supplements as shall have been approved by the Agency and the Underwriter. The Agency also agrees to delivery to the Underwriter, at the Agency's' sole cost and at such address as -2- the Underwriter shall specify, as many copies of the Official Statement as the Underwriter shall reasonably request as necessary to comply with paragraph (b) (4) of the Rule and with Rule C-32 and all other applicable rules of the Municipal Securities Rulemaking Board. The Agency shall undertake, pursuant to the Indenture and a Continuing Disclosure Agreement (the "Continuing Disclosure Agreement"), to provide certain annual financial information and notices of the occurrence of certain events, if material. The form of the Continuing Disclosure Agreement is appended to the Official Statement. Section 5. The Closing. At 8:00 a.m., California time, on , 2004, (the "Closing"), or at such other time or on such earlier or later business day as shall have been mutually agreed upon by the Agency and the Underwriter, the Authority and the Agency shall deliver (i) the Bonds in definitive form (one bond for each maturity) for the Underwriter to the Trustee at the Closing or to The Depository Trust Company ("DTC") in New York, New York, or such other location as may be specified by the Underwriter, with CUSIP identification numbers thereon, in fully registered form and registered in the name of Cede & Co., and (ii) the closing documents hereinafter mentioned at the offices of Richards, Watson & Gershon, A Professional Corporation , Bond Counsel (the "Bond Counsel") in Los Angeles, California, or another place to be mutually agreed upon by the Agency and the Underwriter. The Underwriter will accept such delivery and pay the purchase price of the Bonds as set forth in Section 1 hereof by federal funds wire payable to the order of the Trustee on behalf of the Agency. This payment and delivery, together with the delivery of the aforementioned documents, is herein called the "Closing." Section 6. Agency Representations, Warranties and Covenants. The Agency represents, warrants and covenants to the Underwriter that: (a) Due Organization and Existence of Agency. The Agency is a public body corporate and politic, organized and existing under the laws of the State, including the Community Redevelopment Law of the State, constituting Part 1 of Division 24 of the Health and Safety Code (the "Redevelopment Law"), with full right, power and authority to execute, deliver and perform its obligations under this Purchase Agreement, the Continuing Disclosure Agreement, the Bonds and the Indenture (collectively, the "Agency Documents") and to carry out and consummate the transactions contemplated by the Agency Documents and the Official Statement. (b) Due Authorization and Approval. By all necessary official action of the Agency, the Agency has duly authorized and approved the execution and delivery of, and the performance by the Agency of the obligations contained in, the Agency Documents and as of the date hereof, such authorizations and approvals are in full force and effect and have not been amended, modified or rescinded. When executed and delivered, the Agency Documents will constitute the legally valid and binding obligations of the Agency enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors' rights generally. The Agency has complied, and will at the Closing be in compliance in all respects, with the terms of the Agency Documents. The Agency has duly authorized and approved the Preliminary Official Statement and the Official Statement. -3- (c) Official Statement Accurate and Complete. The Preliminary Official Statement was as of its date, and the final Official Statement will be, and at alt times subsequent to the date of the final Official Statement up to and including the Closing will be, true and correct in alt material respects, and the Preliminary Official Statement contains and the final Official Statement will contain, and up to and including the Closing will contain, no misstatement of any material fact and do not, and up to and including the Closing wilt not, omit any statement necessary to make the statements contained therein, in the Iight of the circumstances in which such statements were made, not misteading. (d) Underwriter's Consent to Amendments and Supplements to Official Statement. The Agency covenants with the Underwriter that during the period of 25 days after the end of the "underwriting period" (as defined in the Rule), if an event occurs, of which the Agency has knowledge, which might or would cause the information contained in the Official Statement, as then supplemented or amended, to contain an untrue statement of a material fact or to omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Agency shall notify the Underwriter, and if, in the opinion af the Underwriter, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the Agency shall cooperate with the Underwriter in the preparation of an amendment or supplement to the Official Statement in a form and in a manner approved by the Underwriter, and all printing expenses thereby incurred shall be paid for by the Agency. The Agency will advise the Underwriter promptly of the institution of any proceedings known to it by any governmental agency prohibiting or otherwise affecting the use of the Official Statement in connection with the offering, sale or distribution of the Bonds. (e) No Breach or Default. As of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Official Statement, the Agency is not and will not be in breach of or in defautt under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Agency is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or event of default under any such instrument; and, as of such times, except as disclosed in the Official Statement, the authorization, execution and delivery of the Agency Documents and the Official Statement and compliance with the provisions of each of such agreements or instruments do not and will not conflict with or constitute a breach of or default under any appticable constitutional provision, law or administrative rule or regutation of the State or the United States, or any applicable judgment, decree, ticense, permit, trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Agency (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound, nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or -4- properties or under the terms of any such law, regulation or instrument, except as may be provided by the Agency Documents. � (fj No Litigation. As of the time of acceptance hereof and the Closing, except as disclosed in the Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, pending or threatened (i) in any way questioning the corporate existence of the Agency or the titles of the officers of the Agency to their respective offices; (ii) affecting, contesting or seeking to prohibit, restrain or enjoin the issuance or delivery of any of the Bonds, or.the payment or collection of any amounts pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity of the Agency Documents, the power of the Agency to execute and deliver the Agency Documents or the Official Statement or the consummation of the transactions contemplated thereby, or contesting the exclusion of the interest on the Bonds from taxation or contesting the powers of the Agency and its authority to pledge the Tax Revenues; (iii) which may result in any material adverse change relating to the Agency; or (iv) contesting the completeness or accuracy of the Preliminary Official Statement or the final Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the final Official Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and there is no basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iv) of this sentence. (g) Preliminary Official Statement. For purposes of the Rule, the Agency has heretofore deemed final the Preliminary Official Statement prior to its use and distribution by the Underwriter, except for the information specifically permitted to be omitted by paragraph (b) (1) of the Rule. The Agency has never failed to comply timely with any filing requirements under the Rule. (h) Excess Surplus. The Agency's Low and Moderate Income Housing Fund established pursuant to Section 33334.3 of the Law does not, on the date hereof, contain an "excess surplus" (within the meaning of Section 33334.12 of the Law) that would cause the Agency to be subject to the sanctions contained in Section 33334.12(e) (1) of the Law. (i) Arbitrage Certificate. The Agency has not been notified of any listing or proposed listing by the Internal Revenue Service to the effect that it is a bond issuer whose arbitrage certificates may not be relied upon. (j) No Required Consenfs. All approvals, consents and orders of any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to the execution and delivery by the Agency of the Agency Documents and the Official Statement have been obtained or will be obtained prior to the Closing (provided the Agency shall not be responsible for state blue sky filings). -5- (k) Certificates of the Agency. Any certificate signed by an authorized officer of the Agency and delivered to the Underwriter shall be deemed a representation and warranty of the Agency to the Underwriter as to the statements made therein. (1) Tax Exemption. The Agency covenants that it will not take any action which would cause interest on the Bonds to be subject to federal income taxation or California personal income taxes (other than to the extent the Bonds will be subject to federal income taxation as described under the caption "Tax Matters" in the Official Statement). (m) Compliance with Rule. There has been no instance in which the Agency has failed to comply in all respects with any undertakings with regard to the Rule. Section 7. Authority Representations, Warranties and Covenants. The Authority represents, warrants and covenants to the Underwriter that: (a) Due Organization and Existence of Authority. The Authority is a joint exercise of powers authority, duly organized and existing, and authorized to transact business and exercise of powers under and pursuant to the provisions of the laws of the State of California and the joint exercise of powers agreement pursuant to which the Authority was created and has, and on Closing Date for each respective series of Bonds will have, full legal right, power and authority to enter into this Purchase Agreement, and to carry out and to consummate the transactions contemplated by this Purchase Agreement and the Official Statement. (b) Due Authorization and Approval. By all necessary official action of the Authority, the Authority has duly authorized and approved the execution and delivery of, and performance by the Authority of the obligations contained in, this Purchase Agreement and as of the date hereof, such authorizations and approvals are in full force and effect and have not been amended, modified or rescinded. When executed and delivered, this Purchase Agreement will constitute the legally valid and binding obligation of the Authority enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors' rights generally. The Authority has complied, and will at the Closing be in compliance in all respects, with the terms of this Purchase Agreement. (c) Official Statement Accurate and Complete. The information relating to the Authority contained in the Preliminary Official Statement and the final Official Statement as amended or supplemented, is correct in all material respects and does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make. the statements contained therein, in the light of the circumstances under which they were made, not misleading. (d) Purchase and Sale of Bonds. The Bonds will be purchased and sold by the Authority pursuant to the Mark -Roos Local Bond Pooling Act of 1985, -6- constituting Article 4 of Chapter 5, Division 7 of Title 1(commencing with Section 6584) of the California Government Code (the "JPA Act"). � {e) Compliance with Law and Joint Exercise of Powers Agreement. The Authority has complied, and will on the Closing Date for each respective series of Bonds be in compliance, in all respects, with the. JPA Act and all other applicable laws of the State of California and the joint exercise of powers agreement pursuant to which the Authority was created. (� No Breach or Default. As of the time of acceptance hereof and as of the time of the Closing, except as otherwise disclosed in the Official Statement, the Authority is not and will not be in breach of or in default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority is a party or is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or event of default under any such instrument; and, as of such times, except as disclosed in the Official Statement, the authorization, execution and delivery of this Purchase Agreement and compliance with the provisions hereof do not and will not conflict with or constitute a breach of or default under any applicable constitutional provision, law or administrative rule or regulation of the State or the United States, or any applicable judgment, decree, license, permit, trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other instrument to which the Authority (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound, nor will any such authorization, execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except as may be provided by this Purchase Agreement. (g) No Litigation. As of the time of acceptance hereof and the Closing, except as disclosed in the Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, pending or threatened (i) in any way questioning the corporate existence of the Authority or the titles of the officers of the Authority to their respective offices; (ii) seeking to restrain or enjoin the sale of the Bonds or in any way contesting or affecting the validity of this Purchase Agreement, the power of the Authority to execute and deliver this Purchase Agreement or the consummation of the transactions contemplated hereby; or (iii) which may result in any material adverse change relating to the Authority, and there is no basis for any action, suit, proceeding, inquiry or investigation of the nature described in clauses (i) through (iii) of this sentence. (h) No Required Consents. All approvals, consents and orders of any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to the execution and delivery by the Authority of this Purchase Agreement have been obtained. -7- (i) Certificates of the Authority. Any certificate signed by an authorized officer of the Authority and delivered to the Underwriter shall be deemed a representation and warranty of the Authority to the Underwriter as to the statements made therein. Section 8. Closing Conditions. The Underwriter has entered into this Purchase Agreement in reliance upon the representations, warranties and covenants herein and the performance by the Agency of their respective obligations hereunder, both as of the date hereof and as of the date of the Closing. Accordingly, the Underwriter's obligations under this Purchase Agreement to purchase, accept delivery of, and pay for the Bonds on the Closing Date for each respective series of Bonds are subject to the performance by the Agency and the Authority of their respective obligations hereunder at or prior to the Closing. The Underwriter's obligations under this Purchase Agreement to purchase and pay for the Bonds shall be subject to the following additional conditions: (a) Bring -Down Representation. The representations, warranties and covenants of the Authority and the Agency contained herein shall be true, complete and correct at the date hereof and at the time of the Closing, as if made on the date of the Closing. (b) Executed Agreements and Performance Thereunder. At the time of the Closing (i) the Agency Documents shall be in full force and effect, and shall not have been amended, modified or supplemented except with the written consent of the Underwriter and (ii) there shall be in full force and effect such resolutions of the Agency and the Authority (the "Resolutions") as, in the opinion of Bond Counsel, shall be necessary in connection with the transactions contemplated by this Purchase Agreement, the Official Statement and the Agency Documents. (c) Closing Documents. At or prior to the Closing, the Underwriter shall receive each of the documents identified in Section 9, such documents shall be in full force and effect and shall not have been amended, modified or supplemented, except as therein permitted or as may have been agreed to in writing by the Underwriter. Section 9. Closing Documents. In addition to the other conditions to the Underwriter's obligations under this Purchase Agreement to purchase and pay for the Bonds, at or before the Closing of each series of Bonds the Underwriter shall receive each of the following documents as to each respective series, provided the Underwriter may in its sole discretion waive one or more of the conditions imposed by this Purchase Agreement for the protection of the Underwriter and proceed with the Closing. (a) Bond Counsel Opinion. An approving opinion of Bond Counsel dated the date of the Closing and substantially in the form appended to the Official Statement, together with a letter from such counsel, dated the date of the Closing and addressed to the Underwriter, to the effect that the foregoing opinion may be relied upon by the Underwriter to the same extent as if such opinion were addressed to it. -8- (b) Supplemental Opinion. A supplemental opinion or opinions of Bond Counsel addressed to the Underwriter, in form and substance acceptable to the Underwriter, and dated the date of the Closing substantially to the foliowing effect: (i) This Purchase Agreement has been duly authorized, executed and delivered by the Agency and the Authority, as applicable, and constitute the valid, legal and binding agreements of the Agency and the Authority, as applicable, enforceable in accordance with its terms. (ii) The statements contained in the Official Statement (including the cover page and the Appendices thereto), insofar as such statements purport to summarize certain provisions of the Bonds, the Indenture or federal tax Iaw, accurately summarize the information presented therein; provided that Bond Counsel need not express any opinion with respect to any financial or statistical information contained therein. (iii) The Agency's obUgations under the Indenture are exempt from registration under the Securities Act of 1933, as amended, and the Indenture is exempt from quaEification pursuant to the Trust Indenture Act of 1939, as amended. (c) Agency Counsel Opinion. An opinion of Counsel to the Agency, dated the date of the Closing and addressed to the Underwriter, in form and substance acceptable to the Underwriter substantially to the foliowing effect: (i) The Agency is a public body corporate and politic duly organized and vatidly existing under the laws of the State of Calif�rnia. (ii) The resolution of the Agency approving and authorizing the execution and delivery of the Agency Documents and approving the Offtcial Statement (the "Agency Resolution") was duiy adopted at a meeting of the Agency which was called and held pursuant to taw and with all public notice required by Iaw and at which a quorum was present and acting throughout, and the Agency Resolution is in fuJi force and effect and has not been modified, amended or rescinded. (ili) Except as otherwise disclosed in the Officiai Statement and to the best knowledge of such counsel after due inquiry, there is no litigation, proceeding, action, suit, or investigation at iaw or in equity before or by any court, governmental agency or body, pending or threatened against the Agency, chalienging the creation, organization or existence of the Agency or the right or title of any member or officer of the Agency to hold his or her respective office or exercise or perform the powers and duties pertaining thereto, or the validity of the Agency Documents or seeking to restrain or enjoin the issuance, saie or repayment of the Bonds or in any way contesting or affecting the validity of the Agency Documents or contesting the authority of the Agency to enter into or perform its obiigations under any of the Agency Documents, or under which a determination adverse to the Agency wouid have a materiaI adverse effect upon the financial condition or the revenues of -9- the Agency, or which, in any manner, questions the right of the Agency to use the Tax Revenues for repayment of the Bonds or affects in any manner the right or ability of the Agency to collect or piedge the Tax Revenues (iv) The Agency Documents have each been duly authorized, executed and delivered by the Agency, and the Agency Documents constitute the valid and binding legal obligations of the Agency enforceable in accordance with their respective terms except as such enforceability may be Iimited or otherwise affected by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws or genraI principles of equity limiting or otherwise affecting the enforcement of creditors' rights, whether now existing or hereafter enacted. (v) The execution and delivery by the Agency of, and the performance by the Agency of its obligations under, the Bonds, the lndenture and ths Purchase Agreement do not conflict with, violate or constitute a default under any provision of any Iaw, court order or decree or any contract, instrument or agreement to which the Agency is a party or by which it is bound. (vi) The Agency has obtained all authorizations, approvals, consents or other orders of the State of California or any other governmental authority or agency within the State of California having jurisdiction over the Agency required for the valid authorization, issuance and delivery by the Agency of the Bonds and the execution and delivery of the Agency Documents. (vii) Except as disclosed in the Official Statement, the Agency has not entered into any contract or arrangement of any kind which might give rise to any senior or parity lien or encumbrance on the Tax Revenues pledged pursuant to, or subject to the lien of, the Indenture. (d) Authority Counsel Opinion. An opinion of Counsel to the Authority, dated the date of the Closing and addressed to the Underwriter, in form and substance acceptable to the Underwriter substantially to the following effect: (1) The Authority is a joint exercise of powers agency duly organized and validly existing under the taws of the State of California. (ii) The resolution of the Authority approving and authorizing the execution and delivery of this Purchase Agreement (the "Authority Resolution") was duly adopted at a meeting of the Authority which was called and held pursuant to Iaw and with all public notice required by Iaw and at which a quorum was present and acting throughout, and the Authority Resolution is in fuU force and effect and has not been modified, amended or rescinded. (iii) Except as otherwise disclosed in the Official Statement and to the best knowledge of such counsel after due inquiry, there is no itigation, - 10- proceeding, action, suit, or investigation at law or in equity before or by any court, governmental agency or body, pending or threatened against the Authority, challenging the creation, organization or existence of the Authority or the right or title of any member or officer. of the Authority to hold his or her respective office or exercise or perform the powers and duties pertaining thereto, or the validity of this Purchase Agreement or seeking to restrain or enjoin the sale of the Bonds or in any way contesting or affecting the validity of this Purchase Agreement or contesting the authority of the Authority to enter into or perform its obligations under this Purchase Agreement, or under which a determination adverse to the Authority would have a material adverse effect upon the consummation of the transactions contemplated hereby. (iv) This Purchase Agreement has each been duly authorized, executed and delivered by the Authority, and this Purchase Agreement constitutes the valid and binding legal obligation of the Authority enforceable in accordance with its terms except as such enforceability may be limited or otherwise affected by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws or general principles of equity limiting or otherwise affecting the enforcement of creditors' rights, whether now existing or hereafter enacted. (v) The execution and delivery by the Authority of, and the performance by the Authority of its obligations under, this Purchase Agreement do not conflict with, violate or constitute a default under any provision of any law, court order or decree or any contract, instrument or agreement to which the Authority is a party or by which it is bound. (vi) The Authority has obtained all authorizations, approvals, consents or other orders of the State of California or any other governmental authority or agency within the State of California having jurisdiction over the Authority required for the execution and delivery of this Purchase Agreement. (e) Trustee Counsel Opinion. The opinion of counsel to the Trustee, dated the date of the Closing, addressed to the Underwriter, to the effect that: (i) The Trustee is a banking corporation, duly organized and validly existing under the laws of the State of California, having full power to enter into, accept and administer the trust created under the Indenture. (ii) The Indenture has been duly authorized, executed and delivered by the Trustee and the Indenture constitutes the legal, valid and binding obligation of the Trustee enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights generally and by the application of equitable principles, if equitable remedies are sought. (iii) No consent, approval, authorization or other action by any governmental or regulatory authority having jurisdiction over the Trustee that has not been obtained is or will be required for the execution and delivery of -11- the Indenture by the Trustee or the consummation by the Trustee of the transactions contemplated by the lndenture. (f) The opinion of Jones Hall, A Professional Law Corporation, San Francisco, California, Disclosure Counsel, dated the Closing date, addressed to the Agency, and to the Underwriter, to the effect that based upon an examination which they have made, and without having undertaken to determine independently the accuracy or completeness of the statements contained in the Official Statement, they have no reason to believe that the Official Statement (other than financial statements and other statistical and financial data and information relating to The Depository Trust Company, New York, New York, and its book -entry system contained therein and incorporated therein by reference, and information regarding the municipal bond insurance policy and the issuer thereof, as to which no view need be expressed) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (g) Agency Certificate. A certificate of the Agency, dated the date of the Closing, signed on behalf of the Agency by the Executive Director or other duly authorized officer of the Agency to the effect that: (i) The representations, warranties and covenants of the Agency contained herein are true and correct in all material respects on and as of the date of the Closing as if made on the date of the Closing and the Agency has complied with all of the terms and conditions of this Purchase Agreement required to be complied with by the Agency at or prior to the date of the Closing. (ii) No event affecting the Agency has occurred since the date of the Official Statement which has not been disclosed therein or in any supplement or amendment thereto which event should be disclosed in the Official Statement in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (iii) The Agency Documents are -in full force and effect and none has been amended in any respect, except as approved in writing by the Underwriter. (iv) Except as otherwise disclosed in the Official Statement and to the best knowledge of such signing officer after due inquiry, there is no litigation, proceeding, action, suit, or investigation at law or in equity before or by any court, governmental agency or body, pending or threatened against the Agency, challenging the creation, organization or existence of the Agency, or the validity of the Agency Documents or seeking to restrain or enjoin the repayment of the Bonds or in any way contesting or affecting the validity of the Agency Documents or contesting the authority of the Agency to enter into or perform its obligations under any of the Agency Documents, or under which a determination adverse to the Agency would have a material adverse effect upon the financial condition or the revenues of the Agency, or -12- which, in any manner, questions the right of the Agency to use the Tax Revenues for repayment of the Bonds or affects in any manner the right or ability of the Agency to collect or piedge the Tax Revenues. (h) Authority Certificate. A certificate of the Authority, dated the date of the Closing, signed on behalf of the Authority by the Executive Director or other duly authorized officer of the Authority to the effect that: (i) The Authority is a joint exercise of powers agency, duly organized and existing under the laws of the State, including the JPA Act. (ii) The resolution of the Authority approving and authorizing the execution and delivery of this Purchase Agreement (the "Authority Resolution") was duly adopted at a meeting of the Authority which was called and held pursuant to Iaw and with all public notice required by Iaw and at which a quorum was present and acting throughout and the Authority Resolution is in full force and effect and has not been modified, amended or rescinded. (111) The representations, warranties and covenants of the Authority contairied herein are true and correct in all material respects on and as of the date of the Closing as if made on the date of the Closing and the Authority has complied with all of the terms and conditions of this Purchase Agreement required to be complied with by the Authority at or prior to the date of the Closing. (iv) There is no litigation, proceeding, action, suit, or investigation at Iaw or in equity before or by any court, governmental Authority or body, pending or, to the best of such signing officer's knowledge after due iriquiry, threatened against the Authority, challenging the creation, organization or existence of the Authority, or the validity of this Purchase Agreement or contesting the authority of the Authority to enter into or perform its obligations under this Purchase Agreement. (i) Trustee's Certificate. A certificate of the Trustee, dated the date of Closing, in form and substance acceptable to counsel for the Underwriter, to the foliowing effect: (1) The Trustee is duly organized and existing as a banking corporation in good standing under the laws of the State of California, having the full power and authority to accept the trusts and to enter into and perform its duties under the Indenture. (ii) The Trustee is duly authorized to enter into the Indenture. (iii) Compliance with the provisions on the Trustee's part contained in the Indenturo will not conflict with or constitute a breach of or default under any judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the Trustee is a party or is otherwise - 13- subject, or, to the best knowledge of the Trustee, any material law or administrative regulation to which the Trustee is subject, as a result of which the Trustee's ability to perform its obligations under the Indenture would be impaired, nor will any such compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties or assets held by the Trustee pursuant to the lien created by the Indenture under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as provided by the Indenture. (iv) There is no action, suit, proceeding or investigation, at law or in equity, before or by any court or governmental agency, public board or body that has been served upon the Trustee or to the best knowledge after due inquiry, threatened against the Trustee which in the reasonable judgment of the Trustee would affect the existence of the Trustee or in any way contesting or affecting the validity or enforceability of the Indenture or contesting the powers of the Trustee or its authority to enter into and perform its obligation under the Indenture. (j) A certificate of Rosenow Spevacek Group, Inc., dated the date of Closing, signed by an authorized representative �hereof, to the effect that that the Tax Revenues coverage test for the issuance of additional bonds secured by Tax Revenues, as required in connection with the Prior Bonds, has been met. (k) Documents. An original executed copy of each of the Agency Documents, the Official Statement and a certified copy of each of the Resolutions, except that it shall be sufficient to provide a copy of the Bonds marked "specimen. (1) Municipal Bond lnsurance Policy. A copy of the Policy, as duly executed and delivered by the Insurer. � (m) lnsurer Counsel Opinion. The opinion of counsel to the Insurer, in form and substance acceptable to the Underwriter. (n) lnsurer Certificate. A certificate of the Insurer, in form and substance acceptable to the Underwriter. (o) Ratings. Evidence that the Bonds have been rated " " by and " " by . � (p) Fisca! Consultant Consent and Certificafe. The consent of Rosenow Spevacek Group, Inc. to the use of their report entitled "Fiscal Consultant ReporY' dated , 2004, in the Preliminary Official Statement and the Official Statement and their affirmation of the accuracy of the data in the tables in the Official Statement which reference such fiscal consultant report. -14- (q) Additional Documents. Such additional certificates, instruments and other documents as Bond Counsel, the Agency or the Underwriter may reasonably deem necessary. If the Agency or the Authority shall be unable to satisfy the conditions contained in this Purchase Agreement, or if the obligations of the Underwriter shall be terminated for any reason permitted by this Purchase Agreement, this Purchase Agreement shall terminate and neither the Underwriter nor the Agency or the Authority shall be under further obligation hereunder. Section 10. Termination Events. The Underwriter has entered into this Purchase Agreement in reliance upon the representations, warranties and agreements of the Agency and the Authority contained herein and upon the accuracy of the statements to be contained in the documents, opinions, and instruments to be delivered at the Closing. Accordingly, the Underwriter's obligations under this Purchase Agreement to purchase, accept delivery of, and pay for the Bonds on the Closing Date for each respective series of Bonds is subject to the performance by the Agency and the Authority of their respective obligations hereunder at or prior to the Closing. The Underwriter shall have the right to terminate this Purchase Agreement, without liability therefor, by notification to the Agency and the Authority if at any time between the date hereof and prior to the Closing: (a) any event shall occur which causes any statement contained in the Official Statement to be materially misleading or results in a failure of the Official Statement to state a material fact necessary to make the statements in the Official Statement, in the light of the circumstances under which they were made, not misleading; or (b) the marketability of the Bonds or the market price thereof, in the opinion of the Underwriter, has been materially adversely affected by an amendment to the Constitution of the United States or by any legislation in or by the Congress of the United States or by the State, or the amendment of legislation pending as of the date of this Purchase Agreement in the Congress of the United States, or the recommendation to Congress or endorsement for passage (by press release, other form of notice or otherwise) of legislation by the President of the United States, the Treasury Department of the United States, the Internal Revenue Service or the Chairman or ranking minority member of the Committee on Finance of the United States Senate or the Committee on Ways and Means of the United States House of Representatives, or the proposal for consideration of legislation by either such Committee or by any member thereof, or the presentment of legislation for consideration as an option by either such Committee, or by the staff of the Joint Committee on Taxation of the Congress of the United States, or the favorable reporting for passage of legislation to either House of the Congress of the United States by a Committee of such House to which such legislation has been referred for consideration, or any decision of any federal or State court or any ruling or regulation (final, temporary or proposed) or official statement on behalf of the United States Treasury Department, the Internal Revenue Service or other federal or State authority materially adversely affecting the federal or State tax status of the Agency, or the interest on bonds or notes or obligations of the general character of the Bonds; or -15- (c) any IegisIation, ordinance, rule or regulation shaH be introduced in, or be enacted by any governmental body, department or agency of the State, or a decision by any court of competent jurisdiction within the State or any court of the United States shall be rendered which, in the reasonable opinion of the Underwriter, materially adversely affects the market price of the Bonds; or (d) IegisIation shall be enacted by the Congress of the United States, or a decision by a court of the United States shall be rendered, or a stop order, ruling, regutation or official statement by, or on behatf of, the Securities and Exchange Commission or any other governmental agency having jurisdiction of the subject matter shall be issued or made to the effect that the issuance, offering or sale of obligations of the general character of the Bonds, or the issuance, offering or sale of the Bonds, including all underlying obligations, as contemplated hereby or by the Official Statement, is in violation or would be in violation of, or that obligations of the general character of the Bonds, or the Bonds, are not exempt from registration under, any provision of the federal securities laws, including the Securities Act of 1933, as amended and as then in effect, or that the Indenture needs to be qualified under the Trust Indenture Act of 1939, as amended and as then in effect; or (e) additional material restrictions including without limitation those relating to the extenson of credit by, or the charge to the net capital requirements of, not in force as of the date hereof shall have been imposed upon trading in securities generaily by any governmental authority or by any national securities exchange which restrictions materiaHy adversely affect the Underwriter's ability to trade the Bonds; or (0 a general banking moratorium shall have been established by federal or State authorities; or (g) the United States has become engaged in hostilities which have resulted in a declaration of war or a national emergency or there has occurred any other outbreak of hostilities or a national or international calamity or crisis, or there has occurred any escalation of existing hostilities, calamity or crisis, financial or otherwise, the effect of which on the financial markets of the United States being such as, in the reasonable opinion of the Underwriter, would affect materially and adversely the ability of the Underwriter to market the Bonds or enf�rce contracts for sale of the Bonds; or (h) any rating of the Bonds shall have been downgraded, suspended or withdrawn by a national rating service, which, in the Underwriter's reasonable opinion, materially adversely affects the marketability or market price of the Bonds; or (i) the commencement of any action, suit or proceeding described in Section 6(1) hereof which, in the reasonable judgment of the Underwriter, materially adversely affects the market price of the Bonds; or (j) there shall be in force a general suspension of trading on the New York Stock Exchange, or minimum or maximum prices for trading shall have been - 16- fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on the New York Stock Exchange, whether by virtue of determination by that Exchange or by order of the Securities and Exchange Commission of the United States or any other governmental authority having jurisdiction; or � (k) there shall have been any materially adverse change in the affairs of the Authority or the Agency which in the Underwriter's reasonable judgment materially adversely affects the market for the Bonds. Section 11. Expenses. The Underwriter shall be under no obligation to pay and the Agency shall pay or cause to be paid the expenses incident to the performance of the obligations of the Agency and the Authority hereunder including but not limited to (a) the costs of the preparation and printing, or other reproduction (for distribution on or prior to the date hereof) of the Agency Documents and the cost of preparing, printing, issuing and delivering the definitive Bonds, (b) the fees and disbursements of any counsel, financial advisors, accountants or other experts or consultants retained by the Agency; (c) the fees and disbursements of Bond Counsel; (d) the cost of printing the Preliminary Official Statement and any supplements and amendments thereto and the cost of printing the Official Statement, including the requisite number of copies thereof for distribution by the Underwriter; (e) charges of rating agencies for the rating of the Bonds; (f) the premium payable to the Insurer in consideration of the issuance .by the Insurer of the Policy; and (g) the fees and disbursements of the Trustee, including but not limited to, fee and disbursements of its counsel, travel and other expenses. The Underwriter shall pay all expenses incurred by it in connection with the public offering and distribution of the Bonds, travel, and miscellaneous fees of the California Debt and Investment Advisory Commission, the fees of Underwriter's counsel and the CUSIP Service Bureau charge for the assignment of CUSIP numbers to the Bonds. Such amounts will be billed separately by the Underwriter and will be payable from the proceeds of the Bonds. . Section 12. Notice. Any notice or other communication to be given to the Agency and the Authority under this Purchase Agreement may be given by delivering the same in writing to such entity at the address set forth above. Any notice or other communication to be given to the Underwriter under this Purchase Agreement may be given by delivering the same in writing to: Citigroup Global Markets Inc. 350 California Street, 21St Floor San Francisco, California 94104 Section 13. Entire Agreement. This Purchase Agreement, when accepted by the Agency and the Authority, shall constitute the entire agreement between the Agency, the Authority and the Underwriter and is made solely for the benefit of the Agency, the Authority and the Underwriter (including the successors or assigns of any Underwriter). No other person shall acquire or have any right hereunder by virtue hereof, except as provided herein. All the Agency's and the Authority's representations, warranties and covenants in -17- this Purchase Agreement shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of the Underwriter.' Section 14. Counterparts. This Purchase Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. Section 15. Severability. In case any one or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof. Section 16. State of California Law Governs. The validity, interpretation and performance of this Purchase Agreement shall be governed by the laws of the State. -18- Section 17. No Assignment. The rights and obligations created by this Purchase Agreement shall not be subject to assignment by the Underwriter, the Authority or the Agency without the prior written consent of the other parties hereto. CITIGROUP GLOBAL MARKETS INC. � Vice President Accepted as of the date first stated above: PALM DESERT FINANCING AUTHORITY � Executive Director PALM DESERT REDEVELOPMENT AGENCY � Executive Director -19- APPENDIX A Maturity Date Principal Interest (Aprill) Amount Rate Yield A-1 APPENDIX B RULE 15c2-12 CERTIFICATE The undersigned hereby certifies and represents to Citigroup Global Markets Inc. (the "Underwriter") that he is a duly appointed and acting officer of the Palm Desert Redevelopment Agency (the "Agency"), and as such is to execute and deliver this Certificate and further hereby certify and reconfirm on behalf of the Agency to the Underwriter as follows: (1) This Certificate is delivered to enable the Underwriter to comply with Securities and Exchange Commission Rule 15c2- 12 under the Securities Exchange Act of 1934 (the "Rule") in connection with the offering and sale of the Palm Desert Financing Authority, Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended) 2004 Series A(the "Bonds"). (2) In connection with the offering and sale of the Bonds, there has been prepared a Preliminary Official Statement, setting forth information concerning the Bonds and the issuer of the Bonds (the "Preliminary Official Statement"). (3) As used herein, "Permitted Omissions" shall mean the offering price(s), interest rate(s), selling compensation, aggregate principal amount, principal amount per maturity, delivery dates, ratings and other terms of the Bonds depending on such matters and the identity of the underwriter(s), all with respect to the Bonds. (4) The Preliminary Official Statement is, except for the Permitted Omissions, deemed final within the meaning of the Rule and has been, and the information therein is accurate and complete except for the Permitted Omissions. (5) If, at any time prior to the execution of the final contract of purchase, any event occurs as a result of which the Preliminary Official Statement might include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Agency shall promptly notify the underwriter thereof. IN WITNESS WHEREOF, we have hereunto set our hands as of the day of , 2004. PALM DESERT REDEVELOPMENT AGENCY � Executive Director �: Jones Hall Draft 5/12104 PRELIMINARY OFFICIAL STATEMENT DATED , 2004 NEW ISSUE FULL BOOK ENTRY In the opinion of Richards, Watson Ratings: Moody's: _ Fitch: Insured (See "RATINGS" herein) ESCROW DEPOSIT AND TRUST AGREEMENT (Project Area No. 1, As Amended) by and among the PALM DESERT FINANCING AUTHORITY and the PALM DESERT REDEVELOPMENT AGENCY and BNY WESTERN TRUST COMPANY as Escrow Agent Dated as ofJune 1, 2004 ESCROW DEPOSIT AND TRUST AGREEMENT (Project Area No. l, As Amended) This Agreement is made and entered into as of June l, 2004, by and among the Palm Desert Financing Authority (the "Authority"), a joint powers authority duly organized and existing pursuant to the laws of the State of California, the Palm Desert Redevelopment Agency (the "Agency"), a public body corporate and politic organized and existing pursuant to the laws of the State of California, and BNY Western Trust Company, a state banking corporation duly organized and existing under the laws of the State of California, as Escrow Agent (the "Escrow Agent"). RECITALS: A. The Authority has heretofore issued its Palm Desert Financing Authority Tax Allocation Revenue Bonds (Project Area No. 1, As Amended), Series 1995, of which $22,450,000 remain outstanding (the "Prior Bonds"), secured by revenues consisting of amounts payable to the Authority by the Agency pursuant to the Prior Loan Agreement (as hereinafter defined). B. The Agency and the Authority have determined that, by refunding the Prior Bonds, costs to the Agency and the Authority will be reduced. C. In accordance with the Prior Indenture (as hereinafter defined), if the Authority will pay or cause to be paid, or will have made provisions to pay, or there will have been set aside in trust funds to pay, to the holders of Prior Bonds, the principal and interest and premium, if any, to become due thereon, then with respect to such Prior Bonds the lien of the Prior Indenture will thereupon cease, terminate and become void and be discharged and satisfied. D. Pursuant to the Loan Agreement (as hereinafter defined), proceeds derived from a loan (the "Loan") by the Authority to the Agency will be deposited, together with certain other available moneys, in escrow with the Escrow Agent and applied to the purchase of noncallable direct obligations of, or noncallable obligations guaranteed by, the United States of America. E. In order to provide for the proper and timely application of the moneys deposited in said escrow to the payment of the Prior Bonds, it is necessary to enter into this Agreement. NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth, the parties hereto agree as follows: Section l. Definitions. As used herein, the following terms shall have the following meanings: "A�encv" means the Palm Desert Redevelopment Agency, a public body corporate and politic organized under the laws of the State of California, and any successor P6402-0001\770350v1.doc -1- thereto. "Authority" means the Palm Desert Financing Authority, a joint powers authority duly organized and existing under the laws of the State of California. "Bonds" means the Palm Desert Financing Authority Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended), 2004 Series A. "Code" means the Internal Revenue Code of 1986, as amended. "Escrow Agent" means BNY Western Trust Company and its successors and assigns, and any other corporation or association that may at any time be substituted in its place as provided in Section 15. "Escrow Fund" means the Project Area No. 1, As Amended, 2004 Escrow Fund established and held by the Escrow Agent pursuant to Section 3. "Escrow Securities" means the Investment Securities set forth in Schedule B hereto. "Investment Securities" means noncallable direct obligations of the United States of America, or bonds or other obligations which are noncallable and for which the full faith and credit of the United States of America are pledged for the payment of principal and interest, or tax exempt obligations of a state or a political subdivision thereof which have been defeased under irrevocable escrow instructions with non -callable obligations for which the full faith and credit of the United States of America are pledged for the payment of principal and interest and which are rated "Aaa" by Moody's Investors Service and "AAA" by Standard & Poor's Ratings Group, to mature or be withdrawable, as the case may be, not later than the time when needed for the payment or redemption of the Prior Bonds in order to discharge the pledge and lien securing the Prior Bonds. "Loan" means the loan made by the Authority to the Agency under and pursuant to the Loan Agreement. "Loan Agreement" means the Project Area No. 1, As Amended Loan Agreement dated as of June 1, 2004, by and among the Authority, the Agency and the Trustee. "Prior Bonds" means the outstanding Palm Desert Financing Authority, Tax Allocation Revenue Bonds (Project Area No. 1, As Amended), Series 1995. "Prior Bond Trustee" means BNY Western Trust Company, as successor trustee under the Prior Indenture. "Prior Indenture" means the Indenture of Trust dated as of June 1, 1995 by and between the Authority and Bank of America National Trust and Savings Association as trustee. P 6402-0001 \7703 5 0v 1. do c -2- "Prior Loan A�reement" means the Loan Agreement dated as of June l, 1995 by and among the Agency, the Authority and Bank of America National Trust and Savings Association as trustee, as amended from time to time. "Refundin� Reauirements" means an amount sufficient to pay all installments of interest and the redemption price (principal plus premium, if any) of the Prior Bonds on their earliest available optional redemption date, as set forth in Schedule A attached hereto. "Trustee" means BNY Western Trust Company and its successors and assigns, and any other corporation or association that may at any time be substituted in its place. Section 2. Appointment of Escrow A�ent. The Agency hereby appoints BNY Western Trust Company as Escrow Agent under this Agreement for the benefit of the holders of the Prior Bonds. The Escrow Agent hereby accepts the duties and obligations of Escrow Agent under this Agreement and agrees that the irrevocable instructions to the Escrow Agent herein provided are in a form satisfactory to it. The applicable and necessary provisions of the Prior Indenture, including particularly the redemption provisions set forth in Article V thereof, are incorporated herein by reference. Reference herein to, or citation herein of, any provisions of the Prior Indenture shall be deemed to incorporate the same as a part hereof in the same manner and with the same effect as if the same were fully set forth herein. Section 3. Escrow Fund. There is hereby created and established with the Escrow Agent a special and irrevocable trust fund designated the "Project Area No. 1, As Amended, 2004 Escrow Fund" (the "Escrow Fund") to be held by the Escrow Agent separate and apart from all other funds of the Agency, the Authority or the Escrow Agent and used only for the purposes and in the manner provided in this Agreement. Section 4. Denosit to Escrow Fund. The Agency herewith deposits, or causes to be deposited, (a) the sum of $ , representing a portion of the proceeds of the Bonds, and (b) the sum of $ , representing excess moneys from certain funds and accounts held by the Prior Bonds Trustee, with the Escrow Agent in the Escrow Fund, to be held in irrevocable trust by the Escrow Agent and to be applied solely as provided in this Escrow Agreement. Section 5. Investment of Escrow Fund. The Escrow Agent acknowledges receipt of the moneys described in Section 4 and agrees immediately to invest $ of such moneys in the Escrow Securities, to deposit such Escrow Securities in the Escrow Fund and to deposit the remaining $ in the Escrow Fund to hold uninvested. The Escrow Agent is hereby authorized and empowered to deposit uninvested monies held hereunder from time to time in demand deposit accounts, without payment for interest thereon as provided hereunder, established at commercial banks that are corporate affiliates of the Escrow Agent. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, at the written request of the Agency and upon compliance with the conditions hereinafter set forth, the Escrow Agent shall have the power to sell, transfer, request the redemption of or otherwise dispose of some or all of the Escrow Securities in the Escrow Fund and to substitute Investment Securities. The foregoing may be effected only if: (a) the P6402-0001\770350v1.doc -3- substitution of Investment Securities for the substituted Escrow Securities occurs simultaneously; (b) the amounts of and dates on which the anticipated transfers from the Escrow Fund to the Prior Bond Trustee for the payment of the principal of, premium and/or interest on the Prior Bonds will not be diminished or postponed thereby, as shown in the certification (described below) of an independent certified public accountant; (c) the Escrow Agent shall receive the unqualified opinion of nationally recognized bond counsel to the effect that (i) such disposition and substitution would not cause any of the Prior Bonds or the Bonds to be an "arbitrage bond" within the meaning of Section 148 of the Code and the regulations thereunder in effect on the date of such disposition and substitution and applicable to obligations issued on the respective issue dates of the Prior Bonds and the Bonds, such disposition or substitution would not be inconsistent with the Agency's tax covenants contained in the Loan Agreement and that the conditions of this Section as to the disposition and substitution have been satisfied and (ii) the Agency has the right and power to effect such disposition and substitution; and (d) the Escrow Agent shall receive from an independent certified public accountant a certification that, immediately after such transaction, the principal of and interest on the Investment Securities in the Escrow Fund will, together with other moneys available for such purpose, be sufficient to pay the Refunding Requirements. Any cash received from the disposition and substitution of Escrow Securities pursuant to this Section to the extent that, as shown in such certification, such cash will not be required, in accordance with the Prior Indenture and this Agreement, at any time for the payment when due as provided in Section 6, shall be transferred to the Agency. Section 6. Reinvestment; Payment of Refunding Requirements. As the principal of the Escrow Securities shall mature and be paid, and the investment income and earnings thereon are paid, the Escrow Agent shall reinvest such moneys in accordance with the written instructions of the Agency and, no later than each interest or principal payment date for the Prior Bonds, transfer from the Escrow Fund to the Prior Bonds Trustee an amount sufficient to pay the Refunding Requirements. Such amounts shall be applied by the Prior Bonds Trustee to the payment of the Refunding Requirements for the equal and ratable benefit of the holders of the Prior Bonds. Section 7. Verification. The Agency has caused schedules to be prepared relating to the sufficiency of the anticipated receipts from the Escrow Securities to pay the Refunding Requirements. The Agency herewith furnishes the Escrow Agent with the report of Certified Public Accountants, verifying the mathematical accuracy of the computations contained in such schedules. Section 8. Compliance with Agreement. The Agency hereby directs and the Escrow Agent hereby agrees that the Escrow Agent will take all the actions required to be taken by it hereunder, including the timely transfer of moneys to the Prior Bonds Trustee, in order to effectuate this Agreement. The liability of the Escrow Agent for the payment of the Refunding Requirements, pursuant to this Section and, in its capacity as Prior Bonds Trustee, the Prior Indenture, shall be limited to the application, in accordance with this Agreement, of the principal amount of the Escrow Securities and the interest earnings thereon available for such purposes in the Escrow Fund. Section 9. Tax Covenant. Notwithstanding any other provision of this P6402-00011770350v1.doc -4- Agreement, the Agency hereby covenants that no part of the proceeds of the Loan or of the moneys or funds held by the Escrow Agent hereunder shall be used, and that it shall not direct the Escrow Agent to use any of such moneys or funds at any time, directly or indirectly, in a manner that would cause any of the Bonds to be an"arbitrage bond" under Section 148 of the Code and the regulations of the Treasury Department thereunder proposed or in effect at the time of such use and applicable to obligations issued on the date of issuance of the Bonds. Neither the Agency nor the Escrow Agent shall, except as permitted by Section 5, sell, transfer or otherwise dispose of the Escrow Securities, except that the Escrow Agent may effectuate the transfer of such Escrow Securities to a successor escrow agent in accordance with the provisions of Section 15 relating to the transfer of rights and property to successor escrow agents. Section 10. Notices. The Authority will instruct the Prior Bonds Trustee to mail to the registered owners of the Prior Bonds, as soon as practicable, a notice substantially in the form set forth in Exhibit A attached hereto. The Authority shall cause notice of redemption of the callable Prior Bonds to be given as required by the Prior Indenture. Section 11. Defeasance of Prior Bonds. The Agency and the Authority represent that, concurrently with the initial deposit of the Escrow Securities pursuant to Section 5, the Prior Bonds will no longer be deemed to be outstanding and unpaid within the meaning and with the effect expressed in the Prior Indenture. Section 12. Nature of Lien. The trust hereby created shall be irrevocable and the holders of the Prior Bonds shall have an express lien on all moneys and Escrow Securities in the Escrow Fund, including the interest earnings thereon, until paid out, used and applied in accordance with this Agreement. Section 13. Amendments. This Agreement is made pursuant to and in furtherance of the Prior Indenture and the Loan Agreement and for the benefit of the Agency, the Authority and the holders from time to time of the Prior Bonds and it shall not be repealed, revoked, altered, amended or supplemented without the written consent of all such holders and the written consent of the Escrow Agent, the Authority and the Agency; provided, however, that the Agency, the Authority and the Escrow Agent may, without the consent of, or notice to, such holders, enter into such agreement supplemental to this Agreement as shall not materially adversely affect the rights of such holders and as shall not be inconsistent with the terms and provisions of this Agreement, for any one or more of the following purposes: (a) To cure any ambiguity or formal defect or omission in this Agreement; (b) To grant to, or confer upon, the Escrow Agent for the benefit of the holders of the Prior Bonds, any additional rights, remedies, powers or authority that may lawfully be granted to, or conferred upon, such holders or the Escrow Agent; and (c) to transfer to the Escrow Agent and make subject to this Agreement additional funds, securities or properties. The Escrow Agent shall be entitled to rely exclusively upon an unqualified opinion of nationally recognized bond counsel with respect to compliance with this Section, P6402-0001\770350v1.doc -5- including the extent, if any, to which any change, modification or addition affects the rights of the holders of the Prior Bonds, or that any instrument executed hereunder complies with the conditions and provisions of this Section. Section 14. Compensation of Escrow Agent. In consideration of the services rendered by the Escrow Agent under this Agreement, the Agency agrees to and shall pay to the Escrow Agent its proper fees and expenses in accordance with the agreement therefor reached by the Escrow Agent and the Agency, including all reasonable expenses, charges, counsel fees and other disbursements incurred by it or by its attorneys, agents and employees in and about the performance of their powers and duties hereunder, from any moneys of the Agency lawfully available therefor and the Escrow Agent shall have no lien whatsoever upon any of the moneys or Escrow Securities in the Escrow Fund for the payment of such proper fees and expenses. Section 15. Resignation or Removal of Escrow Agent; Appointment of Successor. The Escrow Agent at the time acting hereunder may at any time resign and be discharged from the trusts hereby created by giving written notice to the Agency, the Authority and the Prior Bonds Trustee, specifying the date when such resignation will take effect, but no such resignation shall take effect unless a successor Escrow Agent shall have been appointed by the holders of the Prior Bonds or by the Agency as hereinafter provided and such successor Escrow Agent shall have accepted such appointment, in which event such resignation shall take effect immediately upon the appointment and acceptance of a successor Escrow Agent. The Escrow Agent may be removed at any time by an instrument or concurrent instruments in writing, delivered to the Escrow Agent and to the Agency and the Authority and signed by the holders of a majority in principal amount of each series of the Prior Bonds. In the event the Escrow Agent hereunder shall resign or be removed, or be dissolved, or shall be in the course of dissolution or liquidation, or otherwise become incapable of acting hereunder, or in case the Escrow Agent shall be taken under the control of any public officer or officers, or of a receiver appointed by a court, a successor Escrow Agent may be appointed by the holders of a majority in principal amount of the Prior Bonds, by an instrument or concurrent instruments in writing, signed by such holders, or by their attorneys in fact, duly authorized in writing; provided, nevertheless, that in any such event, the Agency shall appoint a temporary Escrow Agent to fill such vacancy until a successor Escrow Agent shall be appointed by the holders of a majority in principal amount of each series of the Prior Bonds, and any such temporary Escrow Agent so appointed by the Agency shall immediately and without further act be superseded by the Escrow Agent so appointed by such holders. The Agency shall give written notice of any such appointment made by it to the Authority and the Prior Bonds Trustee. In the event that no appointment of a successor Escrow Agent or a temporary successor Escrow Agent shall have been made by such holders or the Agency pursuant to the foregoing provisions of this Section within 60 days after written notice of the removal or resignation of the Escrow Agent has been given to the Agency, the holder of any of the Prior Bonds or any retiring Escrow Agent may apply to any court of competent jurisdiction for the appointment of a successor Escrow Agent, and such court may thereupon, after such notice, if any, as it shall deem proper, appoint a successor Escrow Agent. P6402-0001\770350v1.doc -6- No successor Escrow Agent shall be appointed unless such successor Escrow Agent shall be a corporation with trust powers organized under the banking laws of the United States or any state, and shall have at the time of appointment capital and surplus of not less than $50,000,000. Every successor Escrow Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Agency, an instrument in writing accepting such appointment hereunder and thereupon such successor Escrow Agent without any further act, deed or conveyance, shall become fully vested with all the rights, immunities, powers, trusts, duties and obligations of its predecessor; but such predecessor shall, nevertheless, on the written request of such successor Escrow Agent or the Agency execute and deliver an instrument transferring to such successor Escrow Agent all the estates, properties, rights, powers and trusts of such predecessor hereunder; and every predecessor Escrow Agent shall deliver all securities and moneys held by it to its successor. Should any transfer, assignment or instrument in writing from the Agency be required by any successor Escrow Agent for more fully and certainly vesting in such successor Escrow Agent the estates, rights, powers and duties hereby vested or intended to be vested in the predecessor Escrow Agent, any such transfer, assignment and instrument in writing shall, on request, be executed, acknowledged and delivered by the Agency. Any corporation into which the Escrow Agent, or any successor to it in the trusts created by this Agreement, may be merged or converted or with which it or any successor to it may be consolidated, or any corporation resulting from any merger, conversion, consolidation or tax-free reorganization to which the Escrow Agent or any successor to it shall be a party, shall, if it rrieets the qualifications set forth in the fifth paragraph of this Section, and if it is otherwise satisfactory to the Agency, be the successor Escrow Agent under this Agreement without the execution or filing of any paper or any other act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. Section 16. Limitation of Powers and Duties. The Escrow Agent shall have no power or duty to invest any funds held under this Agreement except as provided in Sections 5 and 6. The Escrow Agent shall have no power or duty to transfer or otherwise dispose of the moneys held hereunder except as provided in this Agreement. Section 17. Indemnifcation. To the extent permitted by law, the Agency hereby assumes liability for, and hereby agrees (whether or not any of the transactions contemplated hereby are consummated) to indemnify, protect, save and keep harmless the Escrow Agent and its respective successors, assigns, agents, employees and servants, from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements (including reasonable legal fees and disbursements) of whatsoever kind and nature which may be imposed on, incurred by, or asserted against, the Escrow Agent at any time (whether or not also indemnified against the same by the Agency or any other person under any other agreement or instrument, but without double indemnity) in any way relating to or arising out of the execution, delivery and performance of this Agreement, the establishment hereunder of the Escrow Fund, the acceptance of the funds and securities deposited therein, the purchase of any securities to be purchased pursuant thereto, the retention of such securities or the proceeds P6402-0001\770350v1.doc -7- thereof and any payment, transfer or other application of moneys or securities by the Escrow Agent in accordance with the provisions of this Agreement; provided, however, that the Agency shall not be required to indemnify the Escrow Agent against the Escrow Agent's own negligence or willful misconduct or the negligence or willful misconduct of the Escrow Agent's employees. In no event shall the Agency or the Escrow Agent be liable to any person by reason of the transactions contemplated hereby other than to each other as set forth in this Section. The indemnities contained in this Section shall survive the termination of this Agreement and removal or resignation of the Escrow Agent. Section 18. Limitation of Liability. The Escrow Agent and its respective successors, assigns, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Agreement, the establishment of the Escrow Fund, the acceptance of the moneys or any securities deposited therein, the purchase of the securities to be purchased pursuant hereto, the retention of such securities or the proceeds thereof, the sufficiency of the securities or any uninvested moneys held hereunder to accomplish the redemption of the Prior Bonds, or any payment, transfer or other application of moneys or securities by the Escrow Agent in accordance with the provisions of this Agreement or by reason of any non -negligent act, non -negligent omission or non- negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the Recitals of this Agreement shall be taken as the statements of the Agency or the Authority, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the securities to be purchased pursuant hereto and any uninvested moneys to accomplish the redemption of the Prior Bonds pursuant to the Prior Indenture or to the validity of this Agreement as to the Agency or the Authority and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Agreement except for its own negligence, willful misconduct or default, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the Agency, and in reliance upon the written opinion or advice of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Agreement, such matter (except the matters set forth herein as specifically requiring a certificate of a nationally recognized firm of independent certified public accountants or an opinion of nationally recognized bond counsel) may be deemed to be conclusively established by a written certification of the Agency. Whenever the Escrow Agent shall deem it necessary or desirable that a matter specifically requiring a certificate of a nationally recognized firm of independent certified public accountants or an opinion of nationally recognized bond counsel be proved or established prior to taking, suffering, or omitting any such action, such matter may be established only by such a certificate or such an opinion. No provision of this Agreement shall require the Escrow Agent to 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. Section 19. Termination. This Agreement shall terminate when moneys have P6402-00011770350v1.doc -8- been transferred pursuant to Section 8 to the Prior Bonds Trustee sufficient to pay all Prior Bonds. Upon such termination, all moneys remaining in the Escrow Fund after payment of any amounts due the Escrow Agent hereunder shall be released to the Agency. Section 20. Governin� Law. This Agreement shall be governed by the law of the State of California. Section 21. Severabilitv. If any one or more of the covenants or agreements provided in this Agreement on the part of the Agency, the Authority or the Escrow Agent to be performed should be determined by a court of competent jurisdiction to be contrary to law, such covenant or agreement shall be deemed and construed to be severable from the remaining covenants and agreements herein contained and shall in no way affect the validity of the remaining provisions of this Agreement. All the covenants, promises and agreements in this Agreement contained by or on behalf of the Agency, the Authority or the Escrow Agent shall bind and inure to the benefit of their respective successors and assigns, whether so expressed or not. Section 22. Countemarts. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as one original and shall constitute and be but one and the same instrument. P6402-0001 \770350v l .doc -9- IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by their duly authorized officers and appointed or elected officials as of the date first -above written. PALM DESERT FINANCING AUTHORITY By Chief Administrative Officer PALM DESERT REDEVELOPMENT AGENCY By Executive Director BNY WESTERN TRUST COMPANY, as Escrow Agent By Authorized Officer P6402-000 1\770350v1 .doc -10- SCHEDULE A REFUNDING REQUIREMENTS P6402-0001\770350v1.doc -11- ESCROW SECURITIES SCHEDULE B P6402-0001\770350v1.doc -12- EXHIBIT A PALM DESERT FINANCING AUTHORITY Notice to the Holders of Palm Desert Financing Authority Tax Allocation Revenue Bonds (Project Area No. 1, As Amended) Series 1995 CU5Il' No. NOTICE IS HEREBY GIVEN on behalf of the Palm Desert Financing Authority (the "Authority"), that pursuant to Section 10.03 of the Indenture of Trust dated as of June l, 1995 (the "Indenture") pertaining to the above-captioned Bonds, the lien of such Indenture has been discharged through the irrevocable deposit in escrow of cash and Federal Securities. DATED this _ day of , 2004 BNY WESTERN TRUST COMPANY, as Escrow Agent P6402-0001\770350v1.doc A-1 TABLE OF CONTENTS Page Section 1. Definitions 1 Section 2. Appointment of Escrow Agent 3 Section 3. Escrow Fund 3 Section 4. Deposit to Escrow Fund 3 Section 5. Investment of Escrow Fund 3 Section 6. Reinvestment; Payment of Refunding Requirements 4 Section 7. Verification 4 Section 8. Compliance with Agreement 4 Section 9. Tax Covenant 4 Section 10. Notices 5 Section 11. Defeasance of Prior Bonds 5 Section 12. Nature of Lien 5 Section 13. Amendments 5 Section 14. Compensation of Escrow Agent 6 Section 15. Resignation or Removal of Escrow Agent; Appointment of Successor 6 Section 16. Limitation of Powers and Duties 7 Section 17. Indemnification 7 Section 18. Limitation of Liability 8 Section 19. Termination 8 Section 20. Governing Law 9 Section 21. Severability 9 Section 22. Counterparts 9 SCHEDULE A REFUNDING REQUIREMENTS 11 SCHEDULE B ESCROW SECURITIES 12 EXHIBIT A Notice to the Holders A-1 P6402-0001\770350v1.doc -1- Indenture of Trust with reference to $ Paim Desert Financing Authority Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended) 2004 Series A P6402-0001\770030v2 .doc TABLE OF CONTENTS Pa�e Recitals........................................................ 1 ARTICLE I DEFINITIONS; AUTHORIZATION A1�TD PURPOSE OF BONDS; EQUAL SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Section 1.02. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Section 1.03. Authorization and Purpose of Bonds . . . . . . . . . . . . . . . . . . . 11 Section 1.04. Equal Security . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . 12 ARTICLE II ISSUANCE OF BONDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Section 2.01. Authorization of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Section 2.02. Terms of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Section 2.03. Redemption of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 Section 2.04. Form of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5 Section 2.05. Execution of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Section 2.06. Transfer of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 � Section 2.07. Exchange of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 � Section 2.08. Temporary Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 � Section 2.09. Registration Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 2.10. Bonds Mutilated, Lost, Destroyed or Stolen . . . . . . . . . . . . . . 18 ARTICLE III DEPOSIT AND APPLICATION OF PROCEEDS OF BONDS; ISSUANCE OF BONDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 s Section 3.01. Issuance of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Section 3.02. Loan Fund; Application of Proceeds of Sale of Bonds ...... 19 Section 3.03. Validity of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 ARTICLE IV REVENUES; FLOW OF FUNDS . . . . . . . . . . . . . . . . . . . . . . . . 19 Section 4.01. Pledge of Revenues; Assignment of Rights . . . . . . . . . . . . . . 19 Section 4.02. Receipt, Deposit and Application of Revenues . . . . . . . . . . . . 2 0 � P6402-0001\770030v2.doc Section 4.03. Investments 21 Section 4.04. Valuation and Disposition of Investments 2 2 ARTICLE V COVENANTS OF THE AUTHORITY 2 2 Section 5.01. Punctual Payment 21 Section 5.02. Extension of Payment of Bonds 2 2 Section 5.03. Against Encumbrances 2 3 Section 5.04. Power to Issue Bonds and Make Pledge and Assignment 2 3 Section 5.05. Accounting Records and Financial Statements 21 Section 5.06. No Additional Indebtedness 23 Section 5.07. Tax Covenants 2 3 Section 5.08. Loan Agreement 21 Section 5.09. Further Assurances 2 6 ARTICLE VI THE TRUSTEE 2 6 Section 6.01. Appointment of Trustee 2 6 Section 6.02. Acceptance of Trusts 2 6 Section 6.03. Fees, Charges and Expenses of Trustee 2 9 Section 6.04. Notice to Owners of Default 3 o Section 6.05. Intervention by Trustee 30 Section 6.06. Removal of Trustee 30 Section 6.07. Resignation by Trustee 31 Section 6.08. Appointment of Successor Trustee 31 Section 6.09. Merger or Consolidation 31 Section 6.10. Concerning any Successor Trustee 31 Section 6.11. Appointment of Co -Trustee 31 Section 6.12. Indemnification; Limited Liability of Trustee 3 2 ARTICLE VII MODIFICATION AND AMENDMENT OF THE INDENTURE 3 3 Section 7.01. Amendment Hereof 3 3 Section 7.02. Effect of Supplemental Indenture 3 4 Section 7.03. Endorsement or Replacement of Bonds After Amendment 31 ii P6402-0001\770030v2.doc ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES . . . . . . . . . . . . . . . 34 Section 8.01. Events of Default . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . 3 4 Section 8.02. Remedies Upon Event of Default . . . . . . . . . . . . . . . . . . . . . 3 5 Section $.03. Application of Revenues and Other Funds After Default ..... 3 6 Section 8.04. Power of Trustee to Control Proceedings . . . . . . . . . . . . . . . . 3 � Section 8.05. Appointment of Receivers . . . . . . . . . . . . . . . . . . . . . . . . . . 3 7 Section 8.06. Non-Waiver . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . 3 8 Section 8.07. Limitation on Rights and Remedies of Owners ............ 3 8 Section 8.08. Termination of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 3 8 ARTICLE IX BOND INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 9 Section 9.01. Payments Under the Insurance Policy . . . � . . . . . . . . . . . . . . . 3 9 Section 9.02. Notices . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . 41 Section 9.03. Control of Remedies upon Default . . . . . . . . . . . . . . . . . . . . 41 Section 9.04. Suspension or Termination of Rights of Insurer ........... 41 ARTICLE X BOOK-ENTRY SYSTEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2 SECTION 10.01 Book-Entry System; Limited Obligation of Authority .... 4 2 SECTION 10.02 Representation Letter . . . . . : . . . . . . . . . . . . . . . . . . . . . 4 3 SECTION 10.03 Transfers Outside Book-Entry System . . . . . . . . . . . . . . . 4 3 SECTION 10.04 Payments to the Nominee . . . . . . . . . . . . . . . . . . . . . . . . 4 3 SECTION 10.05 Initial Depository and Nominee . . . . . . . . . . . . . . . . . . . . 4 3 ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3 Section 11.01. Limited Liability of Authority . : . . . . . . . . . . . . . . . . . . . . . 4 3 Section 11.02. Benefits of Indenture Limited to Parties . . . . . . . . . . . . . . . . 44 Section 11.03. Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 4 Section 11.04. Successor Is Deemed Included in All References to Predecessor 4 5 Section 11.05. Content of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5 Section 11.06. Execution of Documents by Owners . . . . . . . . . . . . . . . . . . 4 6 Section 11.07. Disqualified Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 6 Section 11.08. Waiver of Personal Liability . . . . . . . . . . . . . . . . . . . . . . . . 4 6 iii P6402-0001\770030v2.doc Section 11.09. Partial Invalidity 47 Section 11.10. Destruction of Cancelled Bonds 47 Section 11.11. Funds and Accounts 47 Section 11.12. Payment on Business Days 4 7 Section 11.13. Notices 4 g Section 11.14. Unclaimed Moneys 48 Section 11.15. Governing Law 4 9 EXHIBIT A [FORM OF BOND] 1 iv P6402-0001\770030v2.doc Indenture of Trust This Indenture of Trust (this "Indenture") is made and entered into as of June l, 2004, by and between the Palm Desert Financing Authority, a joint powers authority duly organized and validly existing under the laws of the State of California (the "Authority") and BNY Western Trust Company, a state banking corporation duly organized and validly existing under the laws of the State of California, having a corporate trust office in Los Angeles, California, and being qualified to accept and administer the trusts hereby created (the "Trustee"). Recitals: A. The Palm Desert Redevelopment Agency is a redevelopment agency, a public body, corporate and politic, duly created, established and authorized to transact business and exercise its powers, all under and pursuant to the Redevelopment Law, and the powers of the Agency include the power to borrow money for any of its corporate purposes. B. A Redevelopment Plan for the original territory of the Project Area has been duly approved and adopted by the City by Ordinance No. 80. C. The Amendment to the Redevelopment Plan, adding territory to the Project Area, was approved and adopted by the City by Ordinance No. 275, and all requirements of law for and precedent to the adoption and approval of the Redevelopment Plan, as amended, have been duly complied with. . D. The Authority is authorized to borrow money for the purpose of making loans to the Agency to provide financing for public capital improvements of the Agency. E. For the purpose of aiding in the financing for Project Area No. 1, As Amended, of the Agency, the Authority has made a loan (the "Loan") to the Agency under and pursuant to the Project Area No. l, As Amended, Loan Agreement dated as of June l, 2004 (the "Loan Agreement") by and among the Authority, the Agency and the Trustee. F. To provide the moneys required to make the Loan under the Loan Agreement, the Authority has determined to issue its Palm Desert Financing Authority Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended), 2004 Series A, in the aggregate principal amount of $ � (the "Bonds") pursuant to and secured by this Indenture in the manner provided herein. �6402-0001\770030v2.doc G. 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 to secure the payment of the principal thereof, premium, if any, and interest thereon, the Authority has authorized the execution and delivery of this Indenture. NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the payment of the principal of, premium, if any, and interest on 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 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 hereby covenants and agrees with the Trustee, for the benefit of the Owners of the Bonds, as follows: ARTICLE I DEFINITIONS; AUTHORIZATION AND PURPOSE OF BONDS; EQUAL SECURITY Section 1.01. Definitions. The following terms shall for all purposes of this Indenture and of any Supplemental Indenture of the Bonds and of any certificate, opinion, request or other documents herein mentioned have the meanings ascribed thereby. In addition, the terms defined in Section 1.01 of the Loan Agreement and not otherwise defined in this Section 1.01 shall have the meanings ascribed thereby in the Loan Agreement. "Act" means Articles 1 through 4 (commencing with Section 6500) of chapter 5, Division 7, Title 1 of the Government Code of the State, as in existence on the Closing Date or as thereafter amended from time to time. "Added Territorv" means the territory added to the Project Area pursuant to the Amendment. "Agency" means the Palm Desert Redevelopment Agency, a redevelopment agency, a public body corporate and politic, duly created, established and authorized to transact business and exercise its powers all under and pursuant to the Redevelopment Law, and any successor to its duties and functions. "Amendment" means, collectively, the Amendments to the Redevelopment Plan approved and adopted by the City Council by Ordinance Nos. 275 and 324. 26402-0001\770030v2.doc "Authoritv" means the Palm Desert Financing Authority, a joint powers authority duly organized and existing under the Joint Exercise of Powers Agreement, dated January 26, 1989, by and between the City and the Agency, and under the laws of the State. "Authoritv Commission" means the governing body of the Authority. "Bond Counsel" means Richards, Watson & Gershon, A Professional Corporation, Los Angeles, California, or a firm of attorneys of favorable reputation in the field of municipal bond law. "Bond Law" means the Marks-Roos Local Bond Pooling Act of 1985, being Article 4 of the Act (commencing with Section 6584), as in existence on the Closing Date or as thereafter amended from time to time. "Bond Year" means each twelve-month period extending from Apri12 in one calendar year to April 1 of the succeeding calendar year, both dates inclusive, except that the first Bond Year shall begin on the Closing Date and extend to and include April 1, 2004. "Bonds" means the Palm Desert Financing Authority Tax Allocation Refunding Revenue Bonds (Project Area No. l, As Amended), 2004 Series A. "Business Dav" means any day other than a Saturday, Sunday or other day on which the New York Stock Exchange or banks are authorized or obligated by law or executive order to close in New York, New York, San Fxancisco, California, Los Angeles, California or any city in which the Trust Office is located. "Certificate" means a certificate in writing signed by any officer of the designated public entity, duly authorized by its legislative body for that purpose. "Citv" means the City of Palm Desert, a general law city and municipal corporation duly organized and validly existing under the laws of the State. "Closin� Date" means the date of delivery of the Bonds to the Underwriters as the original purchasers. "Code" means the Internal Revenue Code bf 1986, as amended. "Countv" means the County of Riverside. "Defeasance Obli�ations" means (a) any obligations described in paragraph A or B of the definition of "Permitted Investments" set forth in this Section or (b) collateralized investment agreements, provided that �6402-0001\770030v2.doC (i) the counterparty to any such agreement shall be a domestic bank or foreign bank with a senior unsecured debt rating of AAA by S&P and Aaa by Moody=s; a domestic or Canadian life insurance company with a claims -paying or financial strength rating of AAA and Aaa by S&P and Moody=s, respectively; a wholly -owned and guaranteed financial institution subsidiary of one of the above mentioned institutions; an insurance holding company, rated AAA and Aaa, by S&P and Moody=s respectively; or a domestic financial guaranty insurance company or an affiliate of a domestic financial guaranty insurance company, whose obligations are fully guaranteed by an affiliate or the parent company which has a rating of AAA and Aaa by S&P and Moody=s, respectively; (ii) any such agreement shall be collateralized by securities issued or guaranteed by the United States government, the Government National Mortgage Association, the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association, or municipal, corporate, asset -backed and mortgage -backed obligations rated AAA and Aaa by S&P and Moody=s, respectively; the counterparty must grant to the Trustee or the agent holding the collateral for the Trustee a first perfected security interest in all collateral delivered pursuant to the agreement and in all proceeds of the collateral; and the collateral must be delivered free and clear of claims of any third parties and must be registered in the name of the Trustee or agent; and (iii) the value of the collateral, which shall be valued by the Trustee or the collateral agent weekly, must be equal to at least 105% of the amount of cash transferred by or on behalf of the Authority to the counterparty plus accrued interest. "Depository" means The Depository Trust Company, New York, New York, and its successors and assigns as securities depository for the Bonds, or any other securities depository acting as Depository under Article X. "Event of Default" means any of the events described in Section 8.01. "Fiscal Year" means any twelve-month period extending from July 1 in one calendar year to June 30 of the succeeding calendar year, both dates inclusive, or any 5402-0001\770030v2.doc other twelve-month period selected and designated by the Authority as its official fiscal year period. "Indenture" means this In�enture of Trust, as originally executed or as it may from time to time be supplemented, modified or amended by any Supplemental Indenture pursuant to the provisions hereof. "Indenendent Accountant" means any certified public accountant or firm of certified public accountants appointed and paid by the Authority, and who, or each of whom (i) is in fact independent and not under domination of the Authority, the City or the Agency; (ii) does not have any substantial interest, direct or indirect, in the Authority, the City or the Agency; and (iii) is not connected with the Authority, the City or the Agency as an officer or employee of the Authority, the City or the Agency but whom may be regularly retained to make annual or other audits of the books of or reports to the Authority, the City or the Agency. "Information Services" means Financial Information, Inc.'s "Daily Called Bond Service," 30 Montgomery Street, lOth Floor, Jersey City, New Jersey 07302, Attention: Editor; Kenny Information Services' "Called Bond Service," 65 Broadway, 16th Floor, New York, New York 10006; Moody's Investors Service "Municipal and Government," Sz50 77 Center Drive, Suite 150, Charlotte, North Carolina 28217, Attention: Called Bonds Department; Standard & Poor's Corporation "Called Bond Record," 25 Broadway, 3rd Floor, New York, New York 10004; and, in accordance with then current guidelines of the Securities and Exchange Cominission, such other addresses and/or such other services providing information with respect to called bonds as the Authority may designate in a Certificate of the Authority delivered to the Trustee. "Insurance Pavin� Agent" means State Street Bank and Trust Company, N.A., or its successors under the Insurance Policy. "Insurance Policv" means the policy issued by the Insurer insuring the payment when due of the principal of and interest on the Bonds. "Insurer" means MBIA Insurance Corporation. "Interest Account" means the account by that name established and held by the Trustee pursuant to Section 4.02(b)(1). "Interest Pavment Date" means April 1 and October 1 of each year, commencing on October 1, 2004. "Loan" means the loan, as defined in the Loan Agreement, made by the Authority to the Agency. �6402-0001\770030v2.doc "Loan Agreement" means the Project Area No. 1, As Amended, Loan Agreement dated as of June 1, 2004, by and among the Authority, the Agency and the Trustee relating to the Loan, as originally executed or as it may from time to time be supplemented, modified or amended. "Loan Fund" means the fund by that name'established and held by the Trustee pursuant to Section 3.03. "Minimum Sinking Fund Pav_ ments" means the amount of money to be deposited into the Principal Account to be used to redeem Bonds at the principal amounts thereof, in the amounts and at the times set forth in the applicable schedule or schedules of Minimum Sinking Fund Payments contained in this Indenture. "Moodv's" means Moody's Investors Service, its successors and assigns. "Nominee" means the nominee of the Depository, which may be the Depository, as determined from time to time pursuant to Article X. "Outstanding", when used as of any particular time with reference to Bonds, means (subject to the provisions of Section 11.07) all Bonds theretofore executed, issued and delivered by the Authority under this Indenture except (i) Bonds theretofore cancelled by the Trustee or surrendered to the Trustee for cancellation, (ii) Bonds paid or deemed to have been paid within the meaning of Section 11.03, and (iii) Bonds in lieu of or in substitution for which other Bonds shall have been executed, issued and delivered pursuant to this Indenture. "Owner", means the person in whose name the ownership of any Bond or Bonds shall be registered on the Registration Books. "Participants" means those broker -dealers, banks and other financial institutions from time to time for which the Depository holds Bonds as securities depository. "Permitted Investments" means any of the following which at the time of investment are legal investments under the laws of the State for the moneys proposed to be invested therein: A. Direct obligations of the United States of America (including obligations issued or held in book -entry form on the books of the Depai tinent of the Treasury, and CATS and TGRS) or obligations the principal of and interest on which are unconditionally guaranteed by the United States of America. For purposes of this paragraph A, "obligations the principal of and interest on which are unconditionally 66402-0001\770030v2.doc guaranteed by the United States of America" include without limitation tax exempt obligations of a state or a political subdivision thereof which have been defeased under irrevocable escrow instructions with non-callable obligations for which the full faith and credit of the United States of America are pledged for the payment of principal and interest and which are rated "Aaa" by Moody's and "AAA" by S&P. B. Bonds, debentures, notes or other evidences of indebtedness issued or guaranteed by any of the following federal agencies, provided such obligations are backed by the full faith and credit of the United States of America (provided that stripped securities are only permitted if they have been stripped by the agency itsel fl: U.S. Exnort-Imtiort Bank (Eximbank) Direct obligations or fully guaranteed certificates of beneficial ownership 2. Farmers Home Administration (FHA) Certificates of beneficial ownership 3. Federal Financin� Bank 4. Federal Housin� Administration Debentures (FHA) 5. General Services Administration Participation certificates 6. Government National Mort�a�e Association (GNMA or "Ginnie Mae") � GNMA - guaranteed mortgage-backed bonds GNMA - guaranteed pass-through obligations 7. U.S. Maritime Administration Guaranteed Title XI financing 8. U.S. Denartment of Housine and Urban Develonment (HUD) Project Notes Local Authority Bonds New Communities Debentures - U.S. government guaranteed debentures U.S. Public Housing Notes and Bonds - U.S. government guaranteed public housing notes and bonds �6402-0001\770030v2.doc C. Bonds, debentures, notes or other evidences of indebtedness issued or guaranteed by any of the following non -full faith and credit U.S. government agencies (provided that stripped securities are only permitted if they have been stripped by the agency itself): 1. Federal Home Loan Bank Svstem Senior debt obligations 2. Federal Home Loan Mortgage Corporation (FHLMC or "Freddie Mac") Participation Certificates Senior debt obligations 3. Federal National Mortgage Association (FNMA or "Fannie Mae") Mortgage -backed securities and senior debt obligations 4. Student Loan Marketing Association (SLMA or "Sallie Mae") Senior debt obligations 5. Resolution Funding Corp. (REFCORP) obligations D. Money market funds, including funds for which the Trustee or its affiliates provide investment advisory or other management services, registered under the Investment Company Act of 1940, whose shares are registered under the Securities Act of 1933, and having a rating by S&P of AAAm-G; AAAm; or AAm. E. Certificates of deposit secured at all times by collateral described in A and/or B above; provided that such certificates must be issued by commercial banks (including the Trustee and its affiliates), savings and loan associations or mutual savings banks and provided further that the collateral must be held by a third party and the Trustee on behalf of the Owners must have a perfected first security interest in the collateral. F. Certificates of deposit, savings accounts, deposit accounts or money market deposits which are fully insured by the Federal Deposit Insurance Corporation, including those of the Trustee and its affiliates. G. Investment agreements, including guaranteed investment contracts, acceptable to the Insurer. 86402-0001\770030v2.doc H. Commercial paper rated, at the time of purchase, "Prime - 1" by Moody's and "A-1" or better by S&P. I. Bonds or notes issued by any state or municipality which are rated by Moody's and S&P in one of the two highest rating categories assigned by such agencies. J. Federal funds or bankers acceptances with a maximum term of one year of any bank (including the Trustee and its affiliates) which has an unsecured, uninsured and unguaranteed obligation rating of "Prime - 1" or "A3" or better by Moody's and "A-1" or "A" or better by S&P. K. Repurchase Agreements [which are acceptable to the Insurer and] which provide for the transfer of securities from a dealer bank or securities firm (seller/borrower) to the Trustee or third party custodian, as the case may be (buyer/lender), and the transfer of cash from the Trustee to the dealer bank or securities firm with an agreement that the dealer bank or securities firm will repay the cash plus a yield to the Trustee in exchange for the securities at a specified date. L. The Local Agency Investment Fund in the State Treasury or any similar pooled investment fund administered by the State, to the extent such investment is held in the name and to the credit of the Trustee. M. Medium-term notes issued by corporations organized and operating within the United States or by depository institutions licensed by the United States or any state and operating within the United States. Such notes shall have a minimum credit rating of AAa3" by Moody=s and AAA-A by S&P at time of purchase, and shall mature within three years or less. "Princinal Account" means the account by that name established and held by the Trustee pursuant to Section 4.02(b)(2). "Proiect Area" means only the territory within the project area described and defined in the Redevelopment Plan approved and adopted by the City by its Ordinance No. S0. "Proiect Area. As Amended" means the Project Area together with the Added Territory added to the Proj ect Area pursuant to the Amendment. "Ratin� Agencv" means Moody's or S&P. �6402-0001\770030v2.doc "Record Date" means, with respect to any Interest Payment Date, the 15th calendar day of the month immediately preceding such Interest Payment Date, whether or not such day is a Business Day. "Redemption Account" means the account.by that name established and held by the Trustee pursuant to Section 4.02(b)(3). "Redevelopment Law" means the Community Redevelopment Law, being California Health and Safety Code Section 33000, et seq., and all future acts supplemental thereto or amendatory thereof. "Redevelopment Plan" means the Redevelopment Plan for the Project Area, approved and adopted by the City by its Ordinance No. 80 and includes any amendment of the Redevelopment Plan heretofore or hereafter made pursuant to law, except insofar as any such amendment pertains only to the Added Territory. "Registration Books" means the records maintained by the Trustee pursuant to Section 2.09 for the registration and transfer of ownership of the Bonds. "Report" means a document in writing signed by an Independent Redevelopment Consultant and including: (i) a statement that the person or firm making or giving such Report has read the pertinent provisions of the document or documents to which such Report relates; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the Report is based; and (iii) a statement that, in the opinion of such person or firm, sufficient examination or investigation was made as is necessary to enable said consultant to express an informed opinion with respect to the subject matter referred to in the Report. "Representation Letter" means a representation letter from the Authority and the Trustee to the Depository, as described in Section 10.02. "Reauest" means a request in writing signed by any officer of the designated public entity duly authorized by its legislative body for that purpose. "Revenue Fund" means the fund by that name established and held by the Trustee pursuant to Section 4.02(a). "Revenues" means (i) all amounts payable by the Agency pursuant to Section 2.03 or Section 2.04 of the Loan Agreement; (ii) any proceeds of the Bonds originally deposited with the Trustee and all moneys deposited and held from time to time by the Trustee in the funds and accounts established hereunder; and (iii) income and gains with respect to the investment of amounts on deposit in the funds and accounts �102-0001\770030v2.doc established hereunder, other than amounts payable to the United States of America pursuant to Section 5.07. "S&P" means Standard & Poor's Ratings Group and its successors and assigns. "Securities Depositories" means The Depository Trust Company, 711 Stewart Avenue, Garden City, New York 11530, Telecopier Number (516) 227-4039 or (516) 227-4190; and, in accordance with then current guidelines of the Securities and Exchange Commission, such other addresses or such other securities depositories as the Authority may designate in a Certificate of the Authority delivered to the Trustee. "State" means the State of California. "Sunalemental Indenture" means any indenture, agreement or other instrument hereafter duly executed by the Authority and the Trustee in accordance with the provisions of Section 7.01. " "Tax Re�ulations" means temporary and permanent regulations promulgated under or with respect to Section 103 and Sections 141 through 150, inclusive, of the Code. "Trust Office" means the corporate trust office of the Trustee at the address set forth in Section 11.13 or such other offices as may be specified to the Authority by the Trustee in writing. With respect to presentation of Bonds for payment or for registration of transfer and exchange such term shall mean the office or agency of the Trustee at which, at any particular time, its corporate trust business shall be conducted. "Trustee" means BNY Western Trust Company and its successors and assigns, and any other corporation or association which may at any time be substituted in its place as provided in Article VI. "Underwriters" means Section 1.02. Rules of Construction. All references in tliis Indenture to "Articles," "Sections," and other subdivisions, unless indicated otherwise, are to the corresponding Articles, Sections or subdivisions of this Indenture; and the words "herein," "hereof," "hereunder," and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or subdivision hereof. Section 1.03. Authorization and Puroose of Bonds. The Authority has reviewed all proceedings heretofore taken relative to the auth4rization of the Bonds and has found, as a result of such review, and hereby finds and determines that all things, ��.402-0001\770030v2.doc conditions, and acts required by law to exist, happen and be performed precedent to and in 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 now authorized under the Bond Law and each and every requirement of law, to issue the Bonds in the manner and form provided in this Indenture. The Authority hereby authorizes the issuance of the Bonds pursuant to the Bond Law and this Indenture for the purpose of providing funds to make the Loan to the Agency pursuant to the Loan Agreement. Section 1.04. Equal Securitv. In consideration of the acceptance of the Bonds by the Owners thereof, this Indenture shall be deemed to be and shall constitute a contract among the Authority, the Trustee and the Owners of the Bonds; and the covenants and agreements herein set forth to be performed on behalf of the Authority shall be for the equal and proportionate benefit, security and protection of all Owners of the Bonds without preference, priority or distinction as to security or otherwise of any of the Bonds over any of the others by reason of the number or date thereof or the time of sale, execution or delivery thereof, or otherwise for any cause whatsoever, except as expressly provided therein or herein. � 4O2-0001\77oo3ov2.aoc ARTICLE II ISSUANCE OF BONDS Section 2.01. Authorization of Bonds. The Bonds are authorized to be issued by the Authority under and subject to the Bond Law and the terms of this Indenture and shall be designated the "Palm Desert Financing Authority Tax Allocation Refunding Revenue Bonds (Project Area No. l, As Amended), 2004 Series A", and shall be issued in the original aggregate principal amount of $ . Section 2.02. Terms of Bonds. The Bonds shall be issued in fully registered form without coupons in denominations of $5,000 or any integral multiple thereof, so long as no Bond shall have more than one maturity date. The Bonds shall be dated the Closing Date, shall mature on April 1 in each of the years and in the amounts, and shall bear interest (calculated on the basis of a 360-day year of twelve 30-day months) at the rates, as follows: Maturity Date Principal Interest (Anrilll Amount Rate (To come) Interest on the Bonds shall be payable on each Interest Payment Date to the person whose name appears on the Registration Books as the Owner thereof as of the Record Date immediately preceding each such Interest Payment Date, such interest to be paid by check or draft of the Trustee mailed by first class mail, postage prepaid, on each Interest Payment Date to the Owner at the address of such Owner as it appears on the Registration Books as of the preceding Record Date; provided, however, that at the written request of the Owner of at least $1,000,000 in aggregate principal amount of Outstanding Bonds filed with the Trustee prior to any Record Date, interest on such Bonds shall be paid to such Owner on each succeeding Interest Payment Date by wire transfer of immediately available funds to an account in the United States designated in such written request. Principal of and premium, if any, on any Bond shall be paid upon presentation and surrender thereof, at maturity or the prior redemption thereof, at the Trust Office. The principal of and interest and premium, if any, on the Bonds shall be payable in lawful money of the United States of America. Each Bond shall bear interest from the Interest Payment Date next preceding the date of authentication thereof, unless (i) it is authenticated after a Record Date and on or before the following Interest Payment Date, in which event it shall bear interest from such Interest Payment Date; or (ii) it is authenticated on or before �s3�oa-000i���ooaoVa.aoc September 15, 2004, in which event it shall bear interest from the Closing Date; provided, however, that if, as of the date of authentication of any Bond, interest thereon is in default, such Bond shall bear interest from the Interest Payment Date to which interest has previously been paid or made available for payment thereon. Section 2.03. Redemation of Bonds. (a) Redemntion frvm Ontional Loan Pret�avments. In the event that the Agency shall exercise its option to prepay principal installments of the Loan pursuant to Section 2.04(a) of the Loan Agreement, the Revenues derived from such prepayment shall be applied to the redemption of the Bonds, as a whole, or in part among maturities on a pro rata basis as designated in writing by the Authority and by lot within a maturity, in integral multiples of Five Thousand Dollars ($5,000) principal amount, on any Interest Payment Date on or after April 1, 2014, at the following respective redemption prices (expressed as percentages of the principal amount of the Bonds to be redeemed), plus accrued interest thereon to the date of redemption: Redemption Dates Redemption Prices April 1, 2014 and October 1, 2014 ................................................. 102% April 1, 2015 and October 1, 2015 ................................................. 101% April 1, 2016 and thereafter ............................................................ 100% The Authority shall provide written notice.to the Trustee of any redemption pursuant to this Section 2.03(a) at least 45 but not more than 90 days prior to the date fixed for such redemption. (b) Mandatory Sinkin� Fund Redemntion. The Bonds shall also be subject to mandatory redemption by lot, on April 1 in each year commencing as set forth below, from sinking fund payments made by the Authority into the Principal Account pursuant to Section 4.02(b)(2), at a redemption price equal to the principal amount thereof to be redeemed, without premium, plus accrued interest to the date of redemption, in the aggregate respective principal amounts and on April 1 in the respective years as set forth in the following tables; provided, however, that (i) in lieu of redemption thereof on April 1 in any year, the Bonds may be purchased by the Agency pursuant to Section 2.03 of the Loan Agreement and tendered to the Trustee for cancellation not later than the preceding January 15, and (ii) if some but not all of the Bonds have been redeemed pursuant to Paragraph (b) above, the total amount of all future sinking fund payments shall be reduced by the aggregate principal amount of the Bonds so redeemed, to be allocated among such sinking fund payments on a pro rata basis. ��02-000i���oo3�Va.aoc Bonds Maturing April l, Sinking Fund Principal Amount Redemption Date to be Redeemed (Anril 11 or Purchased (To come) Bonds Maturing April l, Sinking Fund Principal Redemption Date Amount f Anril 11 = to be Redeemed or Purchased (To come) (c) Notice of Redemtition. The Trustee on behalf and at the expense of the Authority shall mail (by first class mail) notice of any redemption to the respective Owners of any Bonds designated for redemption at their respective addresses appearing on the Registration Books, and, by such means �cceptable to the following institutions, to the Securities Depositories and to one or more Information Services, at least 30 but not more than 60 days prior to the date fixed for redemption; provided, however, that neither failure to receive any such notice so mailed nor any defect therein shall affect the validity of the proceedings for the redemption of such Bonds or the cessation of the accrual of interest thereon. Such notice shall state the date of the notice, the redemption date, the redemption place and the redemption price and shall designate the CUSIP numbers, the Bond numbers (but only if less than all of the Outstanding Bonds are tv be redeemed) and the maturity or maturities (in the event of redemption of all of the Bonds of such maturity or maturities in whole) of the Bonds to be redeemed, and shall require that such Bonds be then surrendered at the Trust Office of the Trustee for redemption at the redemption price, giving notice also that further interest on such Bonds will not accrue from and after the redemption date. �&�oz-000i���oo3oVa.ao� (d) Selection of Bonds for Redemntion. Whenever provision is made in this Indenture for the redemption of less than all of the Bonds of any maturity, the Trustee shall select the Bonds to be redeemed from all Bonds not previously called for redemption, by lot in any manner which the Trustee in its sole discretion shall deem appropriate under the circumstances. For purposes of such selection, all Bonds shall be deemed to be comprised of separate $5,000 portions and, such portions shall be treated as separate bonds which may be separately redeemed. (e) Partial Redemntion of Bonds. In the event only a portion of any Bond is called for redemption, then upon surrender of such Bond the Authority shall execute and the Trustee shall authenticate and deliver to the Owner thereof, at the expense of the Authority, a new Bond or Bonds of the same series, tenor and maturity date, of authorized denominations in aggregate principal amount equal to the unredeemed portion of the Bond to be redeemed. � (� Effect of Redemntion. From and after the date fixed for redemption, if funds available for the payment of the principal of, interest on and premium, if any, on the Bonds so called for redemption shall have been duly provided, such Bonds so called shall cease to be entitled to any benefit under the Indenture other than the right to receive payment of the redemption price, and no interest shall accrue thereon from and after the redemption date specified in such notice. All Bonds redeemed pursuant to this Section shall be destroyed. Section 2.04. Form of Bonds. The Bonds, the Trustee's certificate of authentication, and the assignment shall be substantially in the respective forms set forth in Exhibit A attached hereto and by this reference incorporated herein, with necessary or appropriate variations, omissions and insertions, as permitted or required by this Indenture. Section 2.05. Execution of Bonds. 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 deputy duly appointed by the Authority Commission, under the printed seal of the Authority, 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. ��oz-000i���oo3oVa.aoc Only such of the Bonds as shall bear thereon a certificate of authentication in substantially the form set forth in Exhibit A hereto, 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 a�ithenticated and delivered hereunder and are entitled to the benefits of this Indenture. Section 2.06. Transfer of Bonds. Any Bond may, in accordance with its tertns, be transferred, upon the Registration Books, 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 in a form acceptable to the Trustee, duly executed. Whenever any Bond shall be surrendered for transfer, the Authority shall execute and the Trustee shall thereupon authenticate and deliver to the transferee a new Bond or Bonds of the same series and of like tenor, maturity and aggregate principal amount. The cost of printing any Bonds and any services rendered or expenses incurred by the Trustee in connection with any such transfer shall be paid by the Authority, except that the Trustee shall require the payment by the Owner requesting such transfer of any tax or other governmental change required to be paid with respect to such transfer. The Trustee shall not be required to transfer, pursuant to this Section 2.06, either (i) any Bond during the period established by the Trustee for the selection of Bonds for redemption, or (ii) any Bond selected for redemption pursuant to Section 2.03. Section 2.07. Exchan�e of Bonds. Bonds may be exchanged at the Trust Office for the same aggregate principal amount of Bonds of the same series and of the same tenor and maturity and of other authorized denominations. The cost of printing any Bonds and any services rendered or expenses incurred by the Trustee in connection with any such exchange shall be paid by the Authority, except that the Trustee shall require the payment by the Owner requesting such exchange of any tax or other governmental change required to be paid with respect to such exchange. The Trustee shall not be required to exchange, pursuant to this Section 2.07, either (i) any Bond during the period established by the Trustee for the selection of Bonds for redemption, or (ii) any Bond selected for redemption pursuant to Section 2.03. Section 2.08. Temporary Bonds. The Bonds may be issued initially in temporary form exchangeable for definitive Bonds when ready for delivery. The temporary Bonds may be printed, lithographed or typewritten, shall be of such denominations as may be detertnined by the Authority 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 be registered and�authenticated by the Trustee upon the same conditions and in substantially the same manner as the definitive Bonds; provided that any temporary Bond need only be signed in the name and on behalf of the Authority with the manual or facsimile signature of the Secretary, or any deputy duly ��402-0001\77003ov2.doc appointed by the Authority Commission, and need not be attested. If the Authority issues temporary Bonds, it will execute and furnish definitive Bonds without delay, and thereupon the temporary Bonds shall be surrendered, for cancellation, in exchange therefor at the Trust Office and the Trustee shall authenticate and deliver in exchange for such temporary Bonds definitive Bonds of the same series and of like tenor, maturity and aggregate principal amount in 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. Re�istration Books. The Trustee will keep or cause to be kept at its Trust Office sufficient records for the registration and transfer of the Bonds, which shall at all times during regular business hours be open to inspection by the Authority with reasonable prior notice; and, upon presentation for such purpose, the Trustee shall, under such reasonable regulations as it may prescribe, register or transfer or cause to be registered or transferred, on such records, Bonds as hereinbefore provided. Section 2.10. Bonds Mutilated. Lost. Destroved or Stolen,. If any Bond shall become mutilated, the Authority, at the expense of the Owner of such Bond, shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like series, tenor, maturity and aggregate principal amount in authorized denomination in exchange and substitution for the Bond so mutilated, but only upon surrender to the Trustee of the Bond so mutilated. Every mutilated Bond so surrendered to the Trustee shall be cancelled by it and destroyed. If any Bond issued hereunder shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the Trustee and, if such evidence be satisfactory to the Trustee and indemnity satisfactory to the Trustee shall be given, the Authority, at the expense of the Owner, shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like series and tenor in lieu of and in substitution for the Bond so lost, destroyed or stolen (or if any such Bond shall have matured or shall have been called for redemption, instead of issuing a substitute Bond the Trustee may pay the same without surrender thereof upon receipt of indemnity satisfactory to the Trustee). The Trustee may require payment of a reasonable fee for each new Bond issued under this Section 2.10 and of the expenses which may be incurred by the Authority and the Trustee. Any Bond issued under the provisions of this Section 2.10 in lieu of any Bond alleged to be lost, destroyed or stolen shall constitute an original contractual obligation on the part of the Authority whether or not the Bond alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be equally and proportionately entitled to the benefits of this Indenture with all other Bonds secured by this Indenture. � ................................................. ARTICLE III DEPOSIT AND APPLICATI(�N OF PROCEEDS OF ............... BONDS; ISSUANCE OF BONDS ��oz-000i���ooaoVa.aoc Section 3.01. Issuance of Bonds. Upon the execution and delivery of this Indenture, the Authority shall execute and deliver Bonds in the aggregate principal amount set forth herein and shall deliver the Bonds to the Trustee for authentication and delivery to the original purchaser thereof upon the Request of the Authority. Section 3.02. Loan Fund: Annlication of Proceeds of Sale of Bonds. The Trustee shall establish and maintain a separate fund to be known as the "Loan Fund@. Upon the receipt of payment for the Bonds on the Closing Date, the Trustee shall deposit the proceeds of sale thereof in the amount of $ in the Loan Fund. The Trustee shall disburse all amounts in the Loan Fund pursuant to Section 2.02 of the Loan Agreement. Section 3.03. Validitv of Bonds. The validity of the authorization and issuance of the Bonds shall not be affected in any way by any proceedings taken by the Agency with respect to the application of the proceeds of the Loan, and the recital contained in the Bonds that the same are issued pursuant to the Bond Law shall be conclusive evidence of their validity and of the regularity of their issuance. ARTICLE IV . REVENUES; FLOW 4F FUNDS Section 4.01. Pled�e of Revenues: Assi�nment of Ri�hts.. Subject to the provisions of Section 6.03, the Bonds shall be secured by a first lien on and pledge (which shall be effected in the manner and to the extent hereinafter provided) of all of the Revenues. The Bonds shall be equally secured by a pledge, charge and lien upon the Revenues without priority for number, date of Bonds, date of execution or date of delivery; and the payment of the interest on and principal of the Bonds and any premiums upon the redemption of any thereof shall be and are secured by an exclusive pledge, charge and lien upon the Revenues. So long as any of the Bonds are Outstanding, the Revenues shall not be used for any other purpose; except that out of the Revenues there may be apportioned such sums, for such purposes, as are expressly permitted by Section 4.02. The Authority hereby transfers in trust and assigns to the Trustee, for the benefit of the Owners from time to time of the Bonds, all of the Revenues and all of the right, title and interest of the Authority in the Loan Agreement (other than the rights of the Authority under Section 5.04 thereo�. The Trustee shall be entitled to and shall 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, subject to the provi�ions hereof, shall take all steps, ��oa-000i���oosoV2.aoc actions and proceedings reasonably necessary in its judgment to enforce, either jointly with the Authority or separately, all of the rights of the Authority and all of the obligations of the Agency under the Loan Agreement. Section 4.02. Receipt. Deposit and Application of Revenues. (a) Deaosit of Revenues, Revenue Fund. All Revenues described in clause (i) of the definition thereof in Section 1.O 1 shall be promptly deposited by the Trustee upon receipt thereof in a special fund designated as the "Revenue Fund" which the Trustee shall establish, maintain and hold in trust hereunder. (b) Annlication of Revenues: Accounts. On or before each Interest Payment Date, the Trustee shall transfer from the Revenue Fund and deposit into the following respective accounts (each of which the Trustee shall establish and maintain within the Revenue Fund), the following amounts in the following order of priority, the requirements of each such account (including the making up of any deficiencies in any such account resulting from lack of Revenues sufficient to make any earlier required deposit) at the time of deposit to be satisfied before any transfer is made to any account subsequent in priority: (1) Interest Account. On or before each Interest Payment Date, the Trustee shall deposit in the Interest Account an amount required to cause the aggregate amount on deposit in the Interest Account to equal the amount of interest coming due and payable on such Interest Payment Date on all Outstanding Bonds. No deposit need be made into the Interest Account if the amount contained therein is at least equal to the interest coming due and payable upon all Outstanding Bonds on the next succeeding Interest Payment Date. All moneys in the Interest Account shall be used and withdrawn by the Trustee solely for the purpose of paying the interest on the Bonds as it shall become due and payable (including accrued interest on any Bonds redeemed prior to maturity). All amounts on deposit in the Interest Account on the first day of any Bond Year, to the extent not required to pay any interest then having come due and payable on the Outstanding Bonds, shall be withdrawn therefrom by the Trustee and transferred to the Agency to be used for any lawful purposes of the Agency. (2) Princit�al Account. On or before each date on which the principal of the Bonds shall be payable, the Trustee shall deposit in the Principal Account an amount required to cause the aggregate amount on deposit in the Principal Account to equal (i) the principal amount of the Bonds coming due and payable on such date pursuant to Section 2.02 and (ii) the redemption price of the Bonds (consisting of the principal amount thereo� required to be redeemed on such date pursuant to Section 2.03(b). All moneys in the Principal Account shall be used and withdrawn by the Trustee solely for the purpose of (i) paying the principal of the Bonds at the maturity thereof or (ii) paying the principal of the Bonds upon the mandatory sinking fund redemption ��oa-000i���oosov2.aoc thereof pursuant to Section 2.03(b) or upon the maiurity thereof. All amounts on deposit in the Principal Account on the first day of any Bond Year, to the extent not required to pay the principal of any Outstanding Bonds then having come due and payable, shall be withdrawn therefrom and transferred to the Agency to be used for any lawful purposes of the Agency. (3) Redemntion Account. The Trustee, at any time that the Agency shall exercise its option to prepay principal installments of the Loan pursuant to Section 2.04 of the Loan Agreement, shall deposit the Revenues derived from such prepayxnent in the Redemption Account (which the Trustee shall also establish and maintain within the Revenue Fund), to be used and withdrawn by the Trustee solely for the purpose of paying the principal and redemption premiums, if any, on the Bonds to be redeemed on their respective redemption dates, as directed by the Authority. Section 4.03. Investments. All moneys in any of the funds or accounts established with the Trustee pursuant to this Indenture or pursuant to the Loan Agreement shall be invested by the Trustee solely in Permitted Investments pursuant to the written direction of the Authority given to the Trustee two Business Days in advance of the making of such investments; provided that moneys in the Reserve Fund established pursuant to the Loan Agreement shall be invested in Permitted Investments which mature not more than five years from the date of such investment. In the absence of any such direction from the Authority, the Trustee shall invest any such moneys in Permitted Investments described in Paragraph D of the definition thereo£ Obligations purchased as an investment of moneys in any fund shall be deemed to�be part of such fund or account. All interest or gain derived from the investment of amounts in any of the funds or accounts established hereunder shall be deposited in the fund vr account from which such investment was made. For purposes of acquiring any investments hereunder, the Trustee may commingle funds held by it hereunder. The Trustee may (but shall not be obligated to) act as principal or agent in the acquisition or disposition of any investment. The Trustee shall incur no liability for losses arising from any investments made at the direction of the Authority, or otherwise made pursuant to this Section. The Trustee shall be entitled to rely conclusively upon the written instructions of the Authority directing investments in Permitted Investments as to the fact that each such investment is permitted by the laws of the State, and shall not be required to make further investigation with respect thereto. With respect to any restrictions set forth in the definition of Permitted Investments set forth.in Section 1.01 which embody legal conclusions (e.g., the existence, validity and perfection of security interests in collateral), the Trustee shall be entitled to rely conclusively on an opinion of counsel or upon a representation of the provider of such Permitted Investment obtained at the Authority's or the Agency's expense. ��402-0001\770030v2.doc Except as specifically provided in this Indenture, the Trustee shall not be liable to pay interest on any moneys received by it, but shall be liable only to account to the Authority and the Agency for earnings derived from funds that have been invested. The Authority acknowledges that to the extent regulations of the Comptroller of the Currency or other applicable regulatory entity grant the Authority the right to receive brokerage confirmations of security transactions as they occur, the Authority specifically waives receipt of such confirmations to the extent permitted by law. The Trustee will furnish the Authority periodic cash transaction statements which include detail for all investment transactions made by the Trustee hereunder. The Trustee or any of its affiliates may act as sponsor; advisor or manager in connection with any investments made by the Trustee hereunder. Section 4.04. Valuation and Disnosition of Investments,. For the purpose of determining the amount in any fund or account established hereunder or under the Loan Agreement, any investments credited to such fund or account shall be valued at least annually, on or before July 1, at'the market value thexeo£ In making any valuations hereunder the Trustee may utilize computerized securities pricing services that may be available to it, including those available through its regular accounting system. ARTICLE V COVENANTS OF THE AUTHORITY Section 5.01. Punctual Pavment. The Authority shall punctually pay or cause to be paid the principal, interest and premium, if any, to become due in respect of all the Bonds, in strict conformity with the terms of the Bonds and of this Indenture, according to the true intent and meaning thereof, but only out of Revenues and other assets pledged for such payment as provided in this Indenture. Section 5.02. Extension of Pavment of Bonds. The Authority shall not directly or indirectly extend or assent to the extension of the maturity of any of the Bonds or the time of payment of any claims for interest by the purchase of such Bonds or by any other arrangement, and in case the maturity of any of the Bonds or the time of payment of any such 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 5.02 shall be deemed to limit the right of the Authority to issue bonds or other obligations for the purpose of refunding any Outstanding Bonds, and such issuance shall not be deemed to constitute an extension of maturity of the Bonds. i�oa-000i���oo3oVz.aoc Section 5.03. A�ainst Encumbrances. The Authority shall not create, or permit the creation of, any pledge, lien, charge or other encumbrance upon the Revenues and other assets pledged or assigned under this Indenture while any of the Bonds are Outstanding, except the pledge and assignment created by this Indenture. Subject to this limitation, the Authority expressly reserves the right to enter into one or more other indentures for any of its corporate purposes, including other programs under the Bond Law, and reserves the right to issue other obligations for such purposes. Section 5.04. Power to Issue Bonds and Make Pled�e and Assi�nment. The Authority is duly authorized pursuant to law to issue the Bonds and to enter into this Indenture and to pledge and assign the Revenues, the Loan Agreement and other assets purported to be pledged and assigned, respectively, under this Indenture in the manner and to the extent provided in this Indenture. The Bonds and the provisions of this Indenture are and will be the legal, valid and binding special obligations of the Authority in accordance with their terms, and the Authority 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 Owners under this Indenture against all claims and demands of all persons whomsoever. Section 5.05. Accounting Records and Financial Statements. The Trustee shall at all times keep, or cause to be kept, proper books of record and account, prepared in accordance with corporate trust industry standards, in which complete and accurate entries shall be made of all transactions made by the Trustee relating to the proceeds of Bonds, the Revenues, the Loan Agreement and all funds and accounts established pursuant to this Indenture. Such books of record and account shall be available for inspection by the Authority and the Agency, during regular business hours with reasonable prior notice. Section 5.06. No Additional Indebtedness. Except for the Bonds, the Authority shall not incur any indebtedness payable out of the Revenues. Section 5.07. Tax Covenants. (a) The Authority covenants that, in order to maintain the exclusion from gross income for Federal income tax purposes of the interest on the Bonds, and for no other purpose, the Authority will satisfy, or take such actions as are necessary to cause to be satisfied, each provision of the Code necessary to maintain such exclusion. In furtherance of this covenant the Authority agrees to comply with such written instructions as may be provided by Bond Counsel. (b) The Authority covenants that no part of the proceeds of the Bonds shall be used, directly or indirectly, to acquire any Investment Property which would cause the Bonds to become arbitrage bonds, as that term is defined in Section 148 of the i�oa-000l\��oo3ova.aoc Code, or under applicable Tax Regulations. In order to assure compliance with the rebate requirements of Section 148 of the Code, the Authority further covenants that it will pay or cause to be paid to the United States the amounts necessary to satisfy the requirements of Section 148(� of the Code, and that it will establish such accounting procedures as are necessary to adequately determine, account for and pay over any such amount required to be paid thereunder in a manner consistent with the requirements of Section 148 of the Code, such covenants to survive the defeasance of the Bonds. (c) The Authority covenants that it will, not take any action or omit to take any action, which action or omission, if reasonably expected on the date of initial execution and delivery of the Bonds, would result in a loss of exclusion from gross income for purposes of Federal income taxation, under Section 103 of the Code, of interest on the Bonds. (d) The Authority covenants that it will not use or permit the use of any property financed with the proceeds of the Bonds by any person (other than a state or local governmental unit) in such manner or to such extent as would result in a loss of exclusion of the interest on the Bonds from gross income for Federal income tax purposes under Section 103 of the Code. (e) Notwithstanding any provision of this Indenture, and except as provided below, the Authority covenants that none of the moneys contained in any of the funds or accounts created pursuant to the Indenture with respect to the Bonds shall be: (i) used in making loans guaranteed by the United States (or any agency or instrumentality thereofj, (ii) invested directly or indirectly in a deposit or account insured by the Federal Deposit Insurance Corporation, National Credit Union Administration or any other similar Federally chartered corporation, or (iii) otherwise invested directly or indirectly in obligations guaranteed (in whole or in part) by the United States (or any agency or instrumentality thereo�; provided, however, that the above restrictions do not apply to: (a) the investment on moneys held in the Revenue Fund or any other "bona fide debt service fund" as defined for purposes of Section 148 of the Code, (b) investment in direct obligations of the United States Treasury, (c) investment in obligations guaranteed by the Federal National Mortgage Association, Government National Mortgage Association, or the Federal Home Loan Mortgage Corporation, (d) investment in obligations issued pursuant to Section 21B(d)(3) of the Federal Home Loan Bank Act, as amended by Section 511(a) of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, (e) investments permitted under regulations issued pursuant to Section 149(b)(3)(B) of the Code, or (� such other investments permitted under the Indenture as, in the opinion of Bond Counsel, do not jeopardize the exclusion from gross income for Federal income tax purposes of interest on the Bonds. Section 5.08. Loan A�reement. The Trustee, as assignee of the Authority's rights pursuant to Section 4.01, shall receive all amounts due from the Agency pursuant to ��oz-000i���oo3ovz.aoc the Loan Agreement and, upon an Event of Default, shall enforce, and take all steps, actions and proceedings reasonably necessary for the enforcement of all of the rights of the Authority thereunder and for the enforcement of all of the obligations of the Agency thereunder. The Loan Agreement may be amended or modified pursuant to the applicable provisions thereof, but only with the written consent of the Insurer (as long as the Insurance Policy is in full force and effect) and only:. (i) if the Authority, the Agency or the Trustee first obtains the written consent of the Owners of a majority in aggregate principal amount of the Bonds then Uutstanding to such amendment or modification, provided, however, that no such amendment or modification shall (a) extend the maturity of or reduce the amount of interest or principal payments on the Loan, or otherwise alter or impair the obligation of the Agency to pay the principal, interest or prepayment premiums on the Loan at the time and place and at the rate and in the currency provided therein, without the express written consent of the Owner of each affected Bond, (b) reduce the percentage of the Bonds required for the written consent to any such modification or amendment thereof or hereof, or (c) without its written consent thereto, modify any of the rights or obligations of the Trustee; or (ii) without the consent of any of the Owners, if such amendment or modification does not modify the rights or obligations of the Trustee without its prior written consent, and is for any one or more of the following purposes - (a) to add to the covenants and agreements of the Agency contained in the Loan Agreement other covenants and agreements thereafter to be observed, or to limit or surrender any rights or power therein reserved to or conferred upon the Agency so long as such limitation or surrender of such rights or powers shall not materially adversely affect the Owners of the Bonds; (b) to make such provisions for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained in the Loan Agreement, or in any other respect whatsoever as the Agency and the Authority may deem necessary or desirable, provided under any circumstances that such modifications or amendments shall not materially adversely affect the interests of the Owners of the Bonds; (c) to amend any provision thereof relating to the Code, to any extent whatsoever but only if and to the extent such ame�ndment will not adversely affect the exclusion from gross income for federal income tax purposes of interest on any of the Bonds under the Code, in the opinion of Bond Counsel; or (d) to provide for the issuance of Parity Debt under and in accordance with the provisions of the Loan Agreement. ��02-0001\770030v2.doc Nothing in this Section 5.08 shall prevent the Agency and the Authority, with the written consent of the Insurer (as long as the Insurance Policy is in full force and effect), from entering into any amendment or modification of the Loan Agreement which solely affects a particular Bond or Bonds all of the Owners of which shall have consented to such amendment or modification; provided, however,'no such amendment or modification shall affect the rights or obligations of the Trustee without its prior written consent. The Trustee shall be entitled to rely upon the opinion of Bond Counsel stating that the requirements of this Section 5.08 have been met with respect to any amendment or modification of the Loan Agreement. Section 5.09. Further Assurances. The Authority will adopt, make, execute and deliver any and all such further resolutions, instrum�nts 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 the rights and benefits provided in this Indenture. ARTICLE VI THE TRUSTEE Section 6.01. Aunointment of Trustee. BNY Western Trust Company, a state banking corporation organized and existing under and by virtue of the laws of the State of California, is hereby appointed Trustee by the Authority for the purpose of receiving all moneys required to be deposited with the Trustee hereunder and to allocate, use and apply the same as provided in this Indenture. The Authority agrees that it will maintain a Trustee which shall be a financial institution having a corporate trust office in the State, with a combined capital and surplus of at least $75,000,000, and subject to supervision or examination by federal or State authority, so long as any Bonds are Outstanding. If such financial institution publishes a report of condition at least annually pursuant to law or to the requirements of any supervising or examining authority above referred to, then for the purpose of this Section 6.01 the combined capital and surplus of such financial institution shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Trustee is hereby authorized to pay the principal of and interest and redemption premium, if any, on the Bonds when duly presented for payment at maturity, or on redemption prior to maturity, and to cancel all Bonds upon payment thereof. The Trustee shall keep accurate records of all funds administered by it and of all Bonds paid and discharged. Section 6.02. Accetitance of Trusts. The Trustee hereby accepts the trusts imposed upon it by this Indenture, and agrees to perform said trusts, but only upon and subject to the following express terms and conditions: i�oz-000i���oo3ov2.aoc (a) The Trustee, prior to the occurrence of an Event of Default and after curing of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants, duties or obligations shall be read into the Indenture against the Trustee. In case an Event of Default hereunder has occurred (which has not been cured or waived), the Trustee may exercise such of the rights and powers vested in it by this Indenture, and shall use the same degree of care and skill and diligence in their exercise, as a prudent person would use in the conduct of its own affairs. (b) The Trustee may execute any of the trusts or powers hereof and perform the duties required of it hereunder by or through attorneys, agents, or receivers, and shall be entitled to advice of counsel concerning all matters of trust and its duty hereunder. The Trustee may conclusively rely on such advice or an opinion of counsel as full and complete protection for any action taken or suffered by it hereunder. (c) The Trustee shall not be responsible for any recital herein, in the Loan Agreement or in the Bonds, or for any of the supplements hereto or thereto or instruments of further assurance, or for the validity of this Indenture or the Loan Agreement, or for the sufficiency of the security for the Bonds issued hereunder or intended to be secured hereby, or the tax status of the interest on the Bonds, and the Trustee shall not be bound to ascertain or inquire as to the observance or performance of any covenants, conditions or agreements on the part of the Authority hereunder. (d) The Trustee (including its officers and employees) may become the Owner of Bonds secured hereby with the same rights which it would have if not the Trustee; may acquire and dispose of other bonds or evidences of indebtedness of the Authority with the same rights it would have if it were not the Trustee; and may act as a depositary 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 Owners of Bonds, whether or not such committee shall represent the Owners of the majority in aggregate principal amount of the Bonds then Outstanding. The Trustee, either as principal or agent, may engage in or be interested in any financial or other transaction with the Authority. (e) The Trustee shall be protected in acting upon any notice, request, report, consent, certificate, order, affidavit, letter, direction, facsimile, e-mail, telegram or other paper or document believed by it to be genuine and correct and to have been signed or sent by the proper person or persons and need not make any investigation into the facts or matters contained therein. Any action taken or omitted to be taken by the Trustee pursuant to this Indenture upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is the Owner of any Bond, shall be conclusive and binding upon all future Owners of the same Bond and upon ��402-0001\770030v2.doC Bonds issued in exchange therefor or in place thereof. The Trustee shall not be bound to recognize any person as an Owner of any Bond or to take any action at his request unless the ownership of such Bond by such person shall be reflected on the Registration Books. (f j As to the existence or non-existence of any fact or as to the sufficiency or validity of any instrument, paper or proceeding, the Trustee shall be entitled to rely upon a Certificate of the Authority as sufficient evidence of the facts therein contained and prior to the occurrence of an Event of Default hereunder of which the Trustee has been given notice or is deemed to have notice, as provided in Section 6.02(h), shall also be at liberty to accept a Certificate of the Authority to the effect that any particular dealing, transaction or action is necessary or expedient, but may at its discretion secure such further evidence deemed by it to be necessary or advisable, but shall in no case be bound to secure the same. (g) The permissive right of the Trustee'to do things enumerated in this Indenture shall not be construed as a duty and it shall not be answerable for other than its negligence or willful misconduct. The immunities and exceptions from liability of the Trustee shall extend to its officers, directors, employees and agents. In the absence of negligence or willful misconduct, the Trustee shall not be liable for any error of judgment. (h) The Trustee shall not be required to take notice or be deemed to have notice of any Event of Default hereunder except failure by the Authority to make any of the payments to the Trustee required to be made by the Authority pursuant hereto, unless the Trustee shall be specifically notified in writing of such default by the Authority or by the Owners of at least 25 percerit in aggregate principal amount of the Bonds then Outstanding and all notices or otlier instruments required by this Indenture to be delivered to the Trustee must, in order to be effective, be delivered at the Trust Office of the Trustee in Los Angeles, California, and in the absence of such notice so delivered the Trustee may conclusively assume there is no Event of Default hereunder except as aforesaid. (i) At any and all reasonable times the Trustee, and its duly authorized agents, attorneys, experts, accountants and representatives, shall have the right, but not the obligation, fully to inspect all books, papers and records of the Authority pertaining to the Bonds, and to make copies of any of such books, papers and records such as may be desired but which is not privileged by statute or by law. � (j) The Trustee shall not be required to give any bond or surety in respect of the execution of the said trusts and powers or otherwise in respect of the premises hereo£ � ��402-0001\770030v2.doc (k) Notwithstanding anything elsewhere in this Indenture with respect to the execution of any Bonds, the withdrawal of any cash, the release of any property, or any action whatsoever within the purview of this Indenture, the Trustee shall have the right, but shall not be required, to demand any showings, certificates, opinions, appraisals or other information, or corporate action or evidence thereof, as may be deemed desirable for the purpose of establishing the right of the Authority to the execution of any Bonds, the withdrawal of any cash, or the taking of any other action by the Trustee. (1) Before taking the action referred to in Section 5.08, Section 6.05 or Section 8.02, the Trustee may require that a satisfactory indemnity bond be furnished for the reimbursement of all expenses to which it may be put and to protect it against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct in connection with any such action. � (m) All moneys received by the Trustee shall, until used or applied or invested as herein provided, be held in trust for the purposes for which they were received but need not be segregated from other funds except to the extent required by law. (n) The Trustee shall have no liability or obligation to the Bond Owners with respect to the payment of debt service by the Authority or with respect to the observance or performance by the Authority of the other conditions, covenants and terms contained in this Indenture, or with respect to the investment of any moneys in any fund or account established, held or maintained by the Authority pursuant to this Indenture or otherwise. (o) The Trustee makes no covenant, representation or warranty concerning the current or future tax status of interest on the Bonds. The Trustee need only keep accurate records of all investments and funds, and send rebate payments to the United States in accordance with explicit instructions from the Authority. (p) The Trustee shall have no responsibility with respect to any information, statement, or recital in any official statement, offering memorandum or any other disclosure material prepared or distributed with respect to the Bonds. (� The Trustee in its capacity as Trustee is authorized and directed to execute the Loan Agreement. Section 6.03. Fees. Char�es and Exnenses of Trustee. The Trustee shall be entitled to payment and reimbursement for reasonable fees for its services rendered hereunder and all advances (with interest on such advances at the maximum rate allowed by law), counsel fees and expenses (including those of in-house counsel to the extent they are for services not duplicative of other counsels' work) and other expenses reasonably and necessarily made or incurred by the Trustee in connection with such services, which i�oa-000i���oo3oVa.aoc payment and reimbursement shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust. Upon the occurrence of an Event of Default hereunder, but only upon an Event of Default, the Trustee shall have a first lien with right of payment prior to payment of any Bond upon the amounts held hereunder for the foregoing fees, charges and expenses incurred by it respectively, which right to payment shall survive the resignation or removal of the Trustee. Section 6.04. Notice to Owners of Default. If an Event of Default hereunder occurs with respect to any Bonds of which the Trustee has been given or is deemed to have notice, as provided in Section 6.02(h), then the Trustee shall promptly given written notice thereof by first-class mail to the Owner of each such Bond, unless such Event of Default shall have been cured before the giving of such notice; provided, however, that unless such Event of Default consists of the failure by the Authority to make any payment when due, the Trustee may elect not to give such notice if and so long as the Trustee in good faith determines that such Event of Default does not materially adversely affect the interests of the Owners or that it is otherwise not in the best interests of the Owners to give such notice. � Section 6.05. Intervention bv Trustee. In any judicial proceeding to which the Authority is a party which, in the opinion of the Trustee, has a substantial bearing on the interests of Owners of any of the Bonds, the Trustee may intervene on behalf of such Owners, and subject to Section 6.02(1), shall do so if requested in writing by the Owners of a majority in aggregate principal amount of such Bonds then Outstanding. Secti4n 6.06. Removal of Trustee. The Owners of a majority in aggregate principal amount of the Outstanding Bonds may at any time, and the Authority may (and at the request of the Agency shall) so long as no Event of Default shall have occurred and then be continuing, remove the Trustee initially appointed, and any successor thereto, by an instrument or concurrent instruments in writing delivered to the Trustee, whereupon the Authority or such Owners, as the case may be, shall appoint a successor or successors thereto; provided that any such successor shall be a financial institution meeting the requirements set forth in Section 6.01. Section 6.07. Resi�nation bv Trustee. The Trustee and any successor Trustee may at any time give written notice of its intention to resign as Trustee hereunder, such notice to be given to the Authority and the Agency by registere.d or certified mail. Upon receiving such notice of resignation, the Authority shall promptly appoint a successor Trustee. Any resignation or removal of the Trustee and appointment of a successor Trustee shall become effective upon acceptance of appointment by the successor Trustee. Upon such acceptance, the Authority shall cause notice thereof to be given by first class mail, postage prepaid, to the Bond Owners at their respective addresses set forth on the Registration Books. ��oa-�ooi���oo3oVa.aoc Section 6.08. Apnointment of Successor Trustee. In the event of the removal or resignation of the Trustee pursuant to Sections 6.06 or 6.07, respectively, with the prior written consent of Agency, the Authority shall promptly appoint a successor Trustee. In the event the Authority shall for any reason whatsoever fail to appoint a successor Trustee within 60 days following the delivery to the Trustee of the instrument described in Section 6.06 or within 60 days following the receipt of notice by the Authority pursuant to Section 6.07, the Trustee may, at the expense of the Authority, apply to a court of competent jurisdiction for the appointment of a successor Trustee meeting the requirements of Section 6.01. Any such successor Trustee appointed by such court shall become the successor Trustee hereunder notwithstanding any action by the Authority purporting to appoint a successor Trustee following the expiration of such sixty-day period. Section 6.09. Mer�er or Consolidation. Any bank or trust company into which the Trustee may be merged or converted or with which either of them may be consolidated or any bank or trust company resulting from any merger, conversion or consolidation to which it shall be a party or any bank or trust company to which the Trustee may sell or transfer all or substantially all of its corporate trust business, provided such bank or trust company shall be eligible under Section 6.01, shall be the successor to such Trustee without the execution or filing of any paper or further act, except as provided in Section 6.10. Section 6.10. Concernin� anv Successor Trustee. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to its predecessor and also to the Authority an instrument in writing accepting such appointment hereunder and thereupon such successor, without any further act, deed or conveyance, shall become fully vested with all the estates, properties, rights, powers, trusts, duties and obligations of its predecessors; but such predecessor shall, nevertheless, on the Request of the Authority, or of the Trustee's successor, execute and deliver an instrument transferring to such successor all the estates, properties, rights, powers and trusts of such predecessor hereunder; and every predecessor Trustee shall deliver all securities and moneys held by it as the Trustee hereunder to its successor. Should any instrument in writing from the Authority be required by any successor Trustee for more fully and certainly vesting in such successor the estate, rights, powers and duties hereby vested or intended to be vested in the predecessor Trustee, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Authority. Section 6.11. Antiointment of Co-Trustee. It is the purpose of this Indenture that there shall be no violation of any law of any jurisdiction (including particularly the law of the State) denying or restricting the right of banking corporations or associations to transact business as Trustee in such jurisdiction. It is recognized that in the case of litigation under this Indenture, and in particular in case of the enforcement of the rights of the Trustee on default, or in the case the Trustee or the Authority deems that ��402-0001\770030v2.doc by reason of any present or future law of any jurisdiction it may not exercise any of the powers, rights or remedies herein granted to the Trustee or hold title to the properties, in trust, as herein granted, or take any other action which may be desirable or necessary in connection therewith, it may be necessary that the Trustee or the Authority appoint an additional individual or institution as a separate co-trustee. The following provisions of this Section 6.11 are adopted to these ends. In the event that the Trustee or the Authority appoints an additional individual or institution as a separate or co-trustee, each and every remedy, power, right, claim, demand, cause of action, immunity, estate, title, interest and lien expressed or intended by this Indenture to be exercised by or vested in or conveyed to the Trustee with respect thereto shall be exercisable by and vest in or conveyed to the Trustee with respect thereto shall be exercisable by and vest in such separate or co-trustee but only to the extent necessary to enable such separate or co-trustee to exercise such powers, rights and remedies, and every covenant and obligation necessary to the exercise thereof by such separate or co-trustee shall run to and be enforceable by either of them. The Trustee shall not be liable for the acts or omissions of any separate or co-trustee appointed hereunder. Should any instrument in writing from the Authority be required by the separate trustee or co-trustee so appointed by the Trustee for more fully and certainly vesting in and conforming to it such properties, rights, powers, trusts, duties and obligations, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Authority. In case any separate trustee or co-trustee, or a successor to either, shall become incapable of acting, resign or be removed, all the estates, properties, rights, powers, trusts, duties and obligations of such separate trustee or co-trustee, so far as permitted by law, shall vest in and be exercised by the Trustee until the appointment of a new trustee or successor to such separate trustee or co-trustee. Section 6.12. Indemnification: Limited Liabilitv of Trustee. The Authority further covenants and agrees to indemnify, defend and save the Trustee and its officers, directors, agents and employees, harmless against any loss, expense and liabilities which it may incur arising out of or in the exercise and performance of its powers and duties hereunder, including the costs of expenses of defending against any claim of liability, but excluding any and all losses, expenses and liabilities which are due to the negligence or intentional misconduct of the Trustee, its officers, directors or employees. No provision in this Indenture shall require the Trustee to risk or expend its own funds or otherwise incur any financial liability hereunder if it shall have reasonable grounds for believing repayment of such funds or adequate indemnity against such liability or risk is not assured to it. The Trustee shall not be liable for any action taken or omitted to be taken by it in accordance with the direction of the Insurer or the Owners of at least 25 percent in aggregate principal amount of Bonds Outstanding relati�g to the time, method and place of conducting any proceeding or remedy available to the Trustee under this Indenture in exercising any trust or power conferred on the Trustee by this Indenture. The obligations ��oz-000i���oo3ova.aoc of the Authority under this Section shall survive the payment and discharge of the Bonds or the resignation or removal of the Trustee under this Indenture. ........................................................... ARTICLE VII .............................. MODIFICATION AND AMENDMENT OF THE .. .. ......... .. . ........... ... ......... .. . ... .............. INDENTURE Section 7.01. Amendment Hereo£ This Indenture and the rights and obligations of the Authority and of the Owners of the Bonds may be modified or amended at any time by a Supplemental Indenture which shall become binding upon adoption, with the written consent of the Insurer (as long as the Insurance Policy is in full force and effect) but without consent of any Bond Owners, to the extent permitted by law but only for any one or more of the following purposes: (a) .... To add to the covenants and agreements of the Authority in this Indenture contained, other covenants and agreements th�reafter to be observed, or to limit or surrender any rights or powers herein reserved to or conferred upon the Authority so long as such limitation or surrender of such rights or powers shall not materially adversely affect the Owners of the Bonds; or (b) .... To make such provisions for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained in this Indenture, or in any other respect whatsoever as the Authority may deem necessary or desirable, provided under any circumstances that such modifications or amendments shall either (i) conform to the original intention of the Authority, or (ii) not materially adversely affect the interests of the Owners of the Bonds in the reasonable judgment of the Authority; or (c) .... To amend any provision hereof relating to the Code, to any extent whatsoever but only if and to the extent such amendment will not adversely affect the exclusion from gross income of interest on any of the Bonds under the Code, in the opinion of Bond Counsel. Except as set forth in the preceding paragraphs of this Section 7.01, this Indenture and the rights and obligations of the Authority and of the Owners of the Bonds may only be modified or amended at any time by a Supplemental Indenture which shall become binding when the written consent of the Insurer (as long as the Insurance Policy is in full force and effect) and of the Owners of a majority in aggregate principal amount of the Bonds then Outstanding are filed with the Trustee. No such modification or amendment shall (i) extend the maturity of or reduce the interest rate on any Bond or otherwise alter or impair the obligation of the Authority to pay the principal, interest or premiums, if any, at the time and place and at the rate and in the currency provided ��oa-000i���oo3oVa.aoc therein of any Bond without the express written consent of the Owner of such Bond or (ii) reduce the percentage of Bonds required for the written consent to any such amendment or modification. In no event shall any Supplemental Indenture modify any of the rights or obligations of the Trustee without its prior written consent. Section 7.02. Effect of Sunnlemental Indenture. From and after the time any Supplemental Indenture becomes effective pursuant to this Article VII, this Indenture 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 Outstanding Bonds, as the case may be, shall thereafter be determined, exercised and enforced hereunder subj ect in all respects to such modification and amendment, and all the terms and conditions of any Supplemental Indenture shall be deemed to be part of the terms and conditions of this Indenture for any and all purposes. Section 7.03. Endorsement or Replacement of Bonds After Amendment. After the effective date of any action taken as hereinabove provided, the Authority may determine that the Bonds shall bear a notation, by endorsement in form approved by the Authority, as to such action, and in that case upon demand of the Owner of any Bond Outstanding at such effective date and presentation of his bond for that purpose at the Trust Office of the Trustee, a suitable notation as to such action shall be made on such Bond at the expense of the Authority. If the Authority shall so determine, new Bonds so modified as, in the opinion of the Authority, shall be necessary to conform to such Bond Owners' action shall be prepared and executed, and in that case upon demand of the Owner of any Bond Outstanding at such effective date such new Bonds shall be exchanged at the Trust Office of the Trustee at the expense of the Authority, for Bonds then Outstanding, upon surrender of such Outstanding Bonds. .............................................. ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES Section 8.01. Events of Default. The following events shall be Events of Default hereunder: 3ond when and as the sarrj��hall become due and payable, whether at maturity as therein expressed, by proceedings for redemption, by declaration or otherwise. ;t on any Bond when and ���uch interest installment shall become due and payable. nts, agreements or conditi(caxjs on its part in this Indenture or in the Bonds contained, other than as referred to in the preceding Paragraphs (a) and (b), for a period of 60 days after written notice, specifying ��o2-000i���ooaoV2.aoc such a failure and requesting that it be remedied has been given to the Authority by the Trustee, or to the Authority and the Trustee by the Owners of a majority in aggregate principal amount of the Outstanding Bonds; provided, however, that if in the reasonable opinion of the Authority the failure stated in such notice can be corrected, but not within such 60 day period, such failure shall not constitute an Event of Default if corrective action is instituted by the Authority within such 60 day period and diligently pursued until such failure is corrected. ization or arrangement un�� the federal bankruptcy laws or any other applicable law of the United States of America, or if a court of competent jurisdiction shall approve a petition, filed with or without the consent of the Authority, seeking reorganization under the federal bankruptcy laws or any other applicable law of the United States of America, or if, under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the Authority or of the whole or any substantial part of its property. defined in, the Loan Agr�e�nent. Section 8.02. Remedies Unon Event of Default. Subject to the provisions of Section 9.03, if any Event of Default shall occur, theri, and in each and every such case during the continuance of such Event of Default, the Trustee may, and at the written direction of the Owners of a majority in aggregate principal amount of the Bonds at the time Outstanding shall, upon notice in writing to the Authority and the Agency, declare the principal of all of the Bonds then Outstanding, and the interest accrued thereon, to be due and payable immediately, and upon any such declaration the same shall become and shall be iinmediately due and payable, anything in this Indenture or in the Bonds contained to the contrary notwithstanding. Any such declaration is subject to the condition that if, at any time after such declaration and before any judgment or decree for the payment of the moneys due shall have been obtained or entered, the Authority or the Agency shall deposit with the Trustee a sum sufficient to pay all the principal of and installments of interest on the Bonds payment of which is overdue, with interest on such overdue principal at the rate borne by the respective Bonds to the extent permitted by. law, and the charges and expenses of the Trustee and its counsel (including the allocated costs and disbursements of in-house counsel to the extent the services of such counsel are not duplicative of services provided by outside counsel), and any and all other Events of Default known to the Trustee (other than in the payment of principal of and interest on the Bonds due and payable solely by reason of such declaration) shall have been made good or cured to the satisfaction of the Trustee or provision deemed by the Trustee to be adequate shall have been made therefor, then, and in every such case, the Owners of not less than a majority in aggregate principal amount of the bonds then Outstanding, by written notice to the Authority, the Agency and the Trustee, or the Trustee if such declaration was made by the �S�oz-000i���oo3oVa.aoc Trustee, may, on behalf of the Owners of all of the Bonds, rescind and annul such declaration and its consequences and waive such Event of Default; but no such rescission and annulment shall extend to or shall affect any subsequent Event of Default, or shall impair or exhaust any right or power consequent thereori. In addition, upon the occurrence and during the continuance of an Event of Default, the Trustee may pursue any available remedy at law or in equity to enforce the payment of the principal of and interest and premium, if any, on the Bonds, and to enforce any rights of the Trustee under or with respect to the Loan Agreement and this Indenture. If an Event of Default shall have occurred and be continuing and if requested so to do by the Owners of a majority in aggregate principal amount of Outstanding Bonds and indemnified as provided in Section 6.02(1), the Trustee shall be obligated to exercise such one or more of the rights and powers conferred by this Article VIII, as the Trustee, being advised by counsel, shall deem most expedient in the interest of the Bond Owners. No remedy by the terms of this Indenture conferred upon or reserved to the Trustee (or to the Owners) is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to any other remedy given to the Trustee or to the Owners hereunder or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any Event of Default shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or acquiescence therein; such right or power may be exercised from time to time as often as may be deemed expedient. Section 8.03. Apnlication of Revenues and Other Funds After Default. All amounts received by the Trustee pursuant to any right given or action taken by the Trustee under the provisions of this Indenture shall be applied by the Trustee in the following order upon presentation of the several Bonds, and the stamping thereon of the amount of the payment if only partially paid, or upon the surrender thereof if fully paid - First, to the payment of the fees, costs and expenses of the Trustee, including reasonable compensation to its agents, attorneys and counsel (including the allocated costs and disbursements of in-house counsel to the extent the services of such counsel are not duplicative of services provided by outside counsel); and Second, to the payment of the whole amount of interest on and principal of the Bonds then due and unpaid, with interest on overdue� installments of principal and interest to the extent permitted by law at the net effective rate of interest then borne by the Outstanding Bonds; provided, however, that in the event such amounts shall be ��oa-000i���ooaova.aoc insufficient to pay in full the full amount of such interest and principal, then such amounts shall be applied in the following order of priority: (i) first, to the payment of all installments of interest on the Bonds then due and unpaid, on a pro rata basis in the event that the available amounts are insufficient to pay all such interest in full, (ii) second, to the payment of p�incipal of all installments of the Bonds then due and payable, on a pro rata basis in the event that the available amounts are insufficient to pay all such principal in full, and (iii) third, to the payment af interest on overdue installments of principal and interest, on a pro rata basis in the event that the available amounts are insufficient to pay all such interest in full. Section 8.04. Power of Trustee to Control Proceedings. Subject to the provisions of Section 9.03, in the event that the Trustee, upon the happening of an Event of Default, shall have taken any action, by judicial proceedings or otherwise, pursuant to its duties hereunder, whether upon its own discretion or upon the request of the Owners of at least a majority in aggregate principal amount of the Bonds then Outstanding, it shall have full power, in the exercise of its discretion for the best interests of the Owners, with respect to the continuance, discontinuance, withdrawal, compromise, settlement or other disposal of such action; provided, however, that the Trustee shall not, unless there no longer continues an Event of Default, discontinue, withdraw, compromise or settle, or otherwise dispose of any litigation pending at law or in equity, if at the time there has been filed with it a written request signed by the Owners of a majority in aggregate principal amount of the Outstanding Bonds hereunder opposing such discontinuance, withdrawal, compromise, settlement or other disposal of such litigation. Any suit, action or proceeding which any Owner shall have the right to bring to enforce any right or � remedy hereunder may be brought by the Trustee for the� equal benefit and protection of all Owners similarly situated and the Trustee is hereby appointed (and the successive respective Owners, by taking and holding the same, shall be conclusively deemed so to have appointed it) the true and lawful attorney-in-fact of the respective Owners for the purpose of bringing any such suit, action or proceeding and to do and per£orm any and all acts and things for an on behalf of the respective Owners as a class or classes, as may be necessary or advisable in the opinion of the Trustee as such attorney-in-fact. Section 8.05. Apnointment of Receivers. Upon the occurrence of an Event of Default hereunder, and upon the filing of a suit or other commencement of judicial proceedings to enforce the rights of the Trustee and of the Owners under this Indenture, the Trustee sha11 be entitled, as a matter or right, to the appointment of a receiver or receivers of the Revenues and other amounts pledged hereunder, pending such proceedings, with such powers as the court making such appointment sha11 confer. ��4�2-4001\77003ov2.doc Section 8.06. Non-Waiver. A waiver of any default or breach of duty or contract by the Trustee or any Owners shall not affect any subsequent default or breach of duty or contract, or impair any rights or remedies on any such subsequent default or breach. No delay or omission of the Trustee or any Ow�er to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default or any acquiescence therein; and every power and remedy conferred upon the Trustee or Owners by the Bond Law or by this Article VIII may be enforced and exercised, upon an Event of Default, from time to time and as often as shall be deemed expedient by the Trustee or the Owners, as the case may be. Section 8.07. Limitation on Ri�hts and Remedies of Owners. No Owner shall have the right to institute any suit, action or proceeding at law or in equity, for any remedy under or upon this Indenture, unless (i) such Owner shall have previously given to the Trustee written notice of the occurrence of an Event of Default; (ii) the Owners of a majority in aggregate principal amount of all the Bonds then Outstanding shall have made written request upon the Trustee to exercise the powers hereinbefore granted or to institute such action, suit or proceeding in its own name; (iii) said Owners shall have tendered to the Trustee indemnity reasonably acceptable to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request; and (iv) the Trustee shall have refused or omitted to comply with such request for a period of 60 days after such written request shall have been received by, and said tender of indemnity shall have been made to, the Trustee. 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 any remedy hereunder; it being understood and intended that no one or more Owners shall have any right in any manner whatever by his or their action to enforce any right under this Indenture, except in the manner herein provided, and that all proceedings at law or in equity to enforce any provision of this Indenture shall be instituted, had and maintained in the manner herein provided and for the equal benefit of all Owners. Nothing in this Section or in any other provision of the Indenture, or in the Bonds, shall affect or impair the obligation of the Authority, which is absolute and unconditional, to pay the interest on and principal of the Bonds to the respective Owners at the respective dates of maturity, as herein provided, out of the Revenues pledged for such payment, or affect or impair the right of action, which is also absolute and unconditional, of such Owners to institute suit to enforce such payment by virtue of the contract embodied in the Bonds and in the Indenture. Section 8.08. Termination of Proceedings. In case the Trustee shall have proceeded to enforce any right under this Indenture by tfie appointment of a receiver or otherwise, and such proceedings shall have been discontinued or abandoned for any ��02-000i���oo3oVa.aoc reason, or shall have been determined adversely, then and in every such case, the Authority, the Trustee and the Owners sha11 be restored to their former positions and rights hereunder, respectively, with regard to the property subject to this Indenture, and all rights, remedies and powers of the Trustee shall continue as if no such proceedings had been taken. ................................................. ARTICLE IX .................................... BOND INSURANCE Section 9.01. Pavments Under the Insurance Policv. As long as the Insurance Policy is in full force and effect, the Authority and the Trustee agree to comply with the following provisions: (a) In the event that, on the second Business Day, and again on the Business Day, prior to an Interest Payment Date, the Trustee has not received sufficient moneys to pay all principal of and interest on the Bonds due on the second following ar following, as the case may be, Business Day, the Trustee shall immediately notify the Insurer or its designee on the same Business Day by telephone or telegraph, confirmed in writing by registered or certified mail, of the amount of the deficiency. (b) If a deficiency exists pursuant to paragraph (a) above and is made up in whole or in part prior to or on the Interest Payment Date, the Trustee shall so notify the Insurer or its designee by telephone or telegraph, promptly canfirmed in writing by registered or certified mail or facsimile transmission. � � (c) If the Trustee has received written notice that any 4wner has been required to disgorge payments of principal or interest on a Bond to a trustee in bankruptcy or creditors or others pursuant to a final judgment by a court of competent jurisdiction that such payment constitutes a voidable preference to such Owner within the meaning of any applicable bankruptcy laws, then the Trustee shall notify the Insurer or its designee of such fact by telephone or telegraphic notice,. confirmed in writing by registered or certified mail. (d) The Trustee is hereby irrevocably designated, appointed, directed and authorized to act as attorney-in-fact for Owners as follows: (1) If and to the extent there is a deficiency in amounts required to pay interest on the Bonds, the Trustee shall (a) execute and deliver to the Insurance Paying Agent, in form satisfactory to the Insurance Paying Agent, an instrument appointing the Insurer as agent for such Owners in any legal proceeding related to the payment of such interest and an assignment to the Insurer of the claims for interest to which such deficiency relates and which are paid by the Insurer, (b) receive as ��02-0001\770o30v2.doc designee of the respective Owners (and not as Trustee) in accordance with the tenor of the Insurance Policy payment from the Insurance Paying Agent with respect to the claims for interest so assigned, and (c) disburse the same to such respective Owners; and (2) If and to the extent of a deficiency in amounts required to pay principal of the Bonds, the Trustee shall (a) execute and deliver to the Insurance Paying Agent in form satisfactory to the Insurance Paying Agent an instrument appointing the Insurer as agent for such Owner in any legal proceeding relating to the payment of such principal and an assignment to the Insurer of any of the Bonds surrendered to the Insurance Paying Agent of so much of the principal amount thereof as has not previously been paid or for which moneys are not held by the Trustee and available for such payment (but such assignment shall be delivered only if payment from the Insurance Paying Agent is received), (b) receive as designee of the respective Owners (and not as Trustee) in accordance with the tenor of the Insurance Policy payment therefor from the Insurance Paying Agent, and (c) disburse the same to such Owners. (e) Payments with respect to claims for interest on and principal of Bonds disbursed by the Trustee from proceeds of the Insurance Policy shall not be considered to discharge the obligation of the Authority with respect to such Bonds, and the Insurer shall become the owner of such unpaid Bonds and claims in accordance with the tenor of the assignment made to it under the provisions of this subsection or otherwise. � (� Irrespective of whether any such assignment is executed and delivered, the Authority hereby agrees for the benefit of the Insurer that, (1) It recognizes that to the extent the Insurer makes payments, directly or indirectly (as by paying through the Trustee), on account of principal of or interest on the Bonds, the Insurer will be subrogated to the rights of such Owners to receive the amount of such principal and interest from the Authority, with interest therefrom as provided and solely from the sources stated in this Indenture and the Bonds; and (2) It will accordingly pay to the Insurer the amount of such principal and interest (including principal and interest recovered under subparagraph (ii) of the first paragraph of the Insurance Policy, which principal and interest shall be deemed past due and not to have been paid), with interest thereon as provided in this Indenture and the Bonds, but only from the sources and in the manner provided herein for the payment of principal of and interest on the Bonds to Owners, and will otherwise treat the Insurer as the owner of such rights to the amount of such principal and interest. �02-0001\77003ov2.doc (g) In connection with the issuance of Parity Debt (as defined in the Loan Agreement), the Authority shall cause the Agency to deliver to the Insurer a copy of the disclosure document, if any, circulated with respect to such Parity Debt. (h) Copies of any amendments made to the documents executed in connection with the issuance of the Bonds which are consented to by the Insurer shall be sent by the Authority to S&P. (i} The Insurer shall receive notice from the Authority of the resignation or removal of the Trustee and the appointment of a successor thereto. (j) The Insurer shall receive copies of all notices required to be delivered to Owners and the Authority shall cause the Agency, on an annual basis, to furnish the Insurer with copies of the Agency's audited financial statements and annual budget. Section 9.02. Notices. As long as the Insurance Policy is in full force and effect, any notice that is required to be given to an Owner or to the Trustee pursuant to this Indenture shall also be provided to the Insurer. All notices required to be given to the Insurer under the Indenture shall be in writing and shall be sent by registered or certified mail addressed to MBIA Insurance Corporation, 113 King Street, Armonk, New York 10504, Attention: Surveillance. Section 9.03. Control of Remedies unon Default. Notwithstanding the provisions of Sections 8.02 and 8.04, as long as the Insurance Policy is in full force and effect, upon the occurrence and continuance of an Event of Default, the Insurer shall be entitled to control and direct the enforcement of all rights and remedies granted to the Owners or the Trustee for the benefit of the Owners under this Indenture; provided, however, the Trustee shall not be liable for any action or inaction taken at the direction of the Insurer. Any acceleration of the Bonds or annulment thereof pursuant to Section 8.02 shall be subject to the prior written consent of the Insurer. No waiver of a default shall be effective without the written consent of the Insurer. Section 9.04. Susnension or Termination of Ri�hts of Insurer. All rights of the Insurer to direct or consent to actions of the Authority, the Agency, the Trustee or the Owners under this Indenture or under the Loan Agreement shall be suspended during any period in which the Insurer is in default in its payment obligations under the Insurance Policy (except to the extent of amounts previously paid by the Insurer and due and owing to the Insurer) and shall be of no force or effect in the event the Insurance Policy is no longer in effect or the Insurer asserts that the Insurance Policy is not in effect. ARTICLE X �4Q2-0�01\77Q030v2.doC BOOK-ENTRY SYSTEM SECTION 10.01 Book-Entry Svstem; Limited Obli�ation of Authoritv. The Bonds shall be initially delivered in the form of a separate single fully registered Bond (which may be typewritten) for each of the maturities of the Bonds. Upon initial delivery, the ownership of each such Bond shall be registered in the registration books kept by the Trustee in the. name of the Nominee as nominee of the Depository. Except as provided in Section 10.03, all of the Outstanding Bonds shall be registered in the registration books kept by the Trustee in the name of the Nominee. With respect to Bonds registered in the registration books kept by the Trustee in the name of the Nominee, the Authority and the Trustee shall have no responsibility or obligation to any Participant or to any person on behalf of which such a Participant holds an interest in the Bonds. Without limiting the immediately preceding sentence, the Authority and the Trustee shall have no responsibility or obligation with respect to (i) the accuracy of the records of the Depository, the Nominee, or any Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any Participant or any other person, other than an Owner as shown in the registration books kept by the Trustee, of any notice with respect to the Bonds, including any notice of redemption, (iii) the selection by the Depository and its Participants of the beneficial interests in the Bonds to be redeemed in the event the Bonds are redeemed in part, or (iv) the payment to any Participant or any other person, other than an Owner as shown in the registration books kept by the Trustee, of any amount with respect to principal of, premium, if any, or interest due with respect to the Bonds. The Authority and the Trustee may treat and consider the person in whose name each Bond is registered in the registration books kept by the Trustee as the holder and absolute owner of such Bond for the purpose of payment of principal, premium, if any, and interest with respect to such Bond, for the purpose of giving notices of redemption and other matters with respect to such Bond, for the purpose of registering transfers with respect to such Bond, and for all other purposes whatsoever. The Trustee shall pay all principal of, premium, if any, and interest due with respect to the Bonds only to or upon the order of the respective Owners, as shown in the registration books kept by the Trustee, or their respective attorneys duly authorized in writing, and all such payments shall be valid and effective to satisfy and discharge fully the Authority's obligations with respect to payment of the principal, premium, if any, and interest due with respect to the Bonds to the extent of the sum or sums so paid. No person other than an Owner, as shown in the registration books kept by the Trustee, shall receive a Bond evidencing the obligation of the Authority to make payments of principal, premium, if any, and interest pursuant to this Indenture. Upon delivery by the Depository to the Trustee and the Authority of written notice to the effect that the Depository has determined to substitute a new nominee in place of the Nominee, and subject to the provisions herein with respect to Record Dates, the word Nominee in this Indenture shall refer to such new nominee of the Depository. i�02-0001\770030v2.doc SECTION 10.02 Renresentation Letter. I� order to qualify the Bonds for the Depository's book-entry system, the Authority shall execute and deliver to such Depository a Representation Letter. The execution and delivery of a Representation Letter shall not in any way impose upon the Authority or the Trustee any obligation whatsoever with respect to persons having interests in the Bonds other than the Owners, as shown on the registration books kept by the Trustee. The Trustee agrees to take all action necessary to continuously comply with all representations made by it in its Representation Letter to the extent that such action is not inconsistent with this Indenture. In addition to the execution and delivery of a Representation Letter, the President, the Secretary and all other officers of the Authority are hereby authorized to take any other actions, not inconsistent with this Indenture, to qualify the Bonds for the Depository's book-entry program. SECTION 10.03 Transfers Outside Book-Entry Svstem. In the event (a) the Depository determines not to continue to act as securities depository for the Bonds, or (b) the Authority determines that the Depository shall no longer so act, then the Authority will discontinue the book-entry system with the Depository. If the Authority fails to identify another qualified securities depository to replace the Depository, then the Bonds so designated shall no longer be restricted to being registered in the registration books kept by the Trustee in the name of the Nominee, but shall be registered in whatever name or names persons transfemng or exchanging Bonds shall designate, in accordance with the provisions of Section 2.09. SECTION 10.04 Pavments to the Nominee. Notwithstanding any other provisions of this Indenture to the contrary, so long as any Bond is registered in the name of the Nominee, all payments with respect to principal, premium, if any, and interest due with respect to such Bond and all notices with respect to such Bond shall be made and given, respectively, as provided in the Representation Letter or as otherwise instructed by the Depository. SECTION 10.05 Initial Denository and Nominee. The initial Depository under this Article shall be The Depository Trust Company, New York, New York. The initial Nominee shall be Cede & Co., as Nominee of The Depository Trust Company, New York, New York. ................................................. ARTICLE XI ..................................... MISCELLANEOUS Section 11.01. Limited Liabilitv of Authoritv. Notwithstanding anything in this Indenture contained, the Authority shall not be required to advance any moneys derived from any source of income other than the Revenues for the payment of the principal of or interest on the Bonds, or any premiums upon the redemption thereof, or for i�402-0001\770030v2.doc the performance of any covenants herein contained (except to the extent any such covenants are expressly payable hereunder from the Revenues or otherwise from amounts payable under the Loan Agreement). The Authority may, however, advance funds for any such purpose, provided that such funds are derived from a source legally available for such purpose and may be used by the Authority for such purpose without incurring indebtedness. � The Bonds shall be revenue bonds, payable exclusively from the Revenues and other funds as in this Indenture provided. The general fund of the Authority is not liable, and the credit of the Authority is not pledged, for the payment of the interest and premium, if any, on or principal of the Bonds. The Owners of the Bonds shall never have the right to compel the forfeiture of any property of the Authority. The principal of and interest on the Bonds, and any premiums upon the reder�ption of any thereof, shall not be a legal or equitable pledge, charge, lien or encumbrance upon any property of the Authority or upon any of its income, receipts or revenues except the Revenues and other funds pledged to the payment thereof as in this Indenture provided. Section 11.02. Benefits of Indenture Limited to Parties. Nothing in this Indenture, expressed or implied, is intended to give to any person other than the Authority, the Trustee, the Agency, the Insurer, and the Owners of the Bonds, any right, remedy or claim under or by reason of this Indenture. Any covenants, stipulations, promises or agreements in this Indenture contained by and on behalf of the Authority shall be for the sole and exclusive benefit of the Trustee, the Agency, the Insurer, and the Owners of the Bonds. Section 11.03. Dischar�e of Indenture. If the Authority shall pay and discharge any or all of the Outstanding Bonds in any one or more of the following ways: (a) By well and truly paying or causing to be paid the principal of and interest and premium, if any, on such Bonds, as and when the same become due and payable; (b) By irrevocably depositing with the Trustee, in trust, at or before maturity, money which, together with the available amounts then on deposit in the funds and accounts established with the Trustee pursuant to this Indenture and the Loan Agreement, is fully sufficient to pay such Bonds, including all principal, interest and premiums, if any; or (c) By irrevocably depositing with the Trustee or any other fiduciary, in trust, non-callable Defeasance Obligations in such amount as an Independent Accountant shall determine will, together with the interest to accrue thereon and available moneys then on deposit in the funds and accounts established with the Trustee pursuant to this Indenture and the Loan Agreement, be fully sufficient to pay and discharge the �402-0001\770030v2.doc indebtedness on such Bonds (including all principal, interest and redemption premiums) at or before their respective maturity dates; and if such Bonds are to be redeemed prior to the maturity thereof notice of such redemption shall have been mailed pursuant to Section 2.03 or provision satisfactory to the Trustee shall have been made for the mailing of such notice, then, at the Request of the Authority, and notwithstanding that any of such Bonds shall not have been surrendered for payment, the pledge of the Revenues and other funds provided for in this Indenture with respect to such Bonds, and all other pecuniary obligations of the Authority under this Indenture with respect to all such Bonds, shall cease and terminate, except only the obligation of the Authority to pay or cause to be paid to the Owners of such Bonds not so surrendered and paid all sums due thereon from amounts set aside for such purpose as aforesaid, and all amounts due the Trustee. Any funds held by the Trustee following any payment or discharge of the Outstanding Bonds pursuant to this Section 11.03 and the paytnent of amounts due the Trustee and the Insurer, shall be paid over to the Authority. Section 11.04. Successor Is Deemed Included in All References to Predecessor. Whenever in this Indenture or any Supplemental Indenture the Authority is named or referred to, such reference shall be deemed to include the successor to the powers, duties and functions, with respect to the management, administration and control of the affairs of the Authority, that are presently vested in the Authority, and all the covenants, agreements and provisions contained in this Indenture by or on behalf of the Authority shall bind and inure to the benefit of its successors whether so expressed or not. Section 11.05. Content of Certificates. Every Certificate of the Authority with respect to compliance with a condition or covenant provided for in this Indenture shall include (i) a statement that the person or persons making or giving such Certificate have read such covenant or condition and the definitions herein relating thereto; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such Certificate are based; (iii) a statement that, in the opinion of the signers, they have made or caused to be made such examination or investigation as is necessary to enable them to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether, in the opinion of the signers, such condition or �covenant has been complied with. Any such certificate made or given by an officer of the Authority may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate may be based, as aforesaid, are erroneous, or in the exercise of reasonable� care should have known that the same were erroneous. Any such certificate or opinion or representation made or given by counsel may be based, insofar as it relates to factual matters, on information with respect to which is in the possession of the Authority, or upon the certificate or opinion of or i�02-0001\770030v2.doc representations by an officer or officers of the Authority, unless such counsel knows that the certificate or opinion or representations with respect �to the matters upon which his certificate, opinion or representation may be based, as aforesaid, are erroneous. Section 11.06. Execution of Documents bv Owners. Any request, consent or other instrument required by this Indenture to be signed and executed by Bond Owners may be in any number of concurrent writings of substantially similar tenor and may be signed or executed by such Bond Owners in person or by their 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 11.06. 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 affidavit of a witness of such execution or 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 or writing acknowledged to him the execution thereof. The ownership of Bonds shall be proved by the Registration Books. Any request, consent or vote of the Owner of any Bond shall bind every future Owner of the same Bond and the Owner of any 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 pursuance of such request, consent or vote. In lieu of obtaining any demand, request, direction, consent or waiver in writing, the Trustee may call and hold a meeting of the Bond Owners upon such notice and in accordance with such rules and obligations as the Trustee considers fair and reasonable for the purpose of obtaining any such action. Section 11.07. Disaualified 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 or held by or for the account of the Agency or the Authority (but excluding Bonds held in any employees' retirement fund) shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, provided, however, only Bonds which a responsible officer of the Trustee actually knows to be so owned or held shall be disregarded. Section 11.08. Waiver of Personal Liabilitv. No officer, agent or employee of the Authority shall be individually or personally liable for the payment of the interest on or principal of the Bonds; but nothing herein contained shall relieve any such officer, agent or employee from the performance of any official duty provided by law. �02-0001\770030v2.doc Section 11.09. Partial Invaliditv. If any one or more of the covenants or agreements, or portions thereof, provided in this Indenture on the part of the Authority (or of the Trustee) to be performed should be contrary to law, then such covenant or covenants, such agreement or agreements, or such portions thereof, shall be null and void and shall be deemed separable from the remaining covenants and agreements or portions thereof and shall in no way affect the validity of this Indenture or of the Bonds; but the Bond Owners shall retain all rights and benefits accorded to them under the Bond Law or any other applicable provisions of law. The Authority hereby declares that it would have entered into this Indenture and each and every other section, paragraph, subdivision, sentence, clause and phrase hereof and would have authorized the issuance of the Bonds pursuant hereto irrespective of the fact that any one or more sections, paragraphs, subdivisions, sentences, clauses or phrases of this Indenture or the application thereof to any person or circumstance may be held to be unconstit�tional, unenforceable or invalid. Section 11.10. Destruction of Cancelled Bonds. Whenever in this Indenture provision is made for the surrender to the Trustee of any Bonds which have been paid or cancelled pursuant to the provisions of this Indenture, the Trustee shall, as pertnitted by law, destroy such cancelled Bonds and, upon Request of the Authority, provide to the Authority a certificate of destruction duly executed by the Trustee, and the Authority shall be entitled to rely upon any statement of fact contained in such certificate with respect to the destruction of any such Bonds therein referred to; provided, however, that the Authority shall reimburse the Trustee for the Trustee's costs incurred in connection with the microfilming or the required permanent recording, if any, related thereto. Section 11.11. Funds and Accounts. Any fund or account required by this Indenture to be established and maintained by the Authority or the Trustee may be established and maintained in the accounting records of the Authority or the Trustee, as the case may be, either as a fund or an account, and may, for the purpose of such records, any audits thereof and any reports or statements with respect thereto, be treated either as a fund or as an account. All such records with respect to all such funds and accounts held by the Authority shall at all times be maintained in accordance with generally accepted accounting principles and all such records with respect to all such funds and accounts held by the Trustee shall be at all times maintained in accordance with corporate trust industry practices. Any fund or account required by this. Indenture to be established and maintained by the Authority or the Trustee may be established and maintained in the form of multiple funds, accounts or sub-accounts therein. Section 11.12. Pavment on Busi�ess Days. Whenever in this Indenture any amount is required to be paid on a day which is not a Business Day, such payment shall be required to be made on the Business Day immediately following such day, provided that interest shall not accrue from and after such day. , �402-0001\770030v2.doC Section 11.13. Notices. Any notice, request, demand or other communication under this Indenture shall be given by first class mail or personal delivery to the party entitled thereto at its address set forth below, or by telecopy or other form of telecommunication, confirmed by telephone at its numb�r set forth below. Notice shall be effective either (i) upon transmission by telecopy or other form of telecommunication, (ii) upon receipt after deposit in the United States mail, postage prepaid, or (iii) in the case of personal delivery to any person, upon actual receipt. The Authority, the Agency or the Trustee may, by written notice to the other parties, from time to time modify the address or number to which communications are to be given hereunder. If to the Authority: Palm Desert Financing Authority 73-510 Fred Waring Drive Palm Desert, California 92260 Attention: Chief Administrative Officer Telecopier: (760) 340-0574 If to the Agency: Palm Desert Redevelopment Agency 73-510 Fred Waring Drive , Palm Desert, California 92260 Attention: Executive Director Telecopier: (760) 340-0574 If to the Trustee: BNY Western Trust Company 700 South Flower Street, Suite 500 Los Angeles, California 90017-4104 Attention: Corporate Trust 17epartment Telecopier: (213) 630-6215 If to the Insurer: MBIA Insurance Corporation 113 King Street Armonk, New York 10504 Attention: Insured Portfolio Management Group Telecopier: (914) 765-3161 � The Authority and the Trustee may designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Notices to the Insurer shall be governed by Section 9.02. Section 11.14. Unclaimed Monevs. Anything in this Indenture to the contrary notwithstanding, any moneys held by the Trustee in trust for the payment and discharge of any of the Bonds or the interest thereon which remain unclaimed for two years after the date when such Bonds or the interest thereon have become due and payable, either at their stated maturity dates or by call for earlier redemption, if such �02-0001\770030v2.doc moneys were held by the Trustee at such date, or for two years after the date of deposit of such moneys if deposited with the Trustee after said date when such Bonds or the interest thereon become due and payable, shall, at the Request of the Authority, be repaid by the Trustee to the Authority, as its absolute property and free from trust, and the Trustee shall thereupon be released and discharged with respect thereto and the Owners shall look only to the Authority for the payment of such Bonds; provided, however, that before making any such payment to the Authority, the Trustee shall, at the Request and at the expense of the Authority, cause to be mailed to the Owners of all such Bonds, at their respective addresses appearing on the Registration Books, a notice .that said moneys remain unclaimed and that, after a date named in said notice, which date shall not be less than thirty (30) days after the date of mailing of such notice, the balance of such moneys then unclaimed will be returned to the Authority. Section 11.15. Governin� Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. i�02-0001\770030v2.doc IN WITNESS WHEREOF, the PALM DESERT FINANCING AUTHORITY has caused this Indenture to be signed in its name by its duly authorized officer and BNY WESTERN TRUST COMPANY, in token of its acceptance of the trust created hereunder, has caused this Indenture to be signed in its corporate name by its officer identified below, all as of the day and year first above written. PALM DESERT FINANCING AUTHORITY I� Chief Administrative Officer BNY WESTERN TRUST COMPANY, as Trustee : Authorized Officer ��oa-000i���oo3ovz.aoc EXHIBIT A [FORM OF BOND] No. PALM DESERT FINANCING AUTHORITY TAX ALLOCATION REFUNDING REVENUE BOND , ►, (PROJECT AREA NO. 1, AS AMENDED) 2004 SERIES A RATE OF INTEREST: MATURITY DATE: ORIGINAL ISSUE DATE: CUSIP: April 1, REGISTERED OWNER: CEDE & CO. PRINCIPAL AMOUNT: EXCEPT AS OTHERWISE PROVIDED IN ARTICLE X OF THE 1NDENTURE DESCRIBED HEREIN, THIS GLOBAL CERTIFICATE MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO ANOTHER NOMINEE OF THE DEPOSITORY (AS DEFII�ED IN SAID INDENTURE) OR TO A SUCCESSOR DEPOSITORY OR TO A NOMINEE OF A SUCCESSOR DEPOSITORY. The PALM DESERT FINANCING AUTHORITY, a joint powers authority organized and existing under the laws of the State of California (the "Authority"), for value received, hereby promises to pay (but only out of the Revenues, as defined in the Indenture hereinafter referred to, and certain other moneys) to the Registered Owner identified above or registered assigns (the "Registered Owner"), on the Maturity Date identified above or any earlier redemption date, the Principal Amount identified above in lawful money of the United States of America; and to pay interest thereon at the Rate of Interest identified above in like money from the Interest Payment Date (as hereinafter defined) next preceding the date of authentication of this Bond (unless this Bond is authenticated on or before an Interest Payment Date and after the fifteenth calendar day of the month preceding such Interest Payment Date, in which event it shall bear interest from such Interest Payment Date, or unless this Bond is authenticated on or prior to A-1 �6402-0001\770030v2.doC September 15, 2004, in which event it shall bear interest from the Original Issue Date identified above; provided, however, that if, at the time of authentication of this Bond, interest is in default on this Bond, this Bond shall bear interest from the Interest Payment Date to which interest hereon has previously been paid or made available for payment), payable semiannually on April 1 and October 1 in each year, commencing October 1, 2004 (the "Interest Payment Dates") until payment of such Principal Amount in full. The Principal Amount hereof is payable upon presentation hereof upon maturity or earlier redemption at the corporate trust office (the "Trust Office") of BNY Western Trust Company (the "Trustee") in Los Angeles, California. Interest hereon is payable by check or draft of the Trustee mailed by first class mail on each Interest Payment Date to the Registered Owner hereof at the address of the Registered Owner as it appears on the registration books of the Trustee as of the fifteenth calendar day of the month preceding such Interest Payment Date (except in the case of a Registered Owner of at least $1,000,000 in aggregate principal amount, such payment may, at such Registered Owner's option, be made by wire transfer of immediately available funds in accordance with written instructions provided by such Registered Owner prior to the fifteenth calendar day of the month preceding such Interest Payment Date). � This Bond is one of a duly authorized issue of bonds of the Authority designated the "Palm Desert Financing Authority, Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended), 2444 Series A" (the "Bonds"), limited in principal amount to $ secured by an Indenture of Trust (the "Indenture"), dated as of June 1, 2004, by and between the Authority and the Trustee. Reference is hereby made to the Indenture and all indentures supplemental thereto fo� a description of the rights thereunder of the owners of the Bonds, of the nature and extent of the Revenues (as that term is defined in the Indenture), of the rights, duties and immunities of the Trustee and of the rights and obligations of the Authority thereunder; and all of the terms of the Indenture are hereby incorporated herein and constitute a contract between the Authority and the Registered Owner hereof, and to all of the provisions of which Indenture the Registered Qwner hereof, by acceptance hereof, assents and agrees. The Bonds are authorized to be issued pursuant to the provisions of the Marks- Roos Loca1 Bond Pooling Act of 1985, constituting Article 4, Chapter 5, Division 7, Title 1 of the Government Code of the State of California (the "Act"). The Bonds are special obligations of the Authority and, as and to the extent set forth in the Indenture, are payable solely from and secured by a first lien on and pledge of the Revenues and certain other moneys and securities held by the Trustee as provided in the Indenture. All of the Bonds are equally secured by a pledge of, and charge and lien upon, all of the Revenues and such other moneys and securities, and the Revenues and such other moneys and securities constitute a trust fund for the security and payment of the principal of and interest on the Bonds. The full faith and credit of the Authority is not pledged for the I� �L6402-Q001\770030v2.doc payment of the principal of or interest or premium (if any) on the Bonds. The Bonds are not secured by a legal or equitable pledge of, or charge, lien or encumbrance upon, any of the property of the Authority or any of its income or receipts, except the Revenues and such other moneys and securities as provided in the Indenture. The Bonds have been issued for the purpose of making a loan (the "Loan") to the Palm Desert Redevelopment Agency (the "Agency") to finance and refinance certain public capital improvements with respect to a redevelopment project known and designated as Project Area No. 1, As Amended. The Loan has been made by the Authority to the Agency pursuant to a Loan Agreement dated as of June l, 2004 (the "Loan Agreement"), by and among the Agency, the Authority and the Trustee. The Bonds are subject to redemption prior to their respective maturity dates as a whole, or in part among maturities on a pro rata basis as designated by the Authority and by lot within a maturity, from prepayments of the Loan made at the option of the Agency pursuant to the Loan Agreement, on any Interest Payment Date on or after April l, 2014, at the following respective redemption prices (expressed as percentages of the principal amount of the Bonds to be redeemed), plus accrued interest thereon to the date of redemption: A-3 �6402-0001\770030v2.doC Redemption Date Redemption Price April 1, 2014 or October 1, 2014 102% April 1, 2015 or October 1, 2015 101 April 1, 2016 or Thereafter . 100 The Bonds maturing on April 1, , and April 1, are subject to mandatory sinking fund redemption by lot, at a redemption price equal to the principal amount thereof to be redeemed, without premium, on April 1 of each year commencing April 1, , and April 1, , respectively, in the aggregate respective principal amounts set forth in the Indenture; provided, however, that in lieu of,redemption thereof such Bonds may be purchased by the Agency pursuant to the Loan Agreement. The Trustee on behalf and at the expense of the Authority shall mail (by first class mail) notice of any redemption to the respective owners of any Bonds designated for redemption, at their respective addresses appearing on the registration books maintained by the Trustee, to the Securities Depositories and to one or more Information Services (as such terms are defined in the Indenture), at least 30 but not more than 60 days prior to the redemption date; provided, however, that neither failure �to receive any such notice so mailed nor any defect therein shall affect the validity of the proceedings for the redemption of such Bonds or the cessation of the accrual of interest thereon. Such notice shall state the date of the notice, the redemption date, the redemption place and the redemption price and shall designate the CUSIP numbers, the serial numbers of each maturity or maturities (except that if the event of redemption is of all of the Bonds of such maturity or maturities in whole, the Trustee shall designate such maturities or the maturity in whole without referencing each individual number) of the Bonds to be redeemed, and shall require that such Bonds be then surrendered at the Trust Office for redemption at the redemption price, giving notice also that further interest on such Boncls will not accrue from and after the redemption date. Subject to the �imitations and upon payment of the charges, if any, provided in the Indenture, this Bond may be exchanged at the Trust Office for a like aggregate principal amount and maturity of fully registered Bonds of other authorized denominations. This Bond is transferable by the Registered Owner hereof, in person or by his attorney duly authorized in writing, at the Trust Office, but only in the manner, subject to the limitations and upon payment of the charges provided in the Indenture, and upon surrender and cancellation of this Bond. Upon such transfer a new fully registered Bond or Bonds, of authorized denomination or denominations, for the same aggregate principal amount and of the same maturity will be issued to the transferee in exchange therefor. .. �&402-0001\770030v2.doC The Trustee.shall not be required to register the transfer or exchange of any Bond during the 15-day period preceding the selection of Bonds for redemption or any Bond selected for redemption. The Authority and the Trustee may treat the Registered Owner hereof as the absolute owner hereof for all purposes, and the Authority and the Trustee shall not be affected by any notice to the contrary. The Indenture and the rights and obligations of the Authority and of the owners of the Bonds and of the Trustee may be modified or amended from time to time and at any time in the manner, to the extent, and upon the tertns provided in the Indenture; provided that no such modification or amendment shall (a) extend the maturity of or reduce the interest rate on any Bond or otherwise alter or impair the obligation of the Authority to pay the principal, interest or premiums at the time and place and at the rate and in the currency provided therein of any Bond without the express written consent of the owner of such Bond, (b) reduce the percentage of Bonds required for the written consent to any such amendment or modification, or (c) without its written consent thereto, modify any of the rights or obligations of the Trustee, all as more fully set forth in the Indenture. It is hereby certified that all things, conditions and acts required to exist, to have happened and to have been performed precedent to and in the issuance of this Bond do exist, have happened and have been performed in due time, form and manner as required by the Constitution and statutes of the State of California and by the Act (as such term is defined on the reverse side hereo� and the amount of this Bond, together with all other indebtedness of the Authority, does not exceed any limit prescribed by the Constitution or statutes of the State of California or by the Act. This Bond shall not be entitled to any benefit under the Indenture (as such term is defined on the reverse side hereo�, or become valid or obligatory for any purpose, until the certificate of authentication hereon shall have been signed by the Trustee. I� �6402-0001\770030v2.doc IN WITNESS WHEREOF, the Authority has caused this Bond to be executed in its name and on its behalf by the facsimile signatures of its President and Secretary and its seal to be reproduced hereon all as of the Original Issue Date identified above. PALM DESERT FINANCING AUTHORITY : Yresident [SEAL] Attest: Secretary .� �6402-0001\77003ov2.doc [FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION] This is one of the Bonds described in the within-mentioned Indenture and registered on the Bond Registration Books. Date: BNY W estern Trust Company, as Trustee : Authorized Signatory [FORM OF ASSIGNMENT] For value received the undersigned do(es) hereby sell, assign and transfer unto whose tax identification number is , the within-mentioned registered Bond and hereby irrevocably constitute(s) and appoint(s) attorney to transfer the same on the books of the Trustee with full power of substitution in the premises. Dated: Signature guaranteed: NOTE: Signature(s) must be guaranteed by a member of an institution which is a participant in the Securities Transfer Agent Medallion Program (STAMP) or other similar program. NOTE: The signature(s) on this Assignment must correspond with the name(s) as written on the face of the within Bond in every particular without alteration or enlargement or any change whatsoever. STATEMENT OF INSURANCE MBIA Insurance Corporation (the "Insurer") has issued a policy containing the following provisions, such policy being on file at BNY Western Trust Company, Los Angeles, California. 1�5] �6402-0001\770030v2.doc The Insurer, in consideration of the payment of the premium and subj ect to the terms of this policy, hereby unconditionally and irrevocably guarantees to any owner, as hereinafter defined, of the following described obligations, the full and complete payment required to be made by or on behalf of the Authority to BNY Western Trust Company, Los Angeles, California or its successor (the "Paying Agent") of an amount equal to (i) the principal of (either at the stated maturity or by any advancement of maturity pursuant to a mandatory sinking fund payment) and interest on, the Obligations (as that term is defined below) as such payments shall become due but shall not be so paid (except that in the event of any acceleration of the due date of such principal by reason of mandatory or optional redemption or acceleration resulting from default or otherwise, other than any advancement o� maturity pursuant to a mandatory sinking fund payment, the payments guaranteed hereby shall be made in such amounts and at such times as such payments of principal would have been due had there not been any such acceleration); and (ii) the reimbursement of any such payment which is subsequently recovered from any owner pursuant to a final judgment by a court of competent jurisdiction that such payment constitutes an avoidable preference to such owner within the meaning of any applicable bankruptcy law. The amounts referred to in clauses (i) and (ii) of the preceding sentence shall be referred to herein collectively as the "Insured Amounts." "Obligations" shall mean: $ Palm Desert Financing Authority Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended) 2004 Series A Upon receipt of telephonic or telegraphic notice, such notice subsequently confirmed in writing by registered or certified mail, or upon receipt of written notice by registered or certified mail, by the Insurer from the Paying Agent or any owner of an Obligation the payment of an Insured Amount for which is then due, that such required payment has not been made, the Insurer on the due date of such payment or within one business day after receipt of notice of such nonpayment, whichever is later, will make a deposit of funds, in an account with State Street Bank and Trust Company, N.A., in New York, New York, or its successor, sufficient for the payment of any such Insured Amounts which are then due. Upon presentment and surrender of such Obligations or presentment of such other proof of ownership of the Obligations, together with any appropriate instruments of assignment to evidence the assignment of the Insured Amounts due on the Obligations as are paid by the Insurer, and appropriate instruments to effect the appointment of the Insurer as agent for such owners of the Obligations in any legal proceeding related to payment of Insured Amounts on the Obligations, such instruments . ;� �6402-0001\770030v2.doC being in a form satisfactory to State Street Bank and Trust Company, N.A., State Street Bank and Trust Company, N.A. shall disburse to such owners or the Paying Agent payrnent of the Insured Amounts due on such Obligations, less any amount held by the Paying Agent for the payment of such Insured Amounts and legally available therefor. This policy does not insure against loss of any prepayment premium which may at any time be payable with respect to any Obligation. As used herein, the term "owner" shall mean the registered owner of any Obligation as indicated in the books maintained by the Paying Agent, the Authority or any designee of the Authority for such purpose. The term "owner" shall not include the Authority or any party whose agreement with the Authority constitutes the underlying security for the Obligations. Any service of process on the Insurer may be made to the Insurer at its offices located at 113 King Street, Armonk, New York 10504 and such service of process shall be valid and binding. This policy is non-cancelable for any reason. The premium on this policy is not refundable for any reason including the payment prior to maturity of the Obligations. In the event the Insurer were to become insolvent, any claims arising under a policy of financial guaranty insurance are excluded from coverage by the California Insurance Guaranty Association, established pursuant to Article 14.2 (commencing with Section 1063) of Chapter 1 of Part 2 of Division 1 of the California lnsurance Code. MBIA INSURANCE CORPORATION .. �6402-0001\770030v2.doc Jones Hall D�aft 5/12104 PRELIMINARY OFFICIAL STATEMENT DATED NEW ISSUE FULL BOOK ENTRY , 2004 Ratings: Moody's: _ Fitch: _" Insured (See "RATINGS" herein) In the opinion of Richards, Watson & Gershon, A Professional Corporatron, Los Angeles, Califomia, Bond Counsel, under existing law, the interest on the Bonds is exempt from persona! income taxes of the Sfate of California and, assuming compliance with the tax covenants described herein, inferesf on the Bonds is excluded pursuant to section 103(aJ of the Interna! Revenue Code of 1986, as amended, from the gross income of fhe owners thereof for federa! income tax purposes and is not an item of tax preference for purposes of the federa/ alternafive minimum fax. See, however, "CONCLUD/NG INFORMATION — Tax-Exempt Status of the Bonds" herein regarding cerfain other fax consideratrons. $ * PALM DESERT FINANCING AUTHORITY TAX ALLOCATION REFUNDING REVENUE BONDS (PROJECT AREA NO. 1, AS AMENDED) 2004 SERIES A Dated: Date of Delivery Due: April 1, as shown on the inside cover hereof The Palm Desert Financing Authority, Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended) 2004 Series A(the "Bonds") will be issued by the Palm Desert Financing Authority (the "Authority") under an Indenture of Trust, dated as of June 1, 2004 (the "Indenture"), by and between the Authority and BNY Western Trust Company, Los ,, Angeles, California as trustee for the Bonds (the "Trustee"). The proceeds of the Bonds will be disbursed to make a loan.;; (the "Loan") to the Palm Desert Redevelopment Agency (the "Agency") pursuant to a Project Area No. 1, As Amended, Loan Agreement dated as of June 1, 2004 (the "Loan Agreement") by and among the Authority, the Agency and the Trustee. Th'e Agency will use proceeds of the Loan to refinance the Agency's obligations under a loan agreement entered into in 1995 and to finance certain redevelopment activities within or of benefit to the Project Area and to pay costs of issuance of the Bonds. The Bonds will be issued as fully registered instruments without coupons, in the denomination of $5,000 or any integral multiple thereof, in book-entry form, initially registered in the name of Cede & Co., as nominee of The Depository Trust Company, New York, New York ("DTC"). Purchasers will not receive physical certificates representing their interest in the Bonds. For so long as the Bonds are registered in the name of Cede & Co., all payments of principal and interest on the Bonds will be made to DTC, which, in turn, is obligated to remit such principal and interest to DTC Participants (defined herein} for subsequent disbursement to the Beneficial Owners (defined herein) of the Bonds. See "THE BONDS — Book- Entry Only System" herein. The principal or redemption price of each Bond will be payable upon the presentation and surrender of such Bond, when due or redeemed, as applicable, at the corporate trust office of the Trustee. Interest on the Bonds will be payable on April 1 and October 1 of each year (the "Interest Payment Dates"), comrnencing October 1, 2004, by check or draft, rnailed on the Interest Payment Date to each Owner of the Bonds as of the Record Date preceding such Interest Payment Date, except the Trustee will, at the written request of any Owner of $1,000,000 or more in aggregate principal amount of Bonds, make payments of interest on such Bonds on the Interest Payment Date by wire transfer to the account in the United States designated by such Owner to the Trustee in writing as described herein. See "Appendix H-- Book-Entry System" herein. ' The Bonds are subject to optional redemption and mandatory sinking fund redemption as described herein. The Bonds are special obligations of the Authority payable frorn and secured by Revenues (as defined herein), consisting primarily of amounts payable by the Agency under the Loan Agreement. The Loan Agreement is secured by and payable from Tax Revenues, as defined herein. The Agency currently has outstanding, and may, pursuant to the terms of the Loan Agreement and the Indenture, issue additional obligations secured by Tax Revenues on a parity with the Loan (the "Parity DebY'). See "SECURITY FOR THE BONDS" herein. [IN$URER LOGO] Payment of the principal of and interest on the Bonds when due will be insured by a municipal bond insurance policy to be issued by simultaneously with the delivery of the Bonds. See "BOND INSURANCE" herein. The Bonds are not a debt of the City of Palm Desert (the "City") or-of the State of California or any of its political subdivisions (other than the Authority), and neither the City nor the State of California nor any of its political subdivisions (other than the Authority) is liable therefor. The Loan is not a debt of the Authority or of the State of California or any of its political subdivisions (other than the Agency), and neither the Authority nor the State of California nor any of its political subdivisions (other than the Agency) is liable therefor. Neither the Bonds nor the Loan constitutes an indebtedness within the meaning of any constitutional or statutory debt limitation or restriction. Neither the members of the Authority nor of the Agency nor any persons executing the Bonds or the Loan Agreement are liabie personally thereon. In no event will the obligations of the Agency under the Loan Agreement be payable out of any funds or properties of the Agency other than Tax Revenues (as defined herein) set forth in the Loan Agreement. The Bonds are offered when, as and if issued and accepted by the Underwriters, subject to the approval as to legality by Richards, Watson & Gershon, A Professional Corporation, Los Angeles, California, Bond Counsel. Certain legal matters will be passed on for the Underwriter by Jones Hall, A Professional Law Corporation, San Francisco, California, California. It is anticipated that the Bonds will be available for delivery in New York, New York through the facilities of DTC on or about , 2004. CITIGROUP The date of this Official Statement is , 2004. $ * PALM DESERT FINANCING AUTHORITY TAX ALLOCATION REFUNDING REVENUE BONDS (PROJECT AREA NO. 1, AS AMENDED) 2004 SERIES A Maturity Dates, Principal Amounts, Interest Rates and Yields $ Serial Bonds (CUSIP Root: Maturity Date Principal Interest (April1l Amount Rate Yield CUSIP °/a Term Bond due April 1, , Yield %(CUSIP: ) PALM DESERT FINANCING AUTHORITY PALM DESERT REDEVELOPMENT AGENCY CITY OF PALM DESERT PALM DESERT FINANCtNG AUTHURITY COMMISSION MEMBERS AND STAFF Robert A. Spiegel, President Buford Crites, Vice President Jean M. Benson, Commissioner James Ferguson, Commissioner Richard Kelly, Commrssioner Carlos L. Ortega, Chief Administrative Officer CITY COUNCIUAGENCY MEMBERS Robert A. Spiegel, Mayor/Chairman Buford Crites, Mayor Pro TemNice Chairman Jean M. Benson, Councilmember/Member James Ferguson, Councilmember/Member Richard Kelly, Councilmember/Member AGENCY STAFF Carlos L. Ortega, City Manager/Executive Direcfor Justin McCarthy, Assistanf Cify Manager/Redevelopment Homer Croy, Assistanf City Manager Development Services Sheila R. Gilligan, Assistant City Manager Community Services Paul S. Gibson, Finance Director/Treasurer David L. Yrigoyen, Direcfor of Redevelopmenf Teresa L. La Rocca, Direcfor of Housing Rachelle Klassen, City Clerk Dennis M. Coleman, Redevelopment Finance Manager Jose Luis Espinoza, Assistant Finance Director Janet M. Moore, Senior Management Analysf SPECIAL SERVICES Bond Counsel Richards, Watson & Gershon, A Professional Corporation Los Angeles, California Disctosure Counsel Fulbright & Jaworski L.L.P. Los Angeles, California Financial Advisor MuniSoft Modesto, California Fiscal Consultant Rosenow Spevacek Group, lnc. Santa Ana, California GENERAL INFORMATION ABOUT THIS OFFICIAL STATEMENT Use of Official Statement. This Official Statement is submitted in connection with the offer and sale of the Bonds referred to herein and may not be reproduced or used, in whole or in part, for any other purpose. This Official Statement is not to be construed as a contract with the purchasers of the Bonds. Estimates and Forecasts. When used in this Official Statement and in any continuing disclosure by the Agency in any press release and in any oral statement made with the approval of an authorized officer of the Agency or any other entity described or referenced herein, the words or phrases "will likely result," "are expected to", "will continue", "is anticipated", "estimate", "project," "forecast", "expecY', "intend" and similar expressions identify "forward looking statements." Such statements are subject to risks and uncertainties that could cause actual results to differ materially from those contemplated in such forward- looking statements. Any forecast is subject to such uncertainties.. Inevitably, some assumptions used to develop the forecasts will not be realized and unanticipated events and circumstances may occur. Therefore, there are likely to be differences between forecasts and actual results, and those differences may be material. The information and expressions of opinion herein are subject to change without notice, and neither the delivery of this Official Statement nor any sale made hereunder shall, under any circumstances, give rise to any implication that there has been no change in the affairs of the Agency or any other entity described or referenced herein since the date hereof. Limit of Offering. No dealer, broker, salesperson or other person has been authorized by the Agency to give any information or to make any representations in connection with the offer or sale of the Bonds other than those contained herein and if given or made, such other information or representation must not be relied upon as having been authorized by the Agency or the Underwriter. This Official Statement does not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of the Bonds by a person in any jurisdiction in which it is unlawful for such person to make such an offer, solicitation or sale. Involvement of Underwriter. The Underwriter has provided the following sentence for inclusion in this Official Statement: The Underwriter has reviewed the information in this Official Statement in accordance with and as part of its responsibilities to investors under the federal securities laws as applied to the facts and circumstances of this transaction, but the Underwriter does not guarantee the accuracy or completeness of such information. The information and expressions of opinions herein are subject to change without notice and neither delivery of this Official Statement nor any sale made hereunder shall, under any circumstances, create any implication that there has been no change in the affairs of the Agency any other entity described or referenced herein since the date hereof. All summaries of the documents referred to in this Official Statement are made subject to the provisions of such documents, respectively, and do not purport to be complete statements of any or all of such provisions. Stabilization of Prices. In connection with this offering, the Underwriter may overallot or effect transactions which stabilize or maintain the market price of the Bonds at a level above that which might otherwise prevail in the open market. Such stabilizing, if commenced, may be discontinued at any time. The Underwriter may offer and sell the Bonds to certain dealers and others at prices lower than the public offering prices set forth on the cover page hereof and said public offering prices may be changed from time to time by the Underwriter. � THE BONDS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, IN RELIANCE UPON AN EXCEPTION FROM THE REGISTRATION REQUIREMENTS CONTAINED IN SUCH ACT. THE BONDS HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES LAWS OF ANY STATE. TABLE OF CONTENTS Constitutional Challenges to Property INTRODUCTION � Tax System .................................................. 21 PLAN OF FINANCE ....................................4 Property Tax Collection Procedures........... 21 SOURCES AND USES OF FUNDS ............5 Supplemental Assessments ........................ 22 DEBT SERVICE SCHEDULE ......................6 �n t ryIP operty Tax ....,.............................. 22 THE BONDS ...............................................7 Business lnventory and Description of the Bonds 7 Replacement Revenue ................................ 23 THE BONDS Error! Bookmark not defined. Proposition 8 ................................................ 23 Redemption of the Bonds ..............................7 Future Initiatives •.• 23 ....................................... BOND lNSURANCE ...................................9 THE PROJECT AREA .............................. 23 SECURITY FOR THE BONDS ....................9 The Original Project Area............................23 Revenues and Loan Agreement ....................9 The Added Territory .................................... 24 Tax Allocation Financing ................................9 Limitations and Requirements of Ailocation �f Taxes .......................................10 the Redevelopment Plan............................. 25 Tax Revenues ..............................................11 Added Territory Projected to Reach Limit Pass-Through Agreements and Housing in Fiscal Year 2026-2 .................................. 26 Set-Aside ......................................................11 TAX REVENUES................................................26 Parity Debt and Existing Parity Lien............12 Schedule of Historical Tax Revenues ........ 28 Other Agency Obligations ............................12 To Fifteen Tax a ers 30 p . p Y ................................ Issuance of Additional Parity Debt ..............12 Filing of Statement of Indebtedness........... 30 Reserve Fund ...............................................13 Housin Set-Aside Re uirements 31 9 q .............. RISK FACTORS .......................................14 PALM DESERT FINANCING AUTHORI7Y...... 31 Bonds Are Limited Obligations ....................14 PALM DESERT REDEVELOPMENT AGENCY32 Reduction of Tax Revenues ........................15 Authority and Management......................... 32 Reduction in Inflationary Rate .....................16 Agency Powers............................................ 34 Assessment Appeals ...................................16 Financial Information ................................... 35 Proposition 8 Adjustments ...........................16 Pass-Through Agreements......................... 35 Development Risks ......................................17 Regulatory Issues........................................ 35 Levy and Collection ......................................17 VERIFICATION OF MATHEMATICAL Educational Revenue Augmentation Fund .17 COMPUTATIONS ............................................. 35 State Fiscal Condition ..................................18 CONCLUDING INFORMATION ........................ 35 Bankruptcy and Foreclosure ........................18 Continuing Disclosure 35 Loss of Tax Exemption on the Bonds .........19 Underwriting ................................................. 36 PROPERTY TAXATION IN CA�IFORNIA .19 Legal Opinion ............................................... 36 Constitutional Amendments Affecting Tax-Exempt Status of the Bonds ................ 36 TaxRevenues ..............................................19 No Litigation.......,.........................................38 Implementing Legislation .............................20 Ratings.........................................................38 Miscellaneous.............................................. 38 APPENDIX A APPENDIX B APPENDIX C APPENDIX D APPENDIX E APPENDIX F APPENDIX G APPENDIX H FISCAL CONSULTANT'S REPORT FORM OF OPINION OF BOND COUNSEL AGENCY AUDITED FINANGIAL STATEMENTS FOR FISCAL YEAR ENDED JUNE 30, 2003 CITY OF PALM DESERT GENERAL INFORMATION SUMMARY OF PRINCIPAL LEGALbOCUMENTS FORM OF MUNICIPALBOND IN5URANCE POLICY FORM OF CONTINUING DISCOSURE AGREEMENT BOOK-ENTRY SYSTEM OFFICIAL STATEMENT $ * PALM DESERT FINANC{NG AUTHOR{TY 7AX A�LOCATION REFUNDING REVENUE BONDS (PROJEGT AREA NO. 1, AS AMENDED) 2004 SERIES A � This Official Statement, including the cover page, is provided to furnish information in connection with the safe by -the Palm Desert Financing Authority (the `°Authority") of $ * aggregate principal amount of Palm Desert Financing Authority, Tax Allocation Refunding Revenue Bonds (Rroject Area No. 1, As Amended) 2004 Series A(the "Bonds"). For the definitions of certain capitalized terms used and not otherwise def'sned, see "APPENDIX E— SUMMARY OF PRINCIpAL I�EGAL DOCUMENTS." Any statements made in this Officia! Statement i�volving matters of opinion or of estimates, whether or not so expressly stated, are set forth as such and not as represenfations of fact, and no representation is made that any of the estimates will be realized. Definitions of certain terms used herein and not defined herein have the meaning set forth in the Indenture. See "APPENDlX E— Summary of Principal legal Documents." INTRODUCTION This lntroduction contains a brief summary of certain information contained in this Official Statement. It is not intended to be complete and is qualified by the more detailed information contained elsewhere in this O�cial Statement. Authorixafion. The Bonds will be issued under tha provisians of the Marks-Roos Local Bond Pooling Act of 1985, constituting Article 4 of Chapter 5 of Division 7 of Tit{e 1 (commencing with Section 6584) of the California Government Code (the "Bond Law"). The Bonds will be issued pursuant to an Indenture of Trust, dated as of June 1, 2004 (the "Indenture"), by and between the Authority and BNY Western Trust Company, as trustee thereunder (the "Trustee"). � * Preliminary, subject to change. Use of Proceeds. The proceeds of the Bonds will be used by the Authority to make a loan (the "Loan") to the Palm Desert Redevelopment Agency (the "Agency") pursuant to a Project Area No. 1, As Amended, Loan Agreement dated as. of June 1, 2004 by and among the Authority, the Agency and the Trustee (the "Loan Agreement") for the benefit of the Agency's Project Area No. 1, As Amended (the "Project Area"). The proceeds of the Loan will be used to (i) refund the indebtedness of the Agency under a Loan Agreement dated as of June 1, 1995 (the "1995 Loan Agreement"), and (ii) finance certain redevelopment activities within or of benefit to the Project Area and to pay costs of issuance of the Bonds. The refunding of the obligations under the 1995 Loan Agreement will effect a refunding of the Authority's Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended), Series 1995, of which $ remain outstanding (the "1995 Bonds"). See "PLAN OF FINANCE — The Redevelopment Project." Proceeds of the Bonds will also be used to establish a Reserve Fund (described herein) for the Bonds and to pay costs of issuance. Securify. The Bonds are special obligations of the Authority secured by Revenues as defined in the Indenture and described herein, consisting primarily of the amounts paid by the Agency under the Loan Agreement. See "SECURITY FOR THE BONDS." Under the Loan Agreement, the Agency has agreed to pay, on a parity with obligations of the Agency under loan agreements entered into in 1997, 2002 and 2003 (all as described herein), from Tax Revenues (as defined below) amounts set forth in the Loan Agreement which are to be sufficient to pay in full when due the principal of and interest and premium (if any) on the Bonds. In California, the financing and refinancing of redevelopment projects may be provided by the issuance of tax allocation bonds. Such bonds are payable from property taxes collected within a redevelopment project area attributable to the increase in assessed valuation of property over the valuation as of the date of establishment of the Project Area, as explained in greater detail herein. Tax Revenues is defined in the Indenture and generally includes certain ad valorem property taxes attributable to increases in the assessed valuation of certain property (except public property and property exempt from taxation) in the Project Area over that shown on the assessment rolls for the adjusted base year. Such taxes are eligible for allocation to the Agency pursuant to the Redevelopment Law in connection with the Project Area. The fiscal year 2003-04 total assessed value of the Project Area is approximately $ , of which tax increment revenue is generated from the incremental assessed value of approximately $ bil�ion, representing the excess of the value of the Project Area over the base year value of $ . Tax Revenues are more fully described under the caption "SECURITY FOR THE BONDS — Revenues and the Loan Agreement." In addition to the 1995 Loan being refunded, the Agency currently has outstanding its (i) Project Area No. 1, As Amended, Loan Agreement, dated as of July 1, 1997 (the "1997 Loan Agreement"), by and among the Agency, the Authority and BNY Western Trust Company as successor to First Trust of California, National Association as trustee, (ii) Project Area No. 1, As Amended, Loan Agreement, dated as of March 1, 2002 (the "2002 Loan Agreement"), by and among the Agency, the Authority and the Trustee, and (ii) Project Area No. 1, As Amended, Loan Agreement, dated as of July 1, 2003 (the "2003 Loan Agreement" and together with the 1997 Loan Agreement and the 2002 Loan Agreement, the "Prior Loan Agreements"), by and among the Agency, the Authority and BNY Western Trust Company as trustee, Each of the Prior Loan Agreements are secured by Tax Revenues on a parity with the Loan, and the Agency may, pursuant to the terms of the Loan Agreement.and the Indenture, issue additional obligations secured by Tax Revenues on a parity with the Loan (the "Parity Debt"). See "SECURITY FOR THE BONDS — Existing Parity DebY' and "-- Issuance of Additional Parity DebY' herein. 2 Payment of the principal of and interest on the Bonds when due will be insured by a municipal bond insurance policy to be issued by � (the "Insurer") simultaneously with the delivery of the Bonds. See "BOND INSURANCE" herein. The Project Area. The Project Area consists of the territory described and defined in the Redevelopment Plan of the City approved and adopted by the City by its Ordinance No. 80 (the "Original Project Area"), together with territory (the "Added Territory") added to the Original Project Area pursuant to the amendments to the Redevelopment Plan approved and adopted by the City Council by Ordinance Nos. 275 and 324 (together, the "Amendments"). The Project Area contains approximately 5,820 acres, and is situated within the City, the city of Indian Wells, and unincorporated areas of Riverside County. See "THE PROJECT AREA." Risk Factors. Risks of investment in the Bonds include the possibility of future decreases in the taxable valuation in the Project Area or in the applicable tax rates, which could reduce the Tax Revenues allocated to the Agency and correspondingly could have an adverse _ impact on the ability of the Agency to pay debt service on the Bonds. See "RISK FACTORS" herein. The City. The City of Palm Desert (the "City"), is located in the Coachella Valley and is approximately midway between the cities of Indio and Palm Springs, 117 miles east of Los Angeles, 118 miles northeast of San Diego and 515 miles southeast of San Francisco. The City was incorporated on November 26, 1973, as a general law city. In 1997 the City became a charter city. The estimated City population as of January 1, 2003 was approximately 43,900, The City occupies an area of 24.75 square miles. For certain information regarding the City, see "APPENDIX D- City of Palm Desert General Information." The Bonds are nof an obligation of the City. The Agency. The Agency is a redevelopment agency existing under the Community Redevelopment Law of the State of California (the "State"), constituting Part 1 of Division 24 (commencing with Section 33000) of the California Health and Safety Code, as amended (the "Redevelopment Law"). The Agency was established by ordinance of the City Council adopted in 1974. See "PALM DESERT REDEVELOPfvfENT AGENCY" below. Miscellaneous. There follows in this Official Statement, which includes the cover page and Appendices hereto, a brief description of the Bonds, the Loan Agreement, the Tax Revenues, the Project Area, security for the Bonds, risk factors, limitations on Tax Revenues and certain other information relevant to the issuance of the Bonds. All references herein to the Indenture are qualified in their entirety by reference to the definitive form thereof, and all references to the Bonds are further qualified by references to the information with respect thereto contained in the Indenture. A summary of certain provisions of the Indenture is included in APPENDIX E. The most recent audited financial statements of the Agency are included in APPENDIX C. The information set forth herein and in the Appendices hereto has been furnished by the Agency and includes information which has been obtained from other sources which are believed to be reliable but is not guaranteed as to accuracy or completeness and is not to be construed as a representation by the Underwriter. All capitalized terms used herein and not normally capitalized have the meanings assigned thereto in the Indenture, unless otherwise stated herein. � The information and expressions of opinion herein speak only as of the date of this Official Statement and are subject to change without notice. Neither delivery of this Official Statement nor any sale made hereunder nor any future use of this Official Statement shall, 3 under any circumstances, create any implication that there has been no change in the affairs of the Agency since the date hereof. All �nancial and other information presented in this O�cial Statement has been provided by the Agency or the City from their records, except for information expressly aftributed to other sources. The presentation of information, including table of receipts from tax increment revenues, is intended to show recent historic information and is not infended to indicate future or continuing trends in the financia! or other atfairs of fhe Agency or the City. No representation is made that past experience, as it might be shown by such financia! and other information, wil! necessari/y continue or be repeated in the future. PLAN OF FINANCE The proceeds of the Bonds will be used by the Authority to make the Loan to the Agency. Upon receipt of payment for the Bonds on the date of their initial delivery, the Trustee is required to deposit the net proceeds of the Bonds into the Loan Fund created under the Indenture and disbursed by the Trustee pursuant to the Loan Agreement. The amounts in the Loan Fund are to be transferred by the Trustee pursuant to the Loan Agreement to the Costs of Issuance Fund and the Project Fund. The proceeds of the Loan will be used to refund indebtedness of the Agency under the 1995 Loan Agreement and to finance certain redevelopment activities within or of benefit to the Project Area. Proceeds of the Loan will also be used to establish a Reserve Fund (described herein) for the Bonds and to pay costs of issuance. Refunding of 9995 Loan. In 1995, the Authority issued its $24,025,000 original principal amount of Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended), Series 1995 (the "1995 Bonds"), of which $22,450,000 remain outstanding, for the purpose of funding a loan (the "1995 Loan") to the Agency pursuant to a Loan Agreement dated as of June 1, 1995 (the "1995 Loan Agreement"). A portion of the proceeds of the Loan will be used by the Agency to refund the 1995 Loan. The proceeds of the 1995 Loan were primarily used to finance certain redevelopment activities within or of benefit to the Project Area. The refunding of the obligations under the 1995 Loan Agreement will effect a refunding of the 1995 Bonds. ' Refunding of 1995 Bonds. The Bonds are being issued to refinance the outstanding $22,450,000 amount of 1995 Bonds on or before . The Agency and BNY Western Trust Company, as escrow bank (the "Escrow Agent") will enter into an Escrow Deposit and Trust Agreement (the "Escrow Agreement") dated as of June 1, 2004 under which the Escrow Agent will establish an Escrow Fund (the "Escrow Fund"), into which a portion of the Loan and other available funds held for the 1995 Bonds will be deposited concurrent with the original delivery of the Bonds. Amounts in the Escrow Fund will be invested in certain United States Treasury securities, the principal of and interest on which, together with any uninvested cash therein, will be sufficient to pay and redeem all of the outstanding 1995 Bonds. Sufficiency of the deposits and investment earnings for those purposes will be verified by . See "VERIFICATION OF MATHEMATICAL COMPUTATIONS" below. Amounts on deposit in the Escrow Fund are not available for payment of the Bonds or the Loan. New Money Component. Proceeds of the Loan deposited into the Project Fund are to be disbursed pursuant to the Loan Agreement from time to time by the Trustee for the purpose 4 of paying any portion of the costs of the Agency for the redevelopment of the Project Area (the "Redevelopment Project"). The Agency anticipates using the proceeds of the Loan deposited into the Project Fund primarily for the financing of in the City and include - . [to come — new money projects...] See "THE AGENCY AND THE PROJECT AREA - SOURCES AND USES OF FUNDS The estimated sources and uses of Bond proceeds is summarized as follows. Ail of the proceeds of the Bonds are used to fund the Loan. The uses of funds shown below represent the use of Loan proceeds pursuant to the provisions of the Loan Agreement. Sources: Principal amount of Bonds [Premium/Discount] Total Sources Uses: Deposit to Escrow Fund Deposit to Project Fund Deposit to Reserve Fund Costs of Issuance* Total Uses * Includes underwriters' discount, municipal bond insurance premium and reserve fund surery bond premium, and any other expenses incurred in connection with the issuance of the Bonds and the making of the Loan. 5 DEBT SERVICE SCHEDULE Annual debt service for the Bonds is set forth below. Bond Year Ending April1 Principal Interest Total THE BONDS Description of the Bonds The Bonds will be issued in the form of fully registered bonds without coupons and in the denomination of $5,000 or any integral multiple thereof. The Bonds will be dated their date of initial delivery, and will bear interest at the rates per annum and will mature, subject to redemption provisions set forth below, on the dates and in tfie principal amounts, all as set forth on the inside front cover page hereof. The Bonds will be issued on{y as one fully registered Bond for each maturity, in the name of Cede & Co., as nominee for The Depository Trust Cvmpany, New York, New York ("DTC"), as registered owner of all Bonds. See "APPENDIX H- Book-Entry System." Ownership may be changed only upon the registration books maintained by the Trustee as provided in the Indenture. The Authority may decide to discontinue use of the system of book- entry transfers through DTC (or a successar securities depository). In that event, Bond certificates will be printed and delivered. Interest on the Bonds wifl be payable on Aprif 1 and October 1 of each year, commencing October 1, 2004 (the "Interest Payment Dates"}. Interest on the Bonds will be computed on the basis of a 360-day year consisting of twelve 30-day months. Each Bond will bear interest from the Interest Payment Date next preceding the date of authentication thereof unless (i) it is authenticated after a Record Date and on ar prior to the following Interest Payment Date, in which event it will bear interest from such Interest Payment Date, or (ii) it is authenticated on or prior to September 15, 2004, in which event it will bear interest from the date of initial delivery of the Bonds; provided, however, thaf if at the time of authentication of a Bond, interest is in defauft thereon, such 8ond shall bear interest from the fnterest Payment Date to which interest has previously been paid or made available for payment thereon. The principal or redemption price of the Bonds will be payable at the maturity or earlier redemption upon presentation and surrender of the Bonds at the corporate trust office of the Trustee in Los Angeles, California and interest on the Bonds will be payable by check or draft, mailed on the Interest Payment Date to each Owner of the Bonds (an "Owner") as of the Record Date preceding such Interest Payment Date. While the Bonds are held in the book-entry only system of DTC, al! such payments will be made to Cede & Co., as the registered Owner of the Bonds. Redemption of the Bonds Redemption From Optional Loan Prepayments. Under the Loan Agreement, the Agency is given the optian to prepay principal installments of the Loan. The Revenues derived from such prepayment shall be applied to the redemption of the Bonds, as a whole, or in part among maturities on a pro rata basis as designated in writing by the Authority and by lot within a maturity, in integral multiples of Five Thousand Dollars ($5,000) principal amount, on any Interest Payment Date on or after April 1, 2014, at the following respective redemption prices (expressed as percentages of the principal amount of the Bonds to be redeemed), plus accrued interest thereon to the date of redemption: 7 Redemption Dates Redemation Price April 1, 2014 and October 1, 2014 . 102% April 1, 2015 and October 1, 2015 101 April 1, 2016 and thereafter 100 Mandatory Sinking Fund Redemption. The Bonds due April 1, shali be subject to mandatory redemption by lot, on Aprii 1 in each year commencing April 1, from sinking fund payments made by the Authority, at a redemption price equal to the principal amount thereof to be redeemed, without premium, plus accrued interest to the date of redemption as shown in the following table; provided, however, that (i) in lieu of redemption thereof on April 1 in any year, such Bonds may be purchased by the Agency pursuant to the Loan Agreement and tendered to the Trustee for cancellation not later than the preceding January 15, and (ii) if some but not all of such Bonds have been redeemed pursuant to the paragraph above entitled "Redemption From Optional Loan Prepaymenfs," the total amount of all future sinking fund payments shall be reduced by the aggregate principal amount of such Bonds so redeemed, to be allocated among such sinking fund payments on a pro rata basis. Term Bonds Due April 1, Sinking Fund Principal Amount Redemption Date to be Redeemed (Aqril 11 or Purchased Notice of Redemption. The Trustee on behalf and at the expense of the Authority will mail (by first class mail) notice of any redemption to the respective Owners of any Bonds designated for redemption at their respective addresses ap�earing on the Registration Books, and to the Securities Depositories and to one or more Information Services, at least 30 but not more than 60 days prior to the date fixed for redemption; provided, however, that neither failure to receive any such notice so mailed nor any defect therein will affect fhe validity of the proceedings for the redemption of such Bonds or the cessation of the accrual of interest thereon. Such notice will state the date of the notice, the redemption date, the redemption place and the redemption price and will designate the CUSIP numbers, the Bond numbers (but only if less than all of the Outstanding Bonds are to be redeemed) and the maturity or maturities (in the event of redemption of all of the Bonds of such maturity or maturities in whole) of the Bonds to be redeemed, and will require that such Bonds be then surrendered at the trust office of the Trustee for redemption at the redemption price, giving notice also that further interest on such Bonds will not accrue from and after the redemption date. Selection of Bonds for Redemption. Whenever provision is made in the Indenture for less than all of the Bonds of any maturity to be redeemed, the Trustee will select the Bonds to be redeemed from all Bonds not previously called for redemption, by lot in any manner which the Trustee in its sole discretion shall deem appropriate under the circumstances. For purposes of such selection, all Bonds will be deemed to be comprised of separate $5,000 portions and such portions will be treated as separate bonds which may be. separately redeemed. Effect of Redemption. From and after the date fixed for redemption, if notice of redemption shall have been duly mailed and funds available for the payment of the principal of Es3 and interest (and premium, if any) on the Bonds so called for redemption shall have been duly provided, such Bonds so called shall cease to be entitled to any benefit under the Indenture other than the right to receive payment of the redemption price, and no interest shall accrue thereon from and after the redemption date specified in such notice. BONDINSURANCE The information relating to the lnsurer set forth in this section entitled "BOND INSURANCE," and the specimen lnsurance Policy set forth in Appendix F hereto, has been furnished 6y the lnsurer. No representation is made herein as to the accuracy or adequacy of such information or as to the absence of materia! adverse changes in such information subsequent to fhe date hereof. [to come from Insurer...] SECURITY FOR THE BONDS Revenues and Loan Agreement The Bonds are secured by a first lien on and pledge of the Revenues, which are defined in the Indenture to include (i) all amounts payable by the Agency as payments or prepayments for the Loan pursuant to the Loan Agreement; (ii) any proceeds of the Bonds originally deposited with the Trustee and all moneys deposited and held from time to time in the funds and accounts established under the Indenture; and (iii) income and gains with respect to the investment of amounts on deposit in the funds and accounts established under the Indenture, other than amounts payable to the United States of America pursuant to the tax covenants contained in the Indenture. The primary security for the Bonds, therefore, consists of amounts payable by the Agency under the Loan Agreement, amounts held in the Reserve Fund and amounts held by the Trustee under the Indenture. The Loan is secured by a first pledge of and lien on the Tax Revenues, as more fully described under "SECUR�TY FOR THE BONDS — Tax Revenues." The Agency may, pursuant to the terms of the Loan Agreement and the Indenture, issue additional obligations secured by Tax Revenues on a parity with the Loan. See "SECURITY FOR THE BONDS — Issuance of Additional Parity Debt." Tax Allocation Financing � The Redevelopment Law provides a means for financing redevelopment projects based upon an allocation of taxes collected within a project area. The taxable valuation of a project area last equalized prior to adoption of the redevelopment plan, or base roll, is established. Thereafter, except for any period during which the taxable valuation drops below the base roll, � the state and local governments for the benefit of which taxes are levied and collected on property within the project area receive the taxes produced by the levy of the then current tax rate upon the base roll. Taxes collected upon any increase in taxable valuation over the base roll are allocated to a redevelopment agency and may be pledged by a redevelopment agency to the repayment of any indebtedness incurred in financing o,r refinancing a redevelopment project. Redevelopment agencies themselves have no authority to levy property taxes and must look specifically to the allocation of taxes produced as above indicated. Further, the Redevelopment Law requires that certain amounts of tax increment be used by a redevelopment agency for low and moderate income housing projects, and places certain limits on the tax increment which a redevelopment agency is authorized to receive. See "TAX REVENUES — Housing Set-Aside Requirements" and "THE PROJECT AREA — Limitations and Requirements of the Redevelopment Plan" herein. Allocation of Taxes As provided in the Redevelopment Plan, and pursuant to Article 6 of Chapter 6 of the Redevelopment Law and Section 16 of Article XVI of the Constitution of the State of California, taxes levied upon taxable property in the Project Area, each year by or for the benefit of the State of California and any city, county, city and county, district or other public corporation (herein collectively referred to as "taxing agencies") for fiscal years beginning after the effective date of the Project Area, are divided as follows: (1) To Taxing Agencies: That portion of the taxes which would be produced by the rate upon which the tax is levied each year by or for each of said taxing agencies upon the total sum of the assessed value of the taxable property in the Project Area, as shown upon the assessment roll used in connection with the taxation of such property by such taxing agency last equalized prior to the effective date of the ordinance approving the Redevelopment Plan shall be allocated to, and when collected shall be paid into, the funds of the respective taxing agencies as taxes by or for said taxing agencies on all other property are paid; and (2) To the Agency: Except for taxes which are attributable to a tax rate levy by a taxing agency for the purpose of producing revenues to repay bonded indebtedness approved by the voters of the taxing agency on or after January 1, 1989, which shall be allocated to and when collected shall be paid to sucM taxing agency, that portion of said levied taxes each year in excess of the amounts provided for in (1) above, shall be allocated to, and when collected shall be paid into, a special fund of the Agency to pay the principal of and interest on bonds, loans, moneys advanced to, or indebtedness (whether funded, refunded, assumed, or otherwise) incurred by the Agency to finance or refinance, in whole or in part, the Project Area. Unless and until the total assessed valuation of the taxable property in the Project Area exceeds the total assessed value of the taxable property in the Project Area as shown by the last equalized assessment roll referred to in paragraph (1) above, all of the taxes levied and collected upon the taxable property in the Project Area, shall be paid into the funds of the respective taxing agencies. When said bonds, loans, advances, and indebtedness, if any, and interest thereon, have been paid, all moneys thereafter received from taxes upon the taxable property in the Project Area, shall be paid into the funds of the respective taxing agencies as taxes on all other property are paid. The Agency is authorized to make pledges of the portion of taxes allocated to it as described in paragraph (2) above to repay specific advances, loans and indebtedness as appropriate in carrying out the Redevelopment Plan. 10 Tax Revenues The "Tax Revenues" which the Agency has pledged to the payment of the Loan are defined in the Loan Agreement as that portion of the taxes levied upon taxable property in the Project Area, allocated and paid into a special fund of the Agency (the "Special Fund"), pursuant to Article 6 of Chapter 6 of the Redevelopment Law and Section 16 of Article XVI of the Constitution of the State, exclusive of (i) amounts placed into the Low and Moderate Income Housing Fund of the Agency pursuant to Sections 33334.2 and 33334.3 of the Redevelopment Law, and (ii) amounts payable to affected taxing agencies pursuant to the Pass-Through Agreements (hereinafter described), or pursuant to sections 33607.5 and 33607.7 of the Redevelopment Law. See "SECURITY FOR THE BONDS — Pass-Through Agreements and Housing Set-Aside" and "APPENDIX A— Fiscal Consultant's Report." All Tax Revenues received by the Agency are required to be deposited in the Special Fund until such time as the amounts on deposit in the Special Fund equal the aggregate amounts required to be transferred to the Trustee pursuant to the Loan Agreement and any Parity Debt Instrument. The Agency has no power to levy and collect property taxes, and any property tax limitation, Legislative measure, voter initiative or provisions of additional sources of income to taxing agencies having the effect of reducing the property tax rate, could reduce the amount of Tax Revenues that would otherwise be available to pay. the Loan and, consequently, the principal of, and interest on, the Bonds. Likewise, broadened property tax exemptions could have a similar effect. See "RISK FACTORS" herein. THE BONDS ARE NOT A DEBT OF THE CITY OF PALM DESERT, THE STATE OF CALIFORNIA OR ANY OF ITS POLITICAL SUBDIVISIONS (OTHER THAN THE AUTHORITY), AND NEITHER THE CITY NOR THE STATE OR ANY OF ITS POLITICAL SUBDIVISIONS (OTHER THAN THE AUTHORITY) IS LIABLE THEREON. NEITHER THE AUTHORITY NOR THE AGENCY HAS ANY TAXING POWER. THE BONDS ARE REVENUE BONDS, PAYABLE EXCLUSIVELY FROM THE REVENUES AND OTHER .FUNDS AS PROVIDED IN THE INDENTURE, INCLUDING PAYMENTS TO BE MADE BY THE AGENCY UNDER THE LOAN AGREEMENT. THE OBLIGATIONS OF THE AGENCY UNDER THE LOAN AGREEMENT AND ANY PARITY DEBT OF THE AGENCY ARE PAYABLE SOLELY FROM TAX REVENUES ALLOCATED TO THE AGENCY FROM THE PROJECT AREA. THE BONDS DO NOT CONSTITUTE AN INDEBTEDNESS WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY DEBT LIMIT OR RESTRICTION. Pass-Through Agreements and Housing Set-Aside Pass-Through Agreements. The Agency has entered into several agreements (the "Pass-Through Agreements") in connection with the Project Area, whereby portions of the tax increment revenues which would otherwise be received by the Agency as described above are paid to certain other taxing entities. Amounts paid under the Pass-Through Agreements are not Tax Revenues and, therefore, are not pledged to secure the Loan. See "TAX REVENUES — Projected Taxable Valuation and Tax Revenues" herein, and see "APPENDIX A— Fiscal ConsultanYs ReporY' for a description of the Pass-Through Agreements. Housing Set Aside. Excluded from the Tax Revenues are those amounts received by the Agency and placed into the Low and Moderate Income Housing Fund of the Agency pursuant to Sections 33334.2 and 33334.3 of the Redevelopment Law (the "Housing Set- 11 Aside"). For a discussion of Housing Set-Aside requirements, see "TAX REVENUES — Housing Set-Aside Requirements." . Parity Debt and Existing Parity Lien The Agency's obligations on the Loan are repayable on a parity with Parity Debt, which consists of any indebtedness payable from Tax Revenues on a parity with the Loan. Other than the 1995 Loan to be refunded, existing Parity Debt consists of the 1997 Loan, which is currently outstanding in the aggregate principal amount of $ , 2002 Loan, which is currently outstanding in the aggregate principal amount of $ , and the 2003 Loan, which is currently outstanding in the aggregate principal amount of.$ . Other than the 1995 Loan, the 1997 Loan, the 2002 Loan and the 2003 Loan, there is no existing Parity Debt. For a description of the debt service requirements of the 1997 Loan, the 2002 Loan and the 2003 Loan, see "DEBT SERVICE SCHEDULE" herein. See "SECURITY FOR THE BONDS — Issuance of Additional Parity Debt." Other Agency Obligations The Agency also has other outstanding debt in the amount of $10,011,857 as of June, 2003, consisting of loans made to the Agency from the City of Palm Desert in connection with the Redevelopment Plan. In the opinion of Bond Counsel, these obligations are subordinate to the pledge of Tax Revenues under the Loan Agreement, which the Authority in turn has pledged as Revenues under the Indenture for the repayment of the Bonds. Issuance of Additional Parity Debt The Authority has covenanted in the Indenture that except for the Bonds, it will not incur any other indebtedness payable out of Revenues. So long as the 1997 Loan, the 2002 Loan or the 2003 Loan remains outstanding, any additional Parity Debt must also meet the requirements thereunder for issuance of additional Parity Debt. The Agency has covenanted in the Loan Agreement that it will not incur any indebtedness which is payable from all or any part of the Tax Revenues, other than: (i) the Loan; (ii) additional Parity Debt subject to the conditions described below; and (iii) any debt secured by a pledge of Tax Revenues which is subordinate to the pledge of Tax Revenues created by the Loan Agreement. The Agency has further covenanted in the Loan Agreement that it will not amend the Redevelopment Plan (except for the purpose of extending or eliminating the time limit on the establishment of loans, advances, and indebtedness, extending the time limit on the effectiveness of the Redevelopment Plan, extending the time limit on the payment of indebtedness, extending the time limit for the receipt of tax increment, or increasing the limitation on the number of dollars of taxes to be allocated to the Agency) or any of the Pass-Through Agreements, or enter into any agreement with the County or any other governmental unit, which would have the effect of reducing the amount of Tax Revenues available to the Agency for payment of the Loan, unless the Agency shall first obtain (a) the Report of an Independent Redevelopment Consultant stating that the amount of Tax Revenues for the then current Fiscal Year (calculated on the assumption that such reduction of Tax Revenues was in effect throughout such Fiscal Year), shall be at least equal to 115 percent of Maximum Annual Debt Service and (b), as long as the Insurance Policy is in full force and effect, the written consent of the Insurer. 12 Pursuant to the Loan Agreement, the Agency may issue or incur additional Parity Debt subject to the following specific conditions: (a) No Event of Default shall have occurred and be continuing, and the Agency shall otherwise be in compliance with all covenants set forth in this Loan Agreement. (b) The amount of Tax Revenues for the then current Fiscal Year, as set forth in a Certificate of the Agency, based on assessed valuation of property in the Project Area as evidenced in the written records of the County, shall be at least equal to 115% of Maximum Annual Debt Service. (c) The balance in the Reserve Fund shall be increased to an amount which equals the Reserve Requirement. (d) The related Parity Debt Instrument shall provide that: (i) tnterest on such Parity Debt shall be payable, except for the first 12-month period thereof, which may be payable at the end of such period, on the same dates that interest on the Loan is payable and (ii) The principal of such Parity Debt shall not be payable on any date other than the date on which principal of the Loan is payable. (e) The issuance of such Parity Debt shall not cause the Agency to exceed any applicable Plan Limitations. (f) The Agency shall deliver to the Trustee a Certificate of the Agency certifying that the conditions precedent to the issuance of such Parity Debt set forth in subparagraphs (a) through (e), above, have been satisfied. Reserve Fund In order to further secure the payment of principal of and interest on the Bonds, the Agency is required to maintain an amount equal to the Reserve Requirement in the Reserve Fund established under the Loan Agreement and held by the Trustee. Amounts in the Reserve Fund are to be held by the Trustee for the benefit of the Authority, Bondowners, and the owners of any Parity Debt pursuant to the Loan Agreement, and are pledged by the Agency to secure the Agency's payment obligations under the Loan Agreement. The Agency is required to set aside from the Special Fund and deposit in the Reserve Fund an amount sufficient to maintain the Reserve Requirement on deposit in the Reserve Fund at all times so long as any Bonds remain outstanding. As defined in the Loan Agreement, the Reserve Requirement means, as of the date of calculation and as certified in writing to the Trustee by the Agency, an amount equal to the least of (i) Maximum Annual Debt Service, (ii) 125% Qf average annual debt service, and (iii) 10% of the proceeds of the Loan and of the proceeds of any Parity Debt. The Loan Agreement permits the Agency to fund all or a portion of the Reserve Requirement by means of a Qualified Reserve Fund Credit Instrument. The Debt Service Reserve Fund Surety Bond described in the succeeding paragraphs constitutes a Qualified Reserve Fund Credit Instrument. 13 The Authority has received a commitment from the Insurer to issue a surety bond (the "Debt Service Reserve Fund Surety Bond"). The Debt Service Reserve Fund Surety Bond will provide that upon notice from the Trustee to the Insurer to the effect that insufficient amounts are on deposit in the Revenue Fund to pay the principal of (at maturity or pursuant to mandatory redemption requirements) and interest on the Bonds, the Insurer will promptly deposit with the Trustee an amount sufficient to pay the principal of and interest on the Bonds or the available amount of the Debt Service Reserve Fund Surety Bond, whichever is less. Upon the later of: (i) three (3) days after receipt by the Insurer of a Demand for Payment in the form attached to the Debt Service Reserve Fund Surety Bond, duly executed by the Trustee; or (ii) the payment date of the Obligations as specified in the Demand for Payment presented by the Trustee to the Insurer, the Insurer will make a deposit of funds in an account with U.S. Bank National Association, in New York, New York, or its successor, sufficient for the payment to the Trustee, of amounts which are then due to the Trustee (as specified in the Demand for Payment) subject to the Surety Bond Coverage. The available amount of the Debt Service Reserve Fund Surety Bond is the initial face amount of the Debt Service Reserve Fund Surety Bond less the amount of any previous deposits by the Insurer with the Trustee which have not been reimbursed by the Authority. The Authority and the Insurer have entered into a Financial Guaranty Agreement dated as of the date of issuance of the Bonds (the "Agreement"). Pursuant to the Agreement, the Authority is required to reimburse the Insurer, within one year of any deposit, the amount of such deposit made by the Insurer with the Trustee under the Debt Service Reserve Fund Surety Bond. Such reimbursement shall be made only after all required deposits to the Revenue Fund have been made. � Under the terms of the Agreement, the Agency's obligation to reimburse the Insurer shall be subordinate only to the rights of the Trustee to receive regularly scheduled payments of principal and interest on the Loan. No optional redemption of Bonds may be made until the Insurer's Debt Service Reserve Fund Surety Bond is reinstated. The Debt Service Reserve Fund Surety Bond will be held by the Trustee in the Reserve Fund and is provided as an alternative to the Authority depositing funds equal to the Reserve Fund Requirement for outstanding Bonds. The Debt Service Reserve Fund Surety Bond will be issued in the face amount equal to Maximum Annual Debt Service for the Bonds and the premium therefor will be fully paid by the Agency at the time of delivery of the Bonds. RISK FACTORS The following is a discussion of certain risk factors which should be considered, in addition to other matters set forth herein, in evaluating fhe investment quality of fhe Bonds. This discussion does not purport to be comprehensive or definitive. The occurrence of one or more of the events discussed herein could adversely affect the ability of the Agency to make the payments required to repay the Bonds and their interest on a timely manner. In addition, the occurrence of one or more of fhe evenfs discussed herein could adversely affect fhe value of the property in the Project Area. Bonds Are Limited Obligations The Bonds and the interest thereon are limited obligations of the Agency and do not constitute a general obligation of the Agency. See "SECURITY FOR THE BONDS" herein. No Owner of the Bonds may compel exercise of the taxing power of the State of California or any of its political subdivisions or agencies to pay the principal of, �premium, if any, or interest due on 14 the Bonds. The Bonds do not evidence a debt of the Agency within the meaning of any constitutional or statutory debt limitation provision. Reduction of Tax Revenues Tax Revenues (which constitute the source of repayment of the Loan and indirectly of the Bonds, as discussed herein) are a portion of the taxes allocated to the Agency each year which are determined by the amount of incremental valuation of taxable property in the Project Area, the current rate or rates at which property in the Project Area, is taxed and the percentage of taxes collected in the Project Area. Neither the Agency nor the Authority has taxing power, nor does the Agency have the power to affect the rate at which property is taxed. Events beyond the control of the Agency could cause a reduction in Tax Revenues, thereby impairing the ability of the Agency to make payments under the Loan Agreement sufficient to pay principal of and interest and premium (if any) when due on the Bonds. A reduction of taxable values of property or tax rates in the Project Area or a reduction of the rate of increase in taxable values of property in the Project Area caused by economic or other factors beyond the Agency's control (such as a relocation out of the Project Area by one or more major property owners, successful appeals by property owners for a reduction in a property's assessed value, a reduction of the general inflationary rate, a reduction in transfers of property, reduction of property values, events that permit reassessment of property at lower values, or the destruction of property caused by natural or other disasters, including earthquake) could occur, thereby causing a reduction in Tax Revenues. The California electorate or legislature could adopt limitations with the effect of reducing Tax Revenues. Such limitation already exists under Article XIIIA of the California Constitution, which was adopted pursuant to the initiative process. For a further description of Article XIIIA, see "PROPERTY TAXATION IN CALIFORNIA — Constitutional Amendments Affecting Tax Revenues," herein. � A reduction in the tax rate applicable to property in the Project Area by reason of discontinuation of certain override tax levies in excess of the 1% basic levy will reduce tax increment revenues. Su.ch override tax levies can be expected to decline over time until the tax rate in the Project Area reaches the 1% basic levy. Such overrides may be discontinued at any time, which may cause a reduction in Tax Revenues. The Agency does not receive any Tax Revenues attributable to tax override levies. Delinquencies in the payment of property taxes by the owners of land in the Project Area could have an adverse effect on the Agency's ability to make timely payments under the Loan Agreement. Other events beyond the control of the Agency could also cause a reduction in Tax Revenues. Tax increment revenues allocated to the Agency are distributed throughout the year in installments, with the first major installment in January, a second major installment in May of the succeeding year and a final payment by the end of June in that year. The payments are adjusted to reflect actual collections. Any reduction in tax increment revenues, whether for any of the foregoing reasons or any other reason, could have an adverse effect on the Agency's ability to make payments under the Loan Agreement sufficient to pay the principal of and interest on the Bonds. 15 Reduction in inflationary Rate As described in greater detail below, Article XIIIA of the California Constitution provides that the full cash value basis of real property used in determining taxable value may be adjusted from year to year to reflect the inflationary rate, not to exceed a 2% increase for any given year, or may be reduced to reflect a reduction in the consumer price index or comparable local data. Such measure is computed on a calendar year basis. The Agency has projected Tax Revenues to be received by it based, among other things, upon such-2°lo inflationary increases. Should the assessed value of real property not increase at the allowed annual rate of 2°l0, the Agency's receipt of future Tax Revenues may be adversely affected. See "PROPERTY TAXAT{ON IN CALIFORNIA - Constitutional Amendments Affecting Tax Revenues" herein. Assessment Appeals Property taxable values may be reduced as a result of a successful appeal of the taxable value determined by the County Assessor. An appeal may result in a reduction to the County Assessor's original taxable value and a tax refund to the applicant property owner. Appeal and refund activity within the Project Area may result in resolved appeals which reduce the assessed value of parcels within the Project Area. See APPEND4X A-"Fiscal ConsultanYs Report." An assessee may contest either (i) the original determination of the "base assessment value" of a parcel (i.e., the value assigned after a change of ownership or completion of new construction), or (ii) the "current assessment value" (i.e., the value as determined by the County Assessor, which may be no more than the base assessment value plus the compounded 2% annual inflation factor) when specified factors have caused the market value of the parcel to drop below current assessment value. At the time of reassessment, after a change of ownership or completion of new construction, the assessee may appeal the base assessment value of the property. Under an appeal of a base assessment value, the assessee appeals the actual underlying market value of the sales transactian or the recently completed improvement. A successful appeal of the base assessment value of a parcel has significant future revenue impacts, because a reduced base year assessment wilf reduce the compounded future value of the property prospectively. Except for the two percent inflation factor, the value of the property �cannot be increased until a change in ownership occurs or additional improvements are added. Assessment appeals are currently pending in the Project Area, and the Agency cannot predict whether such appeals, or any future appeals, will be successful. Future reductions in taxable values in the Project Area resulting from successful appeals by property owners will reduce the amount of Tax Revenues available to pay the principal of and interest on the Bonds. Proposition 8 Adjustments Proposition 8, approved in 1978 (California Revenue and Taxation Code Section 51(b}), provides for the assessment of real property at the lesser of its originally determined (base year) full cash value compounded annually by the inflation factor, or its full cash value as of the lien date, taking into account reductions in value due to damage, destruction, obsolescence or other factors causing a decline in market value. Reductions based on Proposition 8 do not establish new base year values, and the property may be reassessed on a following lien date up to the lower of the then-current fair market value or the factored base year value. Properties in the 16 Project Area have not been subject to Proposition 8 adjustments made by the County Assessor in any significant amount. Development Risks Generaliy, the Agency's ability to make payments under the Loan Agreement will be dependent upon the economic strength of the Project Area. The general economy of the Project Area will be subject, in part, to the development risks generally associated with real estate development projects. Projected development within the Project Area may be subject to unexpected delays, disruptions and changes. For example, real estate development operations may be adversely affected by changes in general economic conditions, fluctuations in the real estate market, fluctuations in interest rates, unexpected increases in development costs and by other factors. Further, real estate development operations within the Project Area could be adversely affected by future governmental policies, including governmental policies to restrict or control development. If projected development in the Project Area is delayed or halted, the economy of the Project Area could be adversely affected, causing a reduction of the Tax Revenues available ultimately to pay debt service on the Bonds. Levy and Collection Neither the Agency nor the Authority has any independent power to levy and collect property taxes. Any reduction in the tax rate or the implementation of any constitutional or legislative property tax decrease could reduce the Tax Revenues, and accordingly, could have an adverse impact on the ability of the Agency to make payments under the Loan Agreement sufficient to pay debt service on the Bonds. Likewise, delinquencies in the payment of property taxes could have an adverse effect on the Agency's ability to make timely payments. The County currently allocates to the Agency 100% of tax increment revenues without regard to delinquencies. However, there is no assurance that the County will continue to allocate Tax Revenues in this manner. To estimate the Tax Revenues available to pay debt service on the Bonds, the Agency has made certain assumptions with regard to the assessed valuation of property within the Project Area and future tax rates. The Agency believes these assumptions to be reasonable, but to the extent that the assessed valuation and the tax rates are less than the Agency's assumptions, the Tax Revenues available to pay debt service on the Bonds may be less than those projected herein. Educational Revenue Augmentation Fund The State budget for Fiscal Year 1993-94 transferred $2.6 billion to school districts from cities, counties and other local governments, including redevelopment agencies. As part of the budget's transfer of moneys to school districts, the State Legislature adopted SB 1135 which required redevelopment agencies to transfer approximately $65 million to the Educational Revenue Augmentation Fund (the "ERAF") in Fiscal Years 1993-94 ancl 1994-95. On September 30, 2002 AB 1768 was enacted into law as Chapter 1127 of the Statutes of 2002. AB 1768 again imposes an ERAF transfer on redevelopment agencies for fiscal year 2002-03 only, in the aggregate amount of $75,000,000, to be imposed in proportion to the amount of tax increment and property taxes received by each redevelopment agency in fiscal year 2000-01. In connection with its approval of the budget for the 1992-93, 1993-94 and 1994-95 fiscal years, the State Legislature enacted legislation which, among other things, reallocated funds from redevelopment agencies to school districts by shifting a portion of each agency's tax increment, net of amounts due to other taxing agencies, to school districts for such fiscal years for deposit in the Education Revenue Augmentation Fund. The amount required to be paid by a redevelopment agency under such legislation was apportioned among all of its redevelopment 17 project areas on a collective basis, and was not allocated separately to individual project areas. Faced with a projected $23.6 billion budget gap for Fiscal Year 2002-03, the State Legislature adopted and sent to the Governor of the State as urgency legisiation, AB 1768 requiring redevelopment agencies to pay into ERAF in Fiscal Year 2002-03 an aggregate amount of $75 million. The Agency paid $ into ERAF in Fiscal Year 2002-03 as its share of such $75 million. Similarly, for Fiscal Year 2003-04 redevelopment agencies are required to transfer a total of $135,000,000 to the ERAF and the Governor's recent budget proposal for Fiscal Year 2004-05 (the "Governor's 2004-05 Budget Proposal") again projects significant deficits in the State's General Fund and again includes a proposed transfer of $135,000,000 by redevelopment agencies to the ERAF. The Agency cannot predict whether future fiscal year budgets will include any ERAF transfers. See "State Fiscal Condition" below. See also "STATUTORY LIMITATIONS ON TAX REVENUES," State Fiscal Condition The State of California continues to experienc� severe financial and budgetary stress. The Governor has estimated that the State General Fund aggregate defic'it for Fiscal Year 2003- 04 will be over $38 billion. On August 2, 2003, the Governor signed the Fiscal Year 2003-04 Budget into law. Additional revenues to assist in balancing the State budget are provided pursuant to SB 1045, signed by the Governor on September 1, 2003, and effective immediately as Chapter 260, Statutes 2003. SB1045 requires redevelopment agencies to transfer a total of $135,000,000 to the ERAF in Fiscal Year 2003-04. The transfer must be completed by May 10, 2004, and the Agency`s ERAF payment obligation is $ . The obligation is due from the Agency as a whole and need not be paid from increment generated from any specific project area. The Agency has funds on hand to make the ERAF payment for Fiscal Year 2003- 04. The Governor's recent budget proposal for Fiscal Year 2004-05 (the "Governor's 2004- 05 Budget Proposal") again projects significant deficits in the State's General Fund and again includes a proposed transfer of $135,000,000 by redevelopment agencies to the ERAF, The Agency cannot predict whether the State Legislature will adopt the portion of the Governor's 2004-05 Budget Proposal requiring tlie Agency to make an identical transfer to ERAF in Fiscal year 2004-05 or other legislation requiring shifts in Fiscal Year 2004-05 or in future Fiscal Years of tax increment revenues to the State and/or to schools, whether by the ERAF mechanism or by other arrangement. The Agency expects the obligation of redevelopment agencies to transfer moneys to the ERAF will continue into the foreseeable future. Should such legislation be enacted, Tax Revenues available for payment of the Bonds may, in the future, be substantially reduced and the Agency's ability to pay debt service on the Bonds may be affected. Bankruptcy and Foreclosure On July 30, 1992 the United States Court of Appeals for the Ninth Circuit issued an opinion in a bankruptcy case entitled In re Glasply Marine lndustries holding that ad valorem property taxes levied by a county in the State of Washington after the date that the property owner filed a petition for bankruptcy would not be entitled to priority over the claims of a secured creditor with a prior lien on the property. Similar results were reached by several circuit courts in other circuits. Subsequently, however, section 362(b)(18) of the Bankruptcy Code was enacted, effectively overturning this line of decisions and providing that local governments may rely on statutory property tax liens to secure payment of property taxes after the filing of a bankruptcy petition. 18 For further discussion of other factors which may affect the amount of tax increment revenue collected by the Agency, see "TAX REVENUES" herein. Loss of Tax Exemption on the Bonds In order to maintain the exclusion from gross income for federal income tax purposes of the interest on the Bonds, the Agency has covenanted in the Loan Agreement to comply with each applicable requirement of Section 103 and Sections 141 through 150 of the Internal Revenue Code of 1986, as amended. The interest on the �Bonds could become includable in gross income for purposes of federal income taxation retroactive to the date of issuance of the Bonds, as a result of acts or omissions of the Agency in violation of covenants in the Loan Agreement. Should such an event of taxability occur, the Bonds are not subject to acceleration, redemption or any increase in interest rates and will remain Outstanding until maturity or until redeemed under one of the redemption provisions contained in the Indenture. See "CONCLUDING INFORMATION — Tax-Exempt Status of the Bonds" herein. PRfJPERTY TAXATION IN CALIFORNIA Constitutional Amendments Affecting Tax Revenues Article XIIIA of the California Constitution limits the amounts of ad valorem tax on real property to 1% of "full cash value" as determined by the county assessor. Article XIIIA defines "full cash value" to mean "the County Assessor's valuation of real property as shown on the 1975-76 tax bill under 'full cash value', or thereafter the appraised value of real property when purchased, newly constructed, or a change in ownership has occurred after the 1975 assessment period." Furthermore, all real property valuation may be increased to reflect the inflationary rate, as shown by the consumer price index, not to exceed 2% per year, or may be reduced in the event of declining property values caused by damage, destruction or other factors. Article XIIIA exempts from the 1% tax limitation any taxes to repay indebtedness approved by the voters prior to July 1, 1978, and any bonded indebtedness for the acquisition or improvement of real property approved on or after July 1, 1978 by two-thirds of the voters voting on the proposition approving such bonds, and requires a vote of two-thirds of the qualified electorate to impose special taxes, while totally precluding �the imposition of any additional ad valorem, sales or transaction tax on real property. In addition, Article XIIIA requires the approval of two-thirds of all members of the State legislature to change any State tax law resulting in increased tax revenues. Article XIIIB of the California Constitution limits the annual appropriations from the proceeds of taxes of the State and any city, county, school district, authority or other political subdivision of the State to the level of appropriations for the prior fiscal year, as adjusted for changes in the cost of living, population and services rendered by the governmental entity. Article XIIIB includes a requirement that if an entity's revenues in any year exceed the amount permitted to be spent, the excess would have to be returned by revising tax or fee schedules over the subsequent two years. Section 33678 of the Redevelopment Law provides that the allocation of taxes to a redevelopment agency for the purpose of paying principal of, or interest on, loans, advances or indebtedness incurred for redevelo'pment activity shall not be deemed the receipt by such agency of proceeds of taxes within the meaning of Article XIIIB, nor shall such portion of taxes 19 be deemed receipt of proceeds ofi taxes by, or any appropriation subject to the limitation of, any other public body within the meaning or the purpose of the Constitution and laws of the State, including Section 33678 of the Redevelopment Law. Two California appellate court decisions have upheld the constitutionality of Section 33678, and in the one case in which a petition for review was filed in the California Supreme Court, such petition was denied. County of Orange v. Orange County Assessment Appeals Board No. 3. In a Minute Order issued on November 2, 2001, in County of Orange v. Orange County Assessment Appeals Board No. 3, Case No. OOCC03385, the Orange County Superior Court held that where a home's taxable value did not increase for two years, due to a flat real estate market, the Orange County assessor violated the two percent inflation adjustment provision of Article XII{A, when the assessor tried to "recapture" the tax value of the property by increasing its assessed value by 4% in a single year. The assessors in most California counties, including the County, use a similar methodology in raising the taxable values of property beyond 2% in a single year. The State Board of Equalization has approved this methodology for increasing assessed values. On December 27, 2001, the Orange County Superior Court issued an order declaring the practice of "recapturing" to be unconstitutional. That order only applies to one property in Seal Seach. A second issue of "class action" was requested to be reviewed by the court and on December 12, 2002, the Superior Court certified class action status for this case, which cauld have the effect of extending this ruling to other simitar cases. A third issue addressed by the court is related to notification to the taxpayers by the Tax Collector. On January 20, 2003, the Superior Court granted the motion for the Tax Collector to give some type of notice to taxpayers. The court put on hold this order pending final appellate review and a ruling on the "recapture" issue. The court entered a Final Judgment on April 18, 2003, and the case is now released from the local court. In 2002 two local courts (Los Angeles and San Diego) ruled differentfy on the "recapture" issue. Therefore, the issues of uniformity and equal pratection for each taxpayer statewide must be addressed. When local courts differ, the subject matter is often subject to a uniformity review. Orange County, the Orange County Tax Collector and the Orange County Assessor have appealed the Superior Court ruling to State appellate courts, The Appellate Court held a hearing on the matter on January 7, 2004, and issued its ruling on March 26, 2004, overturning the trial court. The Appellate Court held that the trial court erred in ruling that assessments are always limited to no more than 2% of the previous year's assessment. However, no assurance can be given that the plaintiffs will not appeal this holding to the California Supreme Court. Implementing l.egistation Legislation enacted by the California Legislature to implement Article XIfIA (Statutes of 1978, Chapter 292, as amended) provides that, notwithstanding any other law, local agencies may not levy any property tax, except to pay debt service on indebtedness approved by the voters prior to July 1, 1978, and that each county will levy th�e maximum tax permitted by Article XIIIA of $4.00 per $100 assessed valuation (based on the traditional practice of using 25% of full cash vafue as the assessed value for tax purposes). The legislation further provided that, for Fiscal Year 1978-79 anly, the tax levied by each county was to be appropriated among all taxing agencies within the county in proportion to their average share of taxes levied in certain previous years. Effective as of the 1981-82 Fiscal Year, assessors in California no longer record property values in the tax rolls at the assessed value of 25% of market values. All taxable property value is shown at full market value. In conformity with this change in procedure, all � taxable property value included in this Official Statement (except as noted) is shown at 100% of market value and all general tax rates reflect the $1 per $100 of taxable value. Future assessed valuation growth allowed under Article XIIIA (i.e., new construction, change of ownership, and 2% annual value growth) will be allocated on the basis of "situs" among the jurisdictions that serve the tax rate area within which the growth occurs. Local agencies and schools will share the growth of "base" revenue from the tax rate area. Each year's growth allocation becomes part of each agency's allocation in the following year. The Agency is unable to predict the nature or magnitude of future revenue sources which may be provided by the State to replace lost property tax revenues. Article XIIIA effectively prohibits the levying of any other ad valorem property tax above those described above, even with the approval of the affected voters. Constitutional Challenges to Property Tax System There have been many challenges to Article XIIIA of the California Constitution. Recently, the United States Supreme Court heard the appeal in Nordlinger v. Hahn, a challenge relating to residential property. Based upon the facts presented in Nordlinger, the United States Supreme Court held that the method of property tax assessment under Article XIIIA did not violate the federal Constitution. The Agency cannot predict whether there will be any future challenges to California's present system of property tax assessment and cannot evaluate the ultimate effect on the Agency's receipt of tax increment revenues should a future decision hold unconstitutional the method of assessing property. Property Tax Collection Procedures In California, property that is subject to ad valorem taxes is classified as "secured" or "unsecured." The secured classification includes property on which any property tax levied by a county becomes a lien on that property sufficient, in the opinion of the county assessor, to secure payment of the taxes. Every tax levied by a county that becomes a lien on secured pr�perty has priority over all present and future private liens arising pursuant to State law on the secured property, regardless of the time of the creation of the other liens. A tax levied on unsecured property does not become a lien against the taxed unsecured property, but may become a lien on other property owned by the taxpayer. Secured and unsecured property are entered on separate parts of the assessment roll maintained by the county assessor. The payment of delinquent taxes with respect to property on the secured roll may be enforced only through the sale of the property securing the taxes to the State for the amount of taxes that are delinquent. Such property may thereafter be redeemed by payment of the delinquent taxes and penalties. Unsecured personal property taxes may be collected, in the absence of timely payment by the taxpayer, through (1) a civil action against the taxpayer; (2) filing a certificate of delinquency for record in the county recorder's office, in order to obtain a lien on property of the taxpayer; (3) seizure and sale of personal property, improvements or possessory interests belonging or assessed to the taxpayer; and (4) filing a certificate in the office of the County Clerk specifying certain facts in order to obtain a judgment lien on certain property of the taxpayer. The valuation of taxable property is determined as of January 1 each year, and equal installments of taxes levied upon secured property become delinquent on the following December 10 and April 10. Taxes on unsecured property are due on the lien date and become delinquent August 31, and such taxes are levied at the prior year's secured tax rate. 21 Supplemental Assessments A bill enacted in 1983, SB 813 (Statutes of 1983, Chapter 498), provides for the supplemental assessment and taxation of property as of the occurrence of a change of ownership or completion of new construction. Previously, statutes enabled the assessment of such changes only as of the next tax lien date following the change, and thus delayed the realization of increased property taxes from the new assessments for up to 14 months. As enacted, Chapter 498 provides increased revenue to redevelopment agencies to the extent that supplemental assessments as a result of new construction or changes of ownership occur within the boundaries of redevelopment projects subsequent to the lien date. To the extent such supplemental assessments occur within the Project Area, Tax Revenues may increase. Collection of taxes based on supplemental assessments will occur throughout the year. Taxes due will be pro-rated according to the amount of time remaining in the tax year, with the exception of tax bills dated the lien date through May 31, which will be calculated on the basis of the remainder of the current fiscal year and the full twelve months of the next fiscal year: Tax Collection Fees County auditors are authorized to determine p�roperty tax administration costs proportionately attributable to local jurisdictions, including redevelopment agencies, and to submit invoices to the jurisdictions for such costs. The projections of tax revenues take such administrative costs into account. Unitary Property Tax AB 454 (Statutes of 1987, Chapter 921) provides a revised method of reporting and allocating property tax revenues generated from most State-assessed unitary properties commencing with Fiscal Year 1988-89. Under AB 454, the State reports to each county auditor- controller only the county-wide unitary taxable value of each utility, without an indication of the distribution of the value among tax rate areas. AB 454 provides two formulas for auditor- controllers to use in order to determine the allocation of unitary property taxes generated by the county-wide unitary value, which are: (i) for revenue generated from the 1% tax rate, each jurisdiction is to receive up to 102% of its prior year unitary property tax increment revenue; however, if county-wide revenues generated from unitary properties are greater than 102% of prior year revenues, each jurisdiction receives a percentage share of the excess unitary revenues equal to the percentage of each jurisdiction's share of secured property taxes; (ii) for revenue generated from the application of the debt service tax rate to county-wide unitary taxable value, each jurisdiction is to receive a percentage share of revenue based on the jurisdiction's annual debt service requirements and the percentage of property taxes received by each jurisdiction from unitary property taxes. The provisions of AB 454 apply to all State-assessed property, except railroads and non- unitary properties the valuation of which will continue to be allocated to indiviclual tax rate areas. The provisions of AB 454 do not constitute an elimination or a revision of the method of assessing utilities by the State Board of Equalization. AB 454 allows, generally, valuation growth or decline of State-assessed unitary property to be �shared by all jurisdictions within a county. 22 Business Inventory and Replacement Revenue Prior to 1979, the State reimbursed cities, counties, special districts and redevelopment agencies that portion of taxes which would have been generated by the exempted portion of business inventory value (50%�. In 1979, the California Legislature enacted AB 66 (Statutes of 1979, Chapter 1150), eliminating the assessment and taxation of business inventory property and providing for replacement revenue for local agencies, except redevelopment agencies. In 1980, the California Legislature enacted AB 1994 (Statutes of 1980, Chapter 610), providing partial replacement revenue for the loss of business inventory revenues by redevelopment agencies. In 1990, the California Legislature amended Section 16112.7 of the California Government Code (Chapter 449, Statutes of 1990) which precludes redevelopment agencies from pledging special subvention revenues toward the payment af debt service for bonded indebtedness incurred after July 31, 1990 (the effective date of the legislation). The 1992-93 State Budget reduced the State's funding for the special subvention. As enacted under AB 222 (Chapter 188, Statutes of 1991), the Budget Act eliminated 1991-92 subvention payments for most redevelopment projects, including the Project Area. Additionally, the 1992-93 State Budget implemented further cuts in funding for the State's special subvention ta redevelopment agencies. As a result, these revenues are not included in the projections of estimated tax revenues. Proposition 87 Under prior State law, if a taxing entity increased its tax rate to obtain revenues to repay general obligation bonds appraved by two-thirds of the voters, the redevelopment agency with a project area which includes property affected by the tax rate increase woufd realize a proportionate increase in tax increment. Proposition 87, approved by the voters of the State on November 8, 1988, requires that all revenues produced by a tax rate increase (approved by the voters on or after January 1, 1989) go directly to the taxing entity which increases the tax rate to repay the general obligation bonded indebtedness. As a result, redevelopment agencies no longer receive an increase in tax increment when taxes on property in the project area are increased to repay voter approved general obligation debt. Future Initiatives Article XIIIA, Article XIIIB and Proposition 87 were each adopted as measures that qualified for the ballot pursuant to California's initiative process. From time to time other initiative measures could be adopted, further affecting revenues of the Agency or the Agency's ability to expend revenues. The nature and impact of these.measures cannot be anticipated by the Authority or Agency. � THE PROJECT AREA The Original Project Area On July 3, 1975, the Planning Commission approved the preliminary plan for the redevelopment of the Original Project Area. The Agency's report to the City Council requesting the proposed Redevelopment Plan for Project Area No. 1. indicated that the area had been sefected because of the existence of lots which were subject to being submerged by water, lots 23 of inadequate size for proper usefulness and development, inadequate streets, a probiem of traffic congestion, faulty interior arrangement of lots and buildings and exterior spacing, inadequate parking facilities and mixed character of development and shifting of land uses. The Original Project Area encompasses primarily the City's commercial strip along State Highway 111. The area includes mostly retail, office space and other commercial development and includes 580 acres within its boundaries. Following Agency meetings and hearings on the Redevelopment Plan, a joint public hearing was held with the City Council on June 12, 1975. On July 16, 1975 the Redevelopment Plan was adopted. The Original Project Area is generally bounded by the Palm Valley Stormwater Channel on the west, Alessandro on the north, EI Paseo on the south and Deep Canyon Road on the east. Parcels range in size from 5,000 square feet on the north side of Highway 111 to large undeveloped and developing parcels at the northwestern fringe of the Original Project Area. The Added Territory On October 16, 1981, the Planning Commission approved an amended preliminary plan in connection with the amendment to the Redevelopment Plan. The Agency's report to the City Council requesting the proposed amendment indicated that the amendment was necessary to add territory because (1) there existed commercial property and residential units subject to being submerged, inundated, damaged or destroyed by flooc! waters and accompanying debris, (2) there existed a lack of adequate flood control facilities designed to protect property and to insure access along roadways which cannot be remedied by private or governmental action without redevelopment and (3) there existed an economic dislocation throughout the Project Area, resulting from the clear and present danger of flash flooding, threats to public health, safety and welfare throughout the area. The area added by the amendment (the "Added Territory") included lands located within the Cities of Palm Desert, Indian Wells and unincorporated territory within the County of Riverside. The amendment added 5,240 acres to the existing 580 acres in the Original Project Area. The primary objectives of the Redevelopment Plan include the provision of flood control facilities to eliminate or alleviate flooding within the Project Area, the provision of drainage facilities; the provision of bridges across the Whitewater Channel at Monterey Avenue and Portola Avenue; and the provision of public safety buildings, correctional facilities, parking facilities, child care facilities and affordable housing, and the implementation of the City's Civic Center Master Plan and other Master Plans. The Redevelopment Plan also provides for the rehabilitation of public and private structures. Since its inception, the Project Area has experienced a diversity of development. Residential development has been predominant. Specific projects include: One Quail Place, an apartment project with 384 units; Palm Lake Village, a 220 unit apartment project; Hacienda De Monterey, a 180 unit congregate care and 99 bed nursing facility; and Canyon Cove, a 231 unit single family development, and 161 single family residential units in the Desert Rose development for resale to low and moderate income households. Current development includes Canyons at Bighorn, a 275 unit luxury home development with an estimated total projected project value of $500,000,000. The City has also developed a 73 acre Civic Center project which will provide recreation, law enforcement and governmental facilities. Commercial development in the Project Area includes seven shopping centers with over 2,000,000 square feet of retail shopping. This includes three major retail malls: the Westfield Palm Desert Shoppingtown, a regional indoor mall of 850,000 square feet; the Desert Crossings Mall, a 24 center of 514,000 square feet; and the Gardens of EI Paseo, a 200,000 square foot mall of high- end retail. . Limitations and Requirements of the Redevelopment Plan Original Territory. On December 11, 1986, the City adopted Ordinance No. 484 which limits the amount of tax revenues which can be divided and allocated to the Agency from the �riginal Project Area pursuant to the Redevelopment Plan to a maximum of $758,000,000. On December 8, 1994, the City adopted Ordinance No. 765 establishing P1an fimits required by Assembly Bill 1290 (Statutes of 1993, Chapter 942) ("AB 1290''} for Project Area No. 1, the Original and Added Territory. Qn February 27, 2003 the City adopted Ordinance No. 1035, amending the Redevelopment Plan as permitted by SB 211 to eliminate the time Iimit on incurring indebtedness (see below). For the Original Territory the AB 1290 and SB 211 Plan limits are as follows: 1. the term of the effectiveness of the Redevelopment Plan for the Original Territory of July 16, 2015; and 2. the time limit to receive tax increment generated from the Original Territory at ten (10) years beyond the termination of the effectiveness of the Redevelopment Plan, which is July 16, 2025, except that the Agency may continue to receive such necessary tax increment to pay indebtedness or other obligations issued or incurred prior to January 1, 1994 and for the financing of required housing and the elimination of deficits created pursuant to section 33334.6 of the Redevelopment Law. Added Territory. On January 24, 1991, the City approved the Sixth Amendment to the Redevelopment Plan (the "Amendment"} which limits the amount of tax revenues which can be divided and allocated to the Agency from the Added Territpry to a maximum of $500,000,000 (exclusive of amounts paid to any taxing agency, and exclusive of amounts used to pay debt service, directly or indirectly, on obligations of the Agency or any taxing agency, to finance the acquisition of land or the construction of buildings, facilities, structures, or improvements of such taxing agencies). The Sixth Amendment also limits the amount of bonded indebtedness which can be outstanding at one time to $200,000,000 (exclusive of bonds issued to finance the acquisition of land or the construction of buildings, facilities, structures or improvements of taxing agencies). For the Added Territory, the following AB 1290 Plan limits were adapted by Ordinance No. 765, and the SB 211 Plan limits were adopted by Ordinance No. 1035: 1. the term of the effectiveness of the Amended Redevelopment Plan for the Added Territory of November 25, 2021; and 2. the time limit to receive tax increment revenue generated from the Added Territory at ten (10) years beyond the termination of the effectiveness of the Amended Redevelopment Plan, which is November 25, 2031, except that the Agency may continue to receive such necessary tax increme.nt to pay indebtedness or other obligations issued or incurred prior to January 1, 1994 and for the financing of required housing and the elimination of deficits created pursuant to section 33334.6 of the Redevelopment Law. SB211 25 SB 211 (Statutes of 2001 Chapter 741) amended the Redevelopment Law by providing cities and redevelopment agencies with an alternative method of determining certain limitations of their redevelopment plans. On February 27, 2003 the City adopted Ordinance No. 1035, amending the Redevelopment Plan to eliminate the time limit on incurring indebtedness as permitted under SB 211. Pursuant to SB 211 and Ordinance No. 1035, the time limit to issue or incur debt of January 1, 2004 for both the Original and Added Territory previously established pursuant to AB 1290 has been eliminated. SB 211 provides that when a redevelopment plan is amended to eliminate the time limit to issue or incur debt, all existing pass-through agreements that provide for sharing of tax increment revenue shall remain unaffected, and certain statutory tax sharing for entities without tax sharing agreements will commence in the year following the year the former limitation would have taken effect. Thus, both the Original and Added Territory are subject to Section 33607,7 of the Redevelopment Law and the imposition of statutory pass- through payments for all those taxing entities with which the Agency has not entered into a tax sharing agreement (a "Statutory Entity"). These statutory payments are based upon new incremental revenue, above that which was received in the year the old limit would have taken effect (adjusted base year revenue). The statutory pass-through payments begin with first tier paymenYs equal to 25% of the Redevelopment Project's annual non-housing tax increment revenue (in excess of the adjusted base year revenue), applied to each Statutory Entity's share of the 1% levy. These statutory payments are subject to one subsequent increase that would become effective in the eleventh payment year, when the Agency will be required to pay an additional 21 % of the incremental increase in non-housing tax increment revenues exceeding amounts collected in the tenth payment year. Added Territory Projected to Reach Limit in Fiscal Year 2026-27 Based on the growth projections used in the Fiscal Consultant's Report, the Added Territory will reach its $500,000,000 tax increment limit in fiscal year 2026-27. The Agency has covenanted that it will annually review the total amount of Tax Revenues remaining available under the tax increment limit and under certain circumstances deposit current and future Tax Increment into a separate escrow account to be used exclusively to pay debt service on the Loan and all Parity Debt. See APPENDIX E"Summary of Principal Legal Documents - The Loan Agreement - Other Covenants of the Agency - Annual Review of Tax Revenues." There can be no assurance that this limit will be reached, or that it will not be reached at a date earlier or later than that projected in the Fiscal Consultant's Report. Furthermore, the tax increment limit may be changed by future acts of the State Legislature or amendments to the Redevelopment Plan by the Agency. „ TAX REVENUES Tax Revenues (as described in the section "SECURITY FOR THE BONDS" herein} derived each year from the levy and collection of taxes on any increase in the taxable valuation of land, improvements, personal property and public utility property in the Project Area, over and above the base year valuation for such property are to be deposited in the Special Fund, administered by the Agency and applied to the payment of the principal of and interest on the Loan. On May 15, 1991, the Riverside County Superior Court entered a final judgment incorporating a Stipulation for Entry of Judgment (the "Stipulation") among the Agency, the Western Center on Law and Poverty, Inc. and California Rural Legal Assistance in connection with litigation filed over the adoption of the Redevelopment Plan for Project Area No. 1, As Amended (Cify of Palm Springs v. Al1 Persons Interested,� etc., Case No. Indio 51143). On � June 18, 1997 and again on September 20, 2002, the Court entered amendments to its 1991 judgment, incorporating Stipulations Amending Stipulation for Entry of Judgment. Under the terms of the Stipulation, as amended, the Agency has generally agreed to use its 20 percent set aside funds, and other tax increment revenues, if necessary, to develop, rehabilitate, or otherwise financially assist a certain number of affordable housing units and to meet certain housing needs of the City. See "TAX REVENUES - Housing Set-Aside Requirements," The Stipulation, as amended, provides that future indebtedness incurred by the Agency will be payable on a basis which is prior to the obligations imposed by the Stipulation, as amended, if the Agency makes a finding by resolution, based upon a report, that the Agency will have sufficient revenues to meet that indebtedness as well as its obligations under the Stipulation, as amended. Under the terms of the Stipulation, as amended, notwithstanding its other terms, the Agency may incur indebtedness and pledge tax increment revenues to refinance its obligations, so long as (i) the total amount of debt service payable in connection with such refinancing is less than the total amount of debt service remaining to be paid on the refunded obligations, or (ii) the total amount of debt service payable in connection with such refinancing reflects a present value savings when compared with the total amount of debt service remaining to be paid on the refunded obligations. 27 Schedule of Historical Tax Revenues The following tables provide a schedule of the historical tax increment revenues attributable to the Project Area for the fiscal years shown. For further information regarding the historical tax increment revenues for the Project Area see "APPENDIX A— Fiscal Consultant's Report." Secured Valuation Unsecured Valuation Public Utilities Valuation Total Valuation Incremental Valuation Total Estimated Revenue�'� HISTORICAL TAX INCREMENT REVENUES Fiscal Years 1998-99 through 2003-04 Project Area No. 1, Original Territory 1998-99 1999-2000 2000-01 2001-02 2002-03 $498,060,577 $503,383,882 $553,055,808 $564,983,710 $582,303,437 77,623,129 78,624,524 94,299,080 9'8,578,075 95,53$,915 575,683,706 582,008,406 647,354,888 663,561,785 677,837,352 548,197,870 554,522,570 619,869,052 636,075,949 650,351,516 5,709,449 5,779,354 6,387,292 6,573,049 6,694,239 (1) Before payment of Pass-Through Agreements, Housing Set-Aside; after payment of County administration charge. Source: Rosenow Spevacek Group, Inc. Project Area No. 1, Added Territory Secured Valuation Unsecured Valuation Public Utilities Valuation Total Valuation Incremental Vaivation Total Estimated Revenue�'� 1998-99 1999-2000 $1,794,804,971 $1,879,979,931 41,180,344 44,403,681 0 0 1,835,985,315 1,924,383,612 1,179,920,256 1,268,318,553 11,727,661 12,620,447 2000-01 2001-02 2002-�3 $2,195,250,612 $2,578,872,509 $2,885,218,745 57,750,987 59,818,257 67,614,013 0 0 2,253,001,599 2,638,690,766 1,596,936, 540 1,982,625,707 15, 849, 752 19, 639, 510 0 2,952,832,758 2,296,767,699 22,759,729 (1) Before payment of Pass-Through Agreements, Housing Set-Aside; after payment of County administration charge. Source: Rosenow Spevacek Group, Inc. 2003-04 2003-04 28 Projected Taxable Valuation and Tax Revenue" Projected Taxable Valuafion and Tax Revenues"s The Agency has retained Rosenow Spevacek Group, Inc., Santa Ana, California to provide projections of tax increment revenues in the Project Area. The Agency believes the assumptions (set forth in the footnotes below) upon which the projections are based are reasonable; however, some assumptions may not materialize and unanticipated events and circumstances may occur (see "RISK FACTORS"). Therefore, the actual tax increment revenues received during the forecast period may vary from the pro}ections and the variations may be material. A summary of the projected tax increment revenues for the Project Area and the debt service coverage on the Parity Debt (the Loan, the 1997 Loan, the 2002 Loan, and the 2003 Loan) is set forth in the following table. For additional information regarding projected tax increment revenues see "APPENDIX A— Fiscal ConsultanYs Report. " PROJECTED TAX INCREMENT REVENUES AND DEBT S�RVI�CE COVERAGE Fiscal Years 2002-03 through 2011-12 Project Area No. 1, As Amended Fiscal Year Ending June 30 2004 2005 2006 2007 2008 2009 2000 2011 2012 Total Project Existing Area Net Tax ParityDebt fncrement �'� Servic� $14,438,782 14,798,523 15,036,220 15,306,387 15,525,524 15,832,184 16,061,970 16,374,711 16,615,990 Loan Debt Total Parity Coverage Service Debt Service �3� Ratio (1) Amounts are net of pass-through agreement payments and low and moderate income housing fund payments. (2) Combined debt service on the 1997 Loan, 2002 Loan and 2003 Loan. (3) Combined debt service on the Loan, the 1997 Loan, 2002 Loan and 2003 �oan. Sources: Rosenow Spevacek Group, Inc., and Citigroup. 29 Top Fifteen Taxpayers The following table lists the fifteen largest property tax payers in the Project Area. The top fifteen taxpayers account for % of the total property tax roll in the Project Area. PROJECT AREA NO. 1, AS AMEND�D FISCAL YEAR 2003-04 TOP FIFTEEN Ti4XPi41(ERS 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. Owner WEA Palm Desert Property California SCJLW One Corporation EI Paseo Properties, LP Big Harn Development Dayton Hudson Corporation Federated Western Properties, Inc. Nationwide Health Properties, Inc. David Langman Trust May Company Department Stores Adcor Realty Corporation Felcor Suites Limited Partnership M&H Realty Partners III Prime Portfolio Summit Cable Service of Georgia Town Center Plaza Total AV - 7op Fifteen Taxpayers AsSessed Percentage of Value Total Roll Fiscal Year 2003-04 Total Assessed Value: $ Source: Rosenow Spevacek Group Inc. Filing of Statement of lndebtedness Section 33675 of the Redevelopment Law requires that the Agency file, not later than the first day of October of each year with the county auditor, a statement of indebtedness certified by the chief financial officer of the Agency for each redevelopment project for which the redevelopment plan provides for the division of taxes pursuant to section 33670 of the Redevelopment Law. The statement of indebtedness is required to contain, among other things, the date on which the bonds were delivered, the principal amount, term, purpose, interest rate and total interest of the bonds, the principal amount and the interest due in the fiscal year in which the statement of indebtedness is filed and the outstanding balance and amount due on the bonds. Similar information must be� given for each loan, advance or indebtedness that the Agency has incurred or entered into which is payable from tax increment. Section 33675(g) has been amended by AB 1290 to provide ttiat payments of tax increment revenues from the county auditor to a redevelopment agency may not exceed the redevelopment agency's aggregate total outstanding debt service obligations minus the available revenues of the redevelopment agency, and establishes certain procedures under which a county auditor may, in certain cases, dispute the amount of indebtedness shown on the statement of indebtedness. Payments to a trustee under a band reso{ution or indenture or payments to a public agency in connection with payments b�y such public agency pursuant to a bond issue may not be disputed in any action under Section 33675. 30 The Agency has determined that the amendments to Section 33675 limiting the payment of tax revenues to an amount not greater than the difference between a redevelopment agency's total outstanding debt obligations and total available revenues, as reported on the redevelopment agency's reconciliation statement, will not have an adverse impact on the Agency's ability to meet its debt service obligations. Housing Set-Aside Requirements In accordance with Section 33334.2 of the Redevelopment Law, not less than twenty percent (20%) of all taxes which are allocated to the Agency shall be used by the Agency for purposes of improving, increasing and preserving the City's. supply of housing for persons and families of low or moderate income (including the payment of indebtedness issued or incurred for such purposes). This requirement is applicable unless the Agency makes the finding that: 1. No need for such housing exists in the City; 2. Less than twenty percent (20%) is sufficient to meet such housing needs of the City; or 3. A substantial effort is presently being carried out with other funds (either local, State or federal) and that such efforts are equivalent in impact to twenty percent (20%) of all taxes which are allocated to the Agency. Both the "no need" finding (item 1 above) and the "less than 20% finding" (item 2 above) must apply to very low income as well as low and moderate income households, must be consistent with the housing element of the community's general plan and the annual report of its planning agency, and do not become effective until after certain filings have been made with the State Department of Housing and Community Development ("HCD"). Neifher finding can be made unless the housing element is in proper form and up to date and has been filed with HCD. The "equivalent effort" finding (item 3 above) must apply to the community's share of regional housing needs as well as its own existing and projected needs. After June 30, 1993, no agency may make this finding unless it can show evidence that it is required in order to meet contractual obligations to bondholders or other private entities incurred prior to May 1, 1991 and made in reliance on the on the ability to make the finding. The Agency has made no such findings. Funds available from the twenty percent (20%) requirement may be used outside the Project Area on a finding by the Agency and the City Council that such use will be of benefit to the Project Area. See "TAX REVENUES". The Redevelopment Law also permits agencies with more than one project area to set aside less than twenty percent (20%) of the taxes allocated to the agency from one project area if the difference is made up from another project area in the same year and if the agency and the legislative body of the community find that such use of funds will benefit such other project area. PALM DESERT FINANCING AUTHORITY The Authority is a joint powers authority whose members are the City and the Agency. The Authority is duly organized and existing under a Joint Exercise of Powers Agreement dated January 26, 1989, by and between the City and the Agency, and under the provisions of 31 Chapter 5 of Division 7 of Title 1 of the California Government Code. The officers of the City and the Agency serve as the officers of the Authority. The Authority has no taxing power, and has no source of revenue other than the Revenues for paying the debt service on the Bonds. PALM DESERT REDEVELOPMENT AGENCY Authority and Management The Agency was established pursuant to the Redevelopment Law. The City Council adopted Ordinance No. 53 on October 24, 1974, which activated the Agency. The Agency is governed by a five-member board which consists of all members of the City Council of the City of Palm Desert. The Mayor who acts as Chairperson of the Agency is appointed by the City Council. City Council members, their occupations and term expiration dated are as follows: Board Member Term Exaires Occunation Jean M. Benson, Chairman November, 2006 Retired Businesswoman Robert A. Spiegel, Vice Chairman November, 2004 Retired Businessman Buford A. Crites, Commissioner November, 2004 College Professor J a m e s C. F e r g u s o n, November, 2006 Attorney at Law Commissioner Richard S. Kelly, Commissioner November, 2004 Retired Businessman The professional staff of the Agency presently includes the following: Carlos L. Ortega was appointed City Manager in August 2000. He has also served as Executive Director of the Agency, a position he has held since 1983. Mr. Ortega has also served as Assistant City Manager from 1980 until 1995, and Assistant to the City Manager from 1977 to 1980. Prior to 1977, he served as Interim City Manager (one year) and Assistant City Manager/Finance Director (five years) for the City of Coachella, California. Mr. Ortega received a Bachelor of Science degree in Economics from University of California, Riverside, and has completed graduate studies in Public Administration and Management at University of California, Riverside and the University of Redlands. � Justin McCarthy has served as the Assistant City Manager for Redevelopment since November, 2001. Mr. McCarthy began his career as an analyst in the City of Long Beach implementing redevelopment projects in the downtown central business district, the port industrial area and Long Beach Airport. He served for two years as the Redevelopment Manager for the San Diego Southeast Economic Development Corporation managing industrial and commercial projects. For the last thirteen years Mr. McCarthy served as the Deputy Executive Director and Community Development Director for the City of Commerce. During his career he has implemented millions of square feet of public/private projects valued at approximately $1 billion. . Homer Croy serves as the Assistant City Manager for Development Services. The Development Services Division is comprised of three departments: Building and Safety, Community Development and Public Works. Mr. Croy has been employed by the City since 2000, when he was hired to serve as the Director of Building and Safety. Mr. Croy has been employed in city government service since 1985, having served in the cities of Pomona, San Gabriel, and Simi Valley. During his tenure in government service, Mr. Croy has had direct 32 experience with earthquake disaster recovery, project design and construction, FEMA floodplain management, and construction management. Ms. Sheila R. Gilligan serves as the Assistant City Manager for Community Services, a position she has held since 2000. She is responsible for the areas of Administration (including grants and franchise agreements), Human Resources, City Clerk, Civic Arts, Marketing and Promotion, Public Information, the Visitor's Information Center, and special events for the City. Prior to her current position, Ms, Gilligan served as the Director of Community Affairs while also serving as the City Clerk. Ms. Gilligan served as City Clerk from 1976 to June, 2001. Ms. Gilligan has been active in the civic affairs for the City, and, is the Past President of Soroptimist International of Palm Desert and also served on the Board of Directors of the Family Y.M.C.A., the Palm Desert Youth Center, the Haymen Center, and is currently President of the Desert Cancer Foundation. Mr. Paul S. Gibson serves as Treasurer/Finance Director of the Agency and the City of Palm Desert, a position he has held since 1988. Prior to this position, Mr. Gibson served for three years as the Accounting Supervisor for the City. Subsequent to this date, Mr. Gibson spent five years with Imperial County as the Accountant-Auditor for the Auditor Controller's office. Mr. Gibson holds a Bachelor of Science degree in Accounting from San Diego State University. David L. Yrigoyen serves as the Director of Redevelopment with the Agency. Prior to his current position and beginning in 1985, Mr. Yrigoyen served as the Senior Administrative Assistant to the Agency and then as Redevelopment Manager. Prior service includes work with the City of Coachella, California, as the Economic Development Coordinator, a position he held since 1982. Mr. Yrigoyen received a Bachelor of Arts degree in Political Science from University of California, Berkeley, and a Master of Arts degree in Management from National University, San Diego. Rachelle D. Klassen started with the City's Finance Department in June, 1995. Since 1997 she has worked in the City Clerk's Office; initially as the Records Technician, appointed Deputy City Clerk in 1998, and City Clerk on July 1, 2002. She received Certified Municipal Clerk status from the International Institute of Municipal Clerks in October, 2001. As City Clerk, she also serves as Secretary to the Redevelopment Agency, Housing and Financing Authorities, with responsibilities of preparing and presenting all agendas and minutes for same, maintaining all official City/Agency/Authority records, as well as the related duties of City elections and being available to the public for information on legislative and administrative actions. Her background includes an Associate in Arts Degree, with honors, from Waldorf College, Forest City, lowa, with continuing units obtained at College of the Desert since relocating to the Coachella Valley. For the 12 years before relocating to California, she was administrative assistant to both the president and vice� president of the world's largest manufacturer of grain drying and handling equipment. Dennis M. Coleman serves as the Agency's Redevelopment Finance Manager, and formerly held the position of Accountant from 1992 to 1994. Mr. Coleman is responsible for the financial activities of Agency and coordinates the bond issues for the Agency, as well as the City. He has coordinated 15 issues totaling $324.7 million. Mr. Coleman previously served as a Finance Manager, for three years, with the Southeastern Economic Development Corporation (SEDC), a non-profit corporation of the City of San Diego. Mr. Coleman previously served as a Financial Analyst, for seven years, with the San Diego Metropolitan Transit Development Board (MTBD) in San Diego, California. 33 Jose Luis Espinoza, CPA, was promoted to Assistant Finance Director in June 2003, before which he served as the Finance Operations Manager for the City, a position he held since 1998. He is responsible for preparing the Agency's and the City's Finance Statements, federal and state reports, and supervising the day-to-day operations of the Finance Department staff with the assistance of the Director of Finance. Prior to this position, Mr. Espinoza spent four years as an auditor focusing on governmental agency audits. Mr. Espinoza received a Bachelor of Science in Business Administration with an emphasis in Accounting from Humboldt State University. Ms. Janet M. Moore has been with the Agency for over fifteen years and currently holds the position of Senior Management Analyst. She is responsible for compiling the federal and state reports for the Agency's housing department, and oversees the accounting duties for the Housing Department, Ms. Moore assists the Director of Housing with the administration of all housing programs and projects. Ms. Moore received a Bachelor of Arts degree, with honors, in Business Administration from California State University at San Bernardino. Agency Powers The Agency is charged with the responsibility of eliminating blight within its redevelopment project areas through the process of redevelopment. Generally, this process culminates when the Agency disposes of land for development by the private sector. Before this can be accomplished, the Agency must complete the process of acquiring and assembling the necessary sites, relocating residents and businesses, demolishing the deteriorated improvements, grading and preparing the sites for purchase by developers and providing for ancillary offsite improvements. All powers of the Agency are vested in its five members. The Agency exercises all of the governmental functions authorized under the Redevelopment Law in carrying out projects and has sufficient broad authority to acquire, develop, administer and sell or lease property, including the right of eminent domain and the right to issue bonds, notes and other evidences of indebtedness and expend their proceeds. The Agency can clear buildings and other improvements and develop as a building site any real property owned or acquired, and in connection with such development, cause streets, highways and sidewalks to be constructed or reconstructed and public utilities to be installed. Redevelopment in the State of California may be carried out pursuant to the Redevelopment Law. Section 33020 of the Redevelopment Law defines redevelopment as the planning, development, replanning, redesign, clearance, reconstruction or rehabilitation, or any combination of these, of all or part of a survey area and the provision of such residential, commercial, industrial, public or other structures or spaces as may be appropriate or necessary in the interest of the general welfare, including recreational and other facilities incidental or appurtenant to them. The Agency may, out of the funds available to it for such purposes, pay for all or part of the cost of land and buildings, facilities, structures or other improvements to be publicly owned, to the extent that such improvements are of benefit to the relevant project area or the immediate neighborhood in which the project is located no other reasonable means of financing is available. and the payment of funds will assist in the elimination of one or more blighting conditions inside the project area or provide housing for low and moderate income persons and is consistent with the implementation plan adopted pursuant to section 33490 of the Redevelopment Law. The Agency must sell or lease remaining property within a project area for redevelopment by others 34 in strict conformity with the applicable redevelopment plan, and may specify a period within which such redevelopment must begin and be completed. Financial Information Included in this Official Statement, as APPENDIX C, are the audited financial statements of the Agency for the Fiscal Year ended June 30, 2003. Redevelopment Project Areas . The Agency is presently charged with the responsibility of the ongoing administration and implementation of four redevelopment project areas within the City. Pass-Through Agreements The Agency has entered into several agreements to pay tax increment revenues to certain taxing agencies entitled to receive ad valorem taxes from property located within the Project Area in an amount which in the Agency's determination is appropriate to alleviate any financial burden or detriment caused by redevelopment activities within the Project Area. These agreements normally provide for a pass-through of tax increment revenues directly to the affected taxing agency, and therefore are commonly referred to as "pass-through agreements" or "tax-sharing agreements." See "APPENDIX A— Fiscal Consultant's Report" for a description of these pass-through agreements. Regulatory Issues The Agency is in compliance with the provisions of the California Environmental Quality Act, constituting Division 13 (commencing with Section 21000) of the California Public Resources Code with respect to the Project Area. VERIFICATION OF MATHEMATICAL COMPUTATIONS The arithmetical accuracy of certain computations included in the schedules provided by the Agency or the Authority relating to (a) computation of forecasted receipts of principal and interest on amounts deposited with the trustee for the 1995 Bonds and the forecasted payments of principal and interest to redeem the 1995 Bonds, and (b) computation of the yields on the Bonds will be examined by (the "Verification Agent"). Such computations are based solely upon assumptions and information supplied by the Agency or the Authority. The Verification Agent has restricted its procedures to examining the arithmetical accuracy of certain computations and has not made any study or evaluation of the assumptions and information upon which the computations are based and, accordingly, has not expressed an opinion on the data used, the reasonableness of the assumptions, or the achievability of the forecasted outcome. CONCLUDING INFORMATION Continuing Disclosure The Agency will undertake all responsibilities for continuing disclosure to Owners of the Bonds as described below. The Insurer as a provider of municipal bond insurance is not subject to the continuing disclosure requirements of Securities and Exchange Commission Rule 15c2- 12, and the Agency will not provide any ongoing disclosure with respect to the Insurer. 35 The Agency will covenant for the benefit of Bondholders to provide certain financial information and operating data relating to the Agency and the Project Area by not later than six months after the end of the Fiscal Year to which such information pertains, commencing with the 2003-04 Fiscal Year (the "Annual Report"), and to provide notices of the occurrence of certain enumerated events, if material. The Annual Report will be filed with each Nationally Recognized Municipal Securities Information Repository �and with any then existing State Repository (collectively, the "Repositories"). Currently, there is no State Repository. The notices of material events will be filed with the Municipal Securities Rulemaking Board. The specific nature of the information to be contained in the Annual Report or the notices of material events is described in "APPENDIX G- FORM OF CONTINUING DCSCLOSURE AGREEMENT" attached hereto. These covenants will be made in order to assist the Underwriters in complying with Securities and Exchange Commission Rule 15c2-12(b)(5). The Agency has not failed to comply in any material respect with any of its other continuing disclosure undertakings under Rule 15c2-12(b)(5). Underwriting The Underwriter expects to purchase the Bonds at a purchase price of $ , representing the principal amount of the Bonds, less an Underwriter's discount of $ , plus an initial issue premium of $ . The Underwriter intends to offer the Bonds to the public initially at the prices set forth on the inside front cover page of this Official Statement, which prices may subsequently change without any requirement of prior notice. The Underwriter reserves the right to join with dealers and other underwriters in offering the Bonds to the public. The Underwriter may offer and sell the Bonds to certain dealers (including dealers depositing Bonds into investment trusts) at prices lower than the public offering prices, and such dealers may reallow any such discounts on sales to other dealers. Legal Opinion The Bond Counsel firm of Richards, Watson & Gershon, A Professional Corporation, Los Angeles, California, will render its final approving legal opinion with respect to the Bonds substantially in the form set forth in APPENDIX B hereto. The legal opinion is only as to legality� of the Bonds and is not intended to be nor is it to be interpreted or relied upon as a disclosure document or an express or implied recommendation as to the investment quality of the Bonds. Tax-Exempt Status of the Bonds The Internal Revenue Code of 1986, as amended (the "Code"), imposes certain requirements that must be met subsequent to the issuance and delivery of the Bonds for interest thereon to be and remain excluded pursuant to section 103(a) of the Code from the gross income of the owners thereof for federal income tax purposes. Noncompliance with such requirements could cause the interest on the Bonds to be included in the gross income of the owners thereof for federal income tax purposes retroactive to the date of issuance of the Bonds. The Authority and the City have covenanted to maintain the exclusion of the interest on the Bonds from the gross income of the owners thereof for federal income tax purposes. In the opinion of Richards, Watson & Gershon, A Professional Corporation, Bond Counsel, under existing law, interest on the Bonds is exempt from personal income taxes of the State of California and, assuming compliance with the aforementioned covenant, interest on the 36 Bonds is excluded pursuant to section 103(a) of the Code from the gross income of the owners thereof for federal income tax purposes. Bond Counsel is also of the opinion that, assuming compliance with the aforementioned covenant, the Bonds are not "specified private activity bonds" within the meaning of section 57(a)(5) of the Code-and, therefore, the interest on the Bonds will not be treated as an item of tax preference for purposes of computing the alternative minimum tax imposed by section 55 of the Code. The receipt or accrual of interest on the Bonds owned by a corporation may affect the computation of its alternative minimum taxable income, upon which the alternative minimum tax is imposed, to the extent that such interest is taken into account in determining the adjusted current earnings of that corporation (75 percent of the excess, if any, of such adjusted current earnings over the alternative minimum taxable income being an adjustment to alternative minimum taxable income (determined without regard to such adjustment or to the alternative tax net operating loss deduction)). Bond Counsel has not undertaken to advise in the future whether any events after the date of issuance of the Bonds may affect the tax status of interest on the Bonds or the tax consequences of the ownership of the Bonds. No assurance can be given that future legislation, or amendments to the Code, if enacted into law, will not contain provisions that could directly or indirectly reduce the benefit of the exemption of interest on the Bonds from personal income taxation by the State of California or of the exclusion of the interest on the Bonds from the gross income of the owners thereof for federal income tax purposes. Furthermore, Bond Counsel expresses no opinion as to any federal, state or local tax law consequences with respect to the Bonds, or the interest thereon, if any action is taken with respect to the Bonds or the proceeds thereof predicated or permitted upon the advice or approval of counsel other than Bond Counsel. Although Bond Counsel is of the opinion that interest on the Bonds is exempt from state personal income tax and excluded from the gross income of the owners thereof for federal income tax purposes, an owner's federal, state or local tax liability may be otherwise affected by the ownership or disposition of the Bonds. The nature and extent of these other tax consequences will depend upon the owner's other items of income or deduction. Without limiting the generality of the foregoing, prospective purchasers of the Bonds should be aware that (i) section 265 of the Code denies a deduction for interest on indebtedness incurred or continued to purchase or carry the Bonds or, in the case of a financial institution, that portion of an owner's interest expense allocated to interest on the Bonds, (ii) with respect to insurance companies subject to the tax imposed by section 831 of the Code, section 832(b)(5)(B)(i) reduces the deduction for loss reserves by 15 percent of the sum of certain items, including interest on the Bonds, (iii) interest on the Bonds earned by certain foreign corporations doing business in the United States could be subject to a branch profits tax imposed by section 884 of the Code, (iv) passive investment income, including interest on the Bonds, may be subject to federal income taxation under section 1375 of the Code for Subchapter S corporations that have Subchapter C earnings and profits at the close of the taxable year if greater than 25% of the gross receipts of such Subchapter S corporation is passive investment income, (v) section 86 of the Code requires recipients of certain Social Security and certain Railroad Retirement benefits to take into account, in determining the taxability of such benefits, receipts or accruals of interest on the Bonds and (vi) under section 32(i) of the Code, receipt of investment income, including interest on the Bonds, may disqualify the recipient thereof from obtaining the earned income credit. Bond Counsel has expressed no opinion regarding any such other tax consequences. 37 No Litigation � There is no action, suit or proceeding known to the Authority to be pending or threatened, restraining or enjoining the execution or delivery of the Bonds or the Indenture or in any way contesting or affecting the validity of the foregoing or any proceedings of the Authority taken with respect to any of the foregoing. Ratings The Bonds are rated " " by Standard & Poor's Ratings Group and " " by Fitch Ratings. The ratings reflect the coverage of payment when due of principal of and interest on the Bonds by a municipal bond insurance policy to be issued by the Insurer simultaneously with the issuance of the Bonds. The ratings reflect only the views of the rating organizations, and explanations of the significance of the ratings may be obtained from Fitch Ratings, One State Street Plaza, New York, New York 10004 and Standard & Poor's Ratings Group, 55 Water Street, New York, New York, 10041. There is no assurance that the ratings will continue for any given period of time or that they will not be revised downward or withdrawn entirely by the rating agencies, if in the judgment of the rating agencies circumstances so warrant. Any such downward revision or withdrawal of the ratings may have an adverse effect on the market price of the Bonds. Miscellaneous All of the preceding summaries of the Loan Agreement, the Indenture, the Bond Law, the Redevelopment Law, other applicable legislation, the Redevelopment Plan for the Project Area, agreements and other documents are made subject to the provisions of such documents respectively and do not purport to be complete statements of any or all of such provisions. Reference is hereby made to such documents on file with the Authority for further information in connection therewith. This Official Statement does not constitute a contract with the purchasers of the Bonds. Any statements made in this Official Statement involving matters of opinion or estimates, whether or not expressly stated, are set forth as such and not as representations of fact, and no representation is made that any of the estimates will be realized. The execution and delivery of this Official Statement, by the Chief Administrative Officer of the Authority have been duly authorized by the Authority. PA�M DESERT FINANCING AUTH�RITY Chief Administrative Officer � APPENDIX A FISCAL CONSULTANT'S REPORT A-1 APPENDIX B FORM OF OPINION OF BOND COUNSEL [Closing Date] Palm Desert Financing Authority 73-519 Fred Waring Drive Palm Desert, California 92260 Opinion of Bond Counsel with reference to $ * Palm Desert Financing Authority Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended) 2004 Series A Ladies and Gentlemen: � We have examined (i) a record of proceedings relating to the issuance of the above- captioned bonds (the "Bonds") of the Palm Desert Financing Authority, a public entity of the State of California (the "Authority"); (ii) the Indenture of Trust, dated as of June 1, 2004 (the "Indenture"), by and between the Authority and BNY Western Trust Company, as trustee (the "Trustee"); (iii) the Project Area No. 1, As Amended, Loan Agreement, dated as of June 1, 2004 (the "Loan Agreement"), by and among the Authority, the Palm Desert Redevelopment Agency (the "Agency") and the Trustee; and (iv) such other matters of law as we have deemed necessary to enable us to render the opinions expressed herein. As to questions of fact material to this opinion, we have relied upon such certificates and documents without undertaking to verify the same by independent investigation. The Bonds are issued under and pursuant to the Indenture and the provisions relating to the joint exercise of powers found in Chapter 5 of Division 7 of Tifle 1 of the Government Code of California, as amended (the "Act"), including the provisions of the Marks-Roos Local Bond Pooling Act of 1985, constituting Arficle 4 of the Act. The Bonds are issued for the purpose of making a Loan to the Agency to finance certain public capital improvements for the benefit of the Project Area. � Capitalized terms used herein which are not defined herein shall have the meanings given such terms in the Indenture. We are of the opinion that: The Authority is duly created and validly existing under the provisions of the Act. B-1 2. The Authority has the right and power to enter into and carry out its obligations under the Loan Agreement and has duly authorized, executed and delivered the Loan Agreement, which (assuming due authorization, execution and delivery by the Trustee) constitutes a valid and binding agreement of the Authority enforceable in accordance with its terms. 3. The Authority has the right and power to enter into the Indenture, and the Indenture has been duly and lawfully authorized, executed and delivered by the Authority, and (assuming due authorization, execution and delivery by the Trustee) is in full force and effect in accordance with its terms and is valid and binding upon the Authority and enforceable in accordance with its terms, and no other authorization for the Indenture is required. The Indenture creates the valid pledge which it purports to create of (i) the Revenues (as defined in the Indenture) and (ii) certain funds established by the Indenture, including the investments, if any, thereof; subject only to the provisions of the Indenture permitting the application thereof for the purposes and on the terms and conditions set forth in the Indenture. 4. The Authority is duly authorized and entitled to issue the Bonds, and the Bonds have been duly and validly authorized and issued by the Authority in accordance with the Constitution and statutes of the State of California, including the Act, and in accordance with the Indenture. The Bonds constitute the valid and binding obligations of the Authority as provided in the Indenture, are enforceable in accordance with their terms and the terms of the Indenture and are entitled to the benefits of the Act and the Indenture. The Bonds are not an obligation of the State of California, any public agency thereof (other than the Authority), or any member of the Authority and neither the faith and credit nor the taxing power of the State of California or any public agency thereof or any member of the Authority is pledged for the payment of the Bonds. The Authority has no taxing power. 5. The Agency has the right and power to enter into and carry out its obligations under the Loan Agreement and has duly authorized, executed and delivered the Loan Agreement, which (assuming due authorization, execution and delivery by the Trustee) constitutes a valid and binding agreement of the Agency enforceable in accordance with its terms. The Loan Agreement creates the valid pledge which it purports to create of the Tax Revenues (as defined in the Loan Agreement) and the Reserve Fund, subject only to the provisions of the Loan Agreement permitting the application thereof for the purposes and on the terms and conditions set forth in the Loan Agreement. 6. Interest on the Bonds is exempt from personal income taxes of the State of California and, assuming compliance with the covenant describecl below, is excluded from gross income for Federal income tax purposes. The Bonds are not "specified private activity bonds" within the meaning of Section 57(a)(5) of the Internal Revenue Code of 1986, as amended (the "Code") and, therefore, the interest on the Bonds will not be treated as a preference item for purposes of computing the alternative minimum tax imposed by Section 55 of the Code. However, we note a portion of the interest on Bonds owned by corporations may be subject to the Federal alternative minimum tax, which is based in part on adjusted current earnings. The Code sets forth certain requirements which must be met subsequent to the issuance and delivery of the Bonds for interest thereon to be and remain excluded from gross income for Federal income tax purposes. Noncompliance with such requirements could cause the interest on the Bonds to be included in gross income retroactive to the date of issue of the Bonds. The Authority has covenanted in the Indenture to satisfy, or take such actions as may be necessary to cause to be satisfied, each provision of the Code necessary to maintain the exclusion of the � interest on the Bonds from gross income fior Federal income tax purposes pursuant to Section 103(a) of the Code. Certain requirements and procedures contained or referred to in the Indenture and other relevant documents may be changed and certain actions may be taken, under the circumstances and subject to the terms and conditions set forth in such documents, upon the advice or with the approving opinion of nationally recognized bond counsel. We express no opinion as to any Bond, or the interest thereon, if any change occurs or action is taken upon the advice or approval of other bond counsel. Except as stated in the foregoing paragraph numbered 6 and the paragraph immediately following paragraph 6, we express no opinion as to any Federal or state tax consequences of the ownership or dispositian of the Bonds. The opinions expressed in the paragraphs numbered 2, 3, 4 and 5 hereof are qualifed to the extent that the enforceability of the Loan Agreement, the Indenture and the Bonds may be limited by any applicable bankruptcy, insolvency, debt adjustment, moratorium, reorganization or other similar laws affecting creditors' rights generally or as to the availability of any particular remedy. Respectfully submitted, B-3 APPENDIX C AGENCY AUDITED FINANCIAL STATEMENTS FOR FISCAL YEAR ENDED JUNE 30, 2003 G1 APPENDIX D CITY OF PALM DESERT GENERAL INFORMATION The fo!lowing information concerning the City of Palm Desert, the County of Riverside and surrounding areas is included only for the purpose of supplying general information regarding the communify. The Bond and fhe Loan are not an obligation of the City. The fo!lowing information concerning the Cify and surrounding areas are included only for the purpose of supplying general information regarding the communify. The Loca! Obligations and the Bonds are nof a debf of the City, the State, or any of its political subdivisions and neither said City, said State, nor any of its polrtical subdivisions is liable therefor. See fhe section herein entitled "SECURITY FOR THE BONDS AND SOURCES OF PAYMENT THEREFOR. " General Description The City of Palm Desert (the "City") is located in the central portion of the Coachella Valley and is approximately midway between the cities of Indio and Palm Springs, 117 miles east of Los Angeles, 118 miles northeast of San Diego� and 515 miles southeast of San Francisco.� The City is bounded by Indian Wells to the east, Rancho Mirage to the west, the Santa Rosa mountains to the south and Interstate 10 to the north. Palm Desert is approximately 250 feet above sea level and is the point of termination for State Highway 74, the most direct access to the San Diego area. The City was incorporated on November 26, 1973, as a general law city. In 1997 the City became a charter city. Elevation of the City is 243 feet and the mean temperature is 73.1 degrees. Except for the summers, the weather is mild and annual average rainfall is 3.38 inches. The City occupies an area of 24.75 square miles. � Government Voters elect a five member City Council to four-year overlapping terms. The City Council selects one of its members to serve as Mayor and appoints a City Manager to conduct the day-to-day business of the City. Population The following sets forth the City, the County and the State population estimates as of January 1 for the years 1999 to 2003: - CITY OF PALM DESERT, RIVERSIDE COUNTY AND STATE OF CALIFORNIA Estimated Population Year (January 11 1999 2000 2001 2002 2003 City of Palm Desert 39,500 41,000 41,900 42,900 43,900 Riverside Countv 1,490,500� 1,533,800 1,583,600 1,644,300 1,705,500 State of California 33,140,000 33,753,000 34,385,000 35,037,000 35,591,000 Source: State of California Department of Finance, Demographic Research Unit. � Taxable Transactions Total taxable transactions reported in the City during the first two quarters of calendar year 2002 amounted to $619,289,000, a 2.1 % decrease over the total taxable transactions of $632,704,000 that were reported for the first two quarters of calendar year 2001. A summary of historic taxable sales within the City is shown in the following table. CITY OF PALM DESERT Taxable Retail Sales Number of Permits and Valuation of Taxable Transactions (Dollars in Thousands) Retail Stores Number of Permits 1997 1,080 1998 1,109 1999 1,256 2000 1,376 2001 1,529 Taxable Transactions $82,759 768,553 912,663 1,020,025 1,015,932 Total All Outlets Number of Permits 2,354 2,363 2,549 2,627 2,833 Taxable Transactions $829,820 923,979 1,098,211 1,217,986 1,211,069 Source: Galifornia State Board of Equalization, Taxable Sales in• California (Sales & Use Tax). Total taxable transactions reported in the County during the first two quarters of calendar year 2002 amounted to $9,456,523,000, a 6.1 % increase over the total taxable transactions of $8,913,468,000 that were reported for the first two quarters of calendar year 2001. A summary of historic taxable sales within the County is shown in the following table. RIVERSIDE COUNTY Taxable Retail Sales - Number of Permits and Valuation of Taxable Transactions (Dollars in Thousands) Retail Stores Number of Permits 1997 13,036 1998 13,408 1999 14,676 2000 15,771 2001 16,785 Taxable Transactions $8,508,010 9,276,448 10,685,724 12,190,474 13,173,281 Total All Outlets Number of Permits 34,212 33,623 34,117 35,153 36,292 Taxable Transactions $11,972,371 13,140,854 15, 076, 945 16,979,449 18,231,555 Source: California State Board of Equalization, Taxable Sales in California (Sales & lJse Tax). D-2 Employment The City is located in the County of Riverside . The largest employers in the Riverside County labor market as of January 2003, are shown in the foliowing tables. COUNTY fJF RIVERSIDE Major Employers "� As of January 2003 Companv Name County of Riverside University of California, Riverside Stater Bros. Markets Corona-Norco Unified School District Riverside Unified School District Wal-Mart Stores Inc. Riverside Community College Guidant Corp. Kaiser Permanente Medical Center Moreno Valley Unified School District City of Riverside Murrieta Valiey Unified School District Hemet Valley Health System Hemet Unified School District Eisenhower Medical Center Temecula Valley Unified School District Lake Elsinore Unified School District Jurupa Unified School District Casino Morongo Palm Springs Unified School District Riverside County Office of Education Alvord Unified School District Fleetwood Enterprises Inc. KSL Desert Resorts Inc. Desert Regional Medical Center Location Countywide Riverside Countywide Corona/Norco Riverside Countywide Riverside Temecula Riverside Moreno Valley Riverside Mu rrieta Hemet Hemet Rancho Mirage Temecufa Lake Elsinore Riverside Cabazon Palm Springs Riverside Riverside Riverside La Quinta Palm Springs ProducUService Government Education Supermarkets Education Education Retail Education Medical Devices Health Care Education Government Education Health Care Education Health Care Education Education Education lndian Gaming Casino Education Education Education RV Manufacturing Resort, Golf Club Health Care Number of Emqlovees 16,726 9,822 5,320 4,800 3,906 3,550 3,350 3,300 2, 886 2,836 2,600 2,305 2,200 2,000 1,900 1,888 1,863 1,792 1,650 1,606 1, 600 1,590 1,550 1,525 1,500 (1) The County itself does not directiy maintain employment records,� but relies upon a variety of independent surveys, as well as upon its own surveys to identify major employers. Source: The Business Press. D-3 The civrlian labor force employment and unemployment sfatistics for the Riverside County labor market from 1987 through January 2003 are shown below. The tota! civilian /abor force as of January 2003 as reported by the Sfate Employment Development Department was 807, 000 and the tofa! civilian unemployment rate was 5.9 percent. Riverside County Labor Market Civilian Labor Force, Employment and Unemployment Year 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003��� Labor Force 387,200 415,000 444,800 550,800 550,000 578,200 584,100 603, 300 611,900 615,600 642, 840 663,600 696,300 730,100 750,700 794,100 807,000 Emp�ovment 362,600 387,500 414,900 512,300 495,200 509,800 514,100 539,800 553,800 565,200 594,770 619,600 658,500 690,000 711,500 745,400 759,600 Unemnlovment 24,700 - 27,500 29,900 38,500 54,800 68,400 70,000 63,500 58,100 50,400 48,080 44,000 - 37,800 40,000 39,200 48,700 47,500 Unemployment Rate 6.4% 6.6 6.7 7.0 10.0 11.8 12.0 10.5 9.5 , 8.2 7.5 6.6 5.4 5.5 5.2 6.1 5.9 (1) For January, 2003 only. Source: State of California Employment Development Department. � � Construction Activity The following tables show a five year summary of the valuation of building permits issued in the City and the County. Permit Valuation New Single-family New Multi-family Res. Alterations/Additions Total Residential New Commercial New Industrial New Other Com. Alterations/Additions Total Nonresidential New Dweflin4 Units Single Family Multiple Family TO7AL CITY OF PALM DESERT Building Permit Valuation (Valuation in Thousands of DQllars) 1998 $175,538.9 825.3 5.451.1 181,815.3 26,926.7 3,600.8 851.0 19.887.9 51,266.4 796 20 816 1999 $150,772.0 0.0 6.610.8 157,382.8 7, 583.4 2,238.2 1,017.0 6.408.3 17,247.0 504 0 504 2000 $136,189.3 14,548.3 7,6$4.4 158,422.0 19,855.9 7,561.9 '316.0 10.686.2 38,419.9 417 116 533 Source: Construction Industry Research Board, Building Permit Summary.. Permit Valuation New Single-family New Multi-family Res. Alterations/Additions Total Residential New Commercial New Industrial New Other Com. Alterations/Additions Total Nonresidential RIVERSIDE COUNTY Building Permit Valuation (Valuation in Thousands of Dollars) 1998 $1,784,078. 1 92,814.4 55,684.7 1,932,577.3 233,263.5 118,308.3 103,420.1 135.949.7 590,941.6 1999 $2,275,765. 9 130,795.9 65.796.0 2,472,357.8 255,646.1 112,238.5 117,198.1 126.Q76.4 611,162.1 2000 $2,519,841. � 4 125,296.2 67.303.7 2,712,441.4 393,509.9 98,621.8 119,978.4 157.802.1 769,912.2 New Dwellina Units Single Family 10,758 12,659 13,630 Multiple Family 1.735 1.920 1.780 TOTAL 12,493 14,579 15,410 Source: Construction Industry Research Board, Building Permit Summary. � 2001 $82,145.0 28,885.0 9.043.2 120,073.2 11,177.0 5,438.4 1,264.2 18.439.4 36,319.0 255 411 666 20d1 $3,051,190. 4 174,628.0 70.849.7 3,296,668.2 287,068.6 74,766.3 152,854.0 143.351.7 658,040.6 16,556 2.458 19,014 2002 $60,526.9 27,001.6 12.957.5 100,486.0 14,707.5 3,012.0 1,160.Q 22.534.2 41,413.7 221 310 531 2002 $3,670,371. 4 165,413.0 87.842.9 3,923,627.4 297,963.6 80,881.6 187,510.6 174.785.7 741,141.5 20,591 2.073 22, 664 Utilities Services Water is supplied to the City by the Coachella Valley Water District. Sewage treafinenf and disposal is provided by the Coachella Vailey Water District. Southern California Gas Company supplies natural gas to the City and electric power is provided by the Southern California Edison Company. Telephone service is available through Verizon. Cable television services are provided by Time Warner. Transportation Inter-City transportation is provided by Greyhound Bus which provides service from its connection points in the City to its lines located outside of the City in addition to the community owned and operated Sunline Bus System which provides service throughout the entire Coachella Valley. IntraCity transpvrtation is provided by Tel-a-Ride and local taxi firms. The City's central highways are California Highway 111 and 74-which connect to US Interstate 10 and to California Highway 63 and 86. A full service airport is located in Palm Springs, twelve miles northwest of the City, with approximately seven carriers providing service. The airport has an 8,500-foot runway and general aviation facilities. There is also a private airport in Bermuda Dunes, eight miles northeast of the City. In addition, shipping is provided by numerous truck carriers which have overnight service to Los Angeles, San Francisco, San Diego and Phoenix. Rail transportation is provided by the Southern Pacific Railroad located in India, 10 miles east of the City, and by Amtrak, which has two stations located in the Coachella Valley. Community 5ervice Facilities The City of Palm Desert provides both pofice and fire protection through contracts with the County of Riverside . Educational services are provided through the Desert Sands Unified School District. The College of Desert is the Coachella Valley's Community College and is located in Palm Desert. A satellite campus of Cal State University, San Bernardino is located on the College of the Desert Campus. Cultural and recreational facilities include sixteen churches. The City of Palm Desert has library services provided by the Riverside County Public Library System. The City has one public library located on the College of the Desert campus. This 43,000 square foot library is jointly used by the College of the Desert and the public library system. �. APPENDIX E SUMMARY OF PRINCIPAL LEGAL DOCUMENTS The following is a brief summary of the provisions of the Indenture and the Loan Agreement. Such summary is not intended to be definitive, and reference is made to the complete documents for the complete terms thereof. E-1 �sl,;� �l� 17):�� FORM OF MUNICIPAL BOND INSURANCE POLICY F-1 APPENDIX G FORM OF CONTINUING DISCLOSURE AGREEMENT This Continuing Disclosure Agreement (the "Disclosure AgreemenY') is executed and delivered by the Palm Desert Redevelopment Agency (the -"Agency") and BNY Western Trust Company, as Trustee (the "Trustee") and MuniFinancial, Inc. (the "Dissemination Agent") in connection with the issuance of $ * Palm Desert Financing Authority, Tax Allocation Refunding Revenue Bonds (Project Area No. 1, As Amended), 2004 Series A(the "Bonds"). The Bonds are being issued pursuant to an Indenture of Trust dated as of June 1, 2004, between the Palm Desert Financing Authority (the "Issuer") and the Trustee (the "Indenture"). The proceeds of the Bonds are being loaned by the Issuer to the Agency pursuant to a Loan Agreement (as defined in the Indenture). The parties agree as follows: SECTION 1. Purpose of the Disclosure Agreement. This Disclosure Agreement is being executed and delivered by the parties for the benefit of the Owners of the Bonds and in order to assist the Participating Underwriter in complying with the Rule (defined below). The Agency acknowledges that the Issuer has undertaken no responsibility with respect to any reports, notices or disclosures provided or required under this Agreement, and has no liability to any person, including any Owner of Bonds, with respect to any such reports, notices or disclosures. SECTION 2. Definitions. In addition to the definitions set forth in the Indenture, which apply to any capitalized term used in this Disclosure Agreement unless otherwise defined in this Section, the following capitalized terms shall have the following meanings: "Annual Report" shall mean any Annual Report provided by the Agency pursuant to, and as described in, Sections 3 and 4 of this Disclosure Agreement. "Disclosure Representative" shall mean the Executive Director of the Agency or his or her designee, or such other person as the Agency shall designate in writing to the Trustee and Dissemination Agent from time to time. "Dissemination AgenY' shall mean MuniFinancial, Inc., acting in its capacity as Dissemination Agent hereunder, or any successor Dissemination Agent designated in writing by the Agency and which has filed with the Trustee a written acceptance of such designation. "Listed Events" shall mean any of the events listed in Section 5(a) of this Disclosure Agreement. "National Repository" shall mean any Nationally Recognized Municipal Securities Information Repository for purposes of the Rule. - "Official StatemenY' shall mean the final Official Statement with respect to the Bonds. "Owners" shall mean the registered owners of the Bonds or, if the Bonds are registered in the name of a depository, the beneficial owners of the Bonds. "Participating Underwriter" shall mean the original underwriters of the Bonds required to comply with the Rule in connection with the offering of the Bonds. G-1 "Repository" shall mean each National Repository and each State Repository. "Rule" shall mean Rule 15c2-12(b)(5) adopted by the Securities and Exchange Commission under the Securities Exchange Act of 1934. "State Repository" shall mean any public or private repository or entity designated by the State as a state repository for the purpose of the Rule. As of the date of this Agreement, there is no State Repository. SECTION 3. Provision of Annual Reports. (a) The Agency shall, or upon written direction shall cause the Dissemination Agent to, not later than six months after the end of the Agency's Fiscal Year (which currently would be December 31 of each year), commencing with the report for the 2003-2004 Fiscal Year, provide to each Repository an Annual Report which is consistent with the requirements of Section 4 of this Disclosure Agreement. Not later than fifteen (15) Business Days prior to said date, the Agency shall provide the Annual Report to the Dissemination Agent and the Trustee. In each case, the Annual Report may be submitted as a single document or as separate documents comprising a package, and may cross-reference other information as provided in Section 4 of this Disclosure Agreement; provided that the audited financial statements of the Agency may be submitted separately from the balance of the Annual Report.- The Agency shall provide a written certification with each Annual Report furnished to the Dissemination Agent and the Trustee to the effect that such Annual Report constitutes the Annual Report required to be furnished by the Agency hereunder. The Dissemination Agent and Trustee may conclusively rely upon such certification of the Agency. (b) If the Dissemination Agent is unable to verify that an Annual Report has been provided to the Repositories by the date required in subsection (a), the Dissemination Agent shall send a notice to each National Repository or to the Municipal Securities Rulemaking Board and to the appropriate State Repository, if any, in substantially the form attached as Exhibit A. (c) The Dissemination Agent shall: (i) determine each year prior to the date for providing the Annual Report the name and address of each National Repository and each State Repository, if any; and (ii) if the Annual Report has been furnished to the Dissemination Agent, file a report with the Agency, the Issuer and the Trustee certifying that the Annual Report has been provided pursuant to this Disclosure Agreement, stating the date it was provided, and listing all the Repositories to which it was provided. SECTION 4. Content of Annual Reports. The Agency's Annual Report shall contain or incorporate by reference the following: (i) the audited financial- statements of the Agency, prepared in accordance with generally accepted accounting principles in effect from time to time. If the Agency's audited financial statements are not available by the time the Annual Report is required to be filed pursuant to Section 3(a), the Annual Report shall contain unaudited financial statements in a format similar to the financial statements contained in the Official Statement, and the audited G-2 financial statements shall be filed in the same manner as the Annual Report when they become available. (ii) An update of the tabular information set forth in the Official Statement under the captions "TAX REVENUES -- Schedule of Historical Tax Revenues" and "-- Top Fifteen Taxpayers." Any or all of the items listed above may be included by specific reference to other documents, including official statements of debt issues of the Agency or related public entities, which have been submitted to each of the Repositories or the Securities and Exchange Commission. If the document incorporated by reference is a final official statement, it must be available from the Municipal Securities Rulemaking Board. The Agency shall clearly identify each such other document so incorporated by reference. SECTION 5. Reporting of Material Events. (a) Pursuant to the provisions of this Section 5, the Agency shall give, or cause to be given, notice of the occurrence of any of the following events with respect to the Bonds, if material: (1) principal and interest payment delinquencies; (2) non-payment related defaults; (3) unscheduled draws on debt service reserves reflecting financial difficulties; (4) unscheduled draws on credit enhancements reflecting financial difficulties; . (5) substitution of credit or liquidity providers, or their failure to perform; and (6) adverse tax opinions or events adversely affecting the tax-exempt status of the Bonds; (7) modifications to rights of security holders; (8) unscheduled bond calls; (9) defeasances; (10) release, substitution or sale of property securing repayment of the securities; and (11) rating changes. . (b) The Trustee shall, promptly upon obtaining actual knowledge of the occurrence of any of the Listed Events contact the Disclosure Representative, inform such person of the event, and request that the Agency promptly notify the Dissemination Agent in writing whether or not to report the event pursuant to subsection (f) and promptly notify the Trustee in writing whether or not to report the event to the Owners (unless notice to the Owners is required by either of the Indentures). For purposes of this Disclosure Agreement, "actual knowledge" of the occurrence of such Listed Events shall mean actual knowledge by the officer at the Trust Office of the Trustee with regular responsibility for the administration. of the Indenture. (c) Whenever the Agency obtains knowledge of the occurrence of a Listed Event, whether because of a notice from the Trustee pursuant to subsection (b) or otherwise, the Agency shall as soon as possible determine if such event is material under applicable federal securities laws. G-3 (d) If the Agency has determined that knowledge of the occurrence of a Listed Event is material, the Agency shall promptly notify the Dissemination Agent and the Trustee in writing. Such notice shall instruct the Dissemination Agent to report the occurrence pursuant to subsection (f) and shall instruct the Trustee to report the occurrence to Owners. (e) If in response to a request under subsection (b), the Agency determines that the Listed Event is not material, the Agency shall so notify the Dissemination Agent and the Trustee in writing and instruct the Dissemination Agent and the Trustee not to report the occurrence. (f) If the Dissemination Agent has been instructed by the Agency to report the occurrence of a Listed Event, the Dissemination Agent shall file a notice of such occurrence with the Municipal Securities Rulemaking Board and each State Repository, with a copy to the Agency. Notwithstanding the foregoing, notice of Listed Events described in subsections (a)(8) and (9) need not be given under this subsection any earlier than the notice (if any) of the underlying event is given to the Owners of affected Bonds pursuant to the Indenture. SECTION 6. Termination of Reporting Obligation. The obligations of the Agency, the Trustee and the Dissemination Agent under this Disclosure Agreement shall terminate upon the defeasance, prior redemption or payment in full of all of the Bonds; provided that the obligations of the Trustee and the Dissemination Agent hereunder shall also terminate upon the resignation or removal of such Trustee or Dissemination Agent. SECTION 7. Dissemination Agent. The Agency may, from time to time, appoint or engage a Dissemination Agent to assist it in carrying out its obligations under this Disclosure Agreement, and may discharge any such Dissemination Agent, with or without appointing a successor Dissemination Agent. The initial Dissemination Agent shall be MuniFinancial, Inc. The Dissemination Agent may resign its duties hereunder at any time upon written notice to the Agency. SECTION 8. Amendment. Notwithstanding any other provision of this Disclosure Agreement, the parties may amend this Disclosure Agreement (and the Trustee and the Dissemination Agent shall agree to any amendment so requested by the Agency provided that neither the Trustee nor the Dissemination Agent shall be obligated to enter into any such amendment that modifies or increases its duties or obligations hereunder) only if: (a) the amendment is made in connection with a change in circumstances that arises from a change in legal requirements, change in law, or change in the identity, nature, or status of the Agency, or type of business conducted; (b) this Disclosure Agreement, as amended, would have complied with the requirements of the Rule at the time of sale of the Bonds, after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances; (c) the amendment does not materially impair the interests of Owners, as determined by parties unaffiliated with the Agency (such as, but without limitation, the Agency's bond counsel) or by Owners' consent pursuant to Section 7.01 of the Indenture; and (d) the annual financial information containing (if applicable) the amended operating data or financial information will explain, in narrative form, the reasons for the amendment and the "impact" (as that word is used in the letter from the st�ff of the Securities and Exchange G-4 Commission to the National Association of Bond Lawyers dated June 23, 1995) of the change in the type of operating data or financial information being provided. SECTION 9. Additionat Information. Nothing in this Disclosure Agreement shall be deemed to prevent the Agency from disseminating any other information, using the means of dissemination set forth in this Disclosure Agreement or any other means of communication, or including any other information in any Annual Report or notice of occurrence of a Listed Event, in addition to that which is required by this Disclosure Agreement. If the Agency chooses to include any information in any Annual Report or notice of occurrence of a Listed Event, in addition to that which is specifically required by this Disclosure Agreement, the Agency shall have no obligation under this Agreement to update such information or incfude it in any future Annua{ Report or notice of occurrence of a Listed Event. SECTION 10. Default. In the event of a failure of the Agency to comply with any provision of this Qisclosure Agreement, the Trustee shall, at the written direction of any Participating Underwriter or the Owners of a majority in aggregate principal amount of Outstanding Bonds (but only to the extent funds have been provided to it or it has been otherwise indemnified to its satisfaction from any cost, liability, expense or additional charges of the Trustee whatsoever, including, without limitation, fees and expenses of its attorneys), or any Owner may, take such actions as may be necessary and appropriate, including seeking mandate or specific performance by court order, to cause the Agency, the Trustee or the Dissemination Agent, as the case may be, to comply with its obligations under this Disclosure Agreement; provided that any such action may be instituted only in the Federal or State Court located in the County of Los Angeles, State of California and no remedy other than specific performance may be sought or granted. A default under this Disclosure Agreement shall not be deemed an Event of Default under the Indenture or the Loan Agreements, and the sole remedy under this Disclosure Agreement in the event of any failure of the Agency, the Trustee or the Dissemination Agent to comply with this Disclosure Agreement shafl ba an action to compel performance. SECTION 11. Duties, Immunities and Liabilities of.Trustee and Dissemination Agent. The Dissemination Agent shall have only such duties as are specifically set forth in this Disclosure Agreement, and the Agency agrees to indemnify and save the Dissemination Agent and the Trustee, their officers, directors, employees and agents, harmless against any loss, expense and liabilities which it may incur arising out of or in the exercise or performance of its powers and duties hereunder, including the costs and expenses (incfuding attorneys fees) of defending against any c4aim of liability, but excluding liabilities due to the Dissemination Agent's or Trustee's negligence or wilful misconduct. The Dissemination Agent may rely on and shall be protected in acting or refraining from acting upon any direction from the Issuer or an opinion of nationally recognized bond counsel. The Dissemination Agent and the Trustee shall be paid compensation by the Agency for its services provided hereunder in accordance with its schedule of fees as amended from time to time and all expenses, legal fees and advances made or incurred by the Dissemination Agent in the performance of its duties hereunder. The Dissemination Agent and the Trustee shall have no duty or obligation to review any information provided to them by the Agency hereuntler and sha11 not be deemed to be acting in any fiduciary capacity for the Authority, the Agency, the Owners, or any other party. The obtigations of the Agency under this Section shall survive resignation or removal of the Dissemination Agent and payment of the Bonds. No person shall have any right to commence any action against the Dissemination Agent seeking any remedy other than to compel specific performance of this Agreement. The Dissemination Agent shall not be liable under any circumstances for monetary damages to any person for any breach of this Agreement. G-5 SECTION 12. Beneficiaries. This Disclosure Agreement shall inure solely to the benefit of the Issuer, the Agency, the Trustee, the Dissemination Agent, the Participating Underwriter and Owners from time to time of the Bonds, and shall create no rights in any other person or entity. SECTION 13. Notices. Notices should be sent in writing to the following addresses. The following information may be conclusively relied upon until changed in writing. Agency: Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, California 92260 (760) 346-0611 (760) 346-0574 Fax Dissemination Agent: MuniFinancial, Inc. 27368 Via lndustria, Suite 110 Temecula, California 92590 (909) 587-3500 (909) 587-3510 fax � Trustee: BNY Western Trust Company 700 South Flower Street, Suite 500 Los Angeles, CA 90017-4104 (213) 630-6237 (213) 630-6215 Fax G-6 SECTION 14. Counterparts. This Disclosure Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. PALM DESERT REDEVELOPMENT AGENCY � Executive Director BNY WESTERN TRUST COMPANY, as Trustee By Authorized Officer MUNIFINANCIAL, INC., as Dissemination Agent By Authorized Officer G-7 EXHIBIT A NOTICE OF FAILURE TO FILE ANNUAL REPORT Name of Obligated Party: Palm Desert Redevelopment Agency (the "Agency") Name of Bond Issue: $ * Palm Desert Financing Authority, Tax Ailocation Refunding Revenue Bonds (Project Area No. 1, As Amended), 2004 Series A Date of Delivery: , 2004 NOTICE IS HEREBY GIVEN that the Agency has not provided an Annual Report with respect to the above-named Bonds as required by Section 3 of the Continuing Disclosure Agreement dated as of June 1, 2004 between the Agency and BNY Western Trust Company. [The Agency anticipates that the Annual Report will be filed by .] Dated: MuniFinancial, Inc. on behalf of the Agency cc: Executive Director, Palm Desert Redevelopment Agency G-8 . � BOOK-ENTRY SYSTEM The information set forth below has been provided by DTC. The Authority and the Underwriters make no representation as to the accuracy or the completeness of such information. All Beneficial Owners should confirm the following information with DTC or the DTC Participants. The Depository Trust Company ("DTC"), New York, NY, will act as securities depository for the Bonds. The Bonds will be issued as fully registered securities registered in the name of Cede & Co. (DTC's partnership nominee) or such other name as may be requested by an authorized representative of DTC. One fully registered Bond certificate will be issued for each maturity of the Bonds, in the aggregate principal amount of such maturity, and will be deposited with DTC. DTC, the world's largest depository, is a limited-purpose trust company organized under the New York Banking Law, a"banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a"clearing corporation" within the meaning of the New York Uniform Commercial Code, and a"clearing agency" registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds and provides asset servicing for over two million issues of U.S. and non-U.S. equity issues, corporate and municipal debt issues, and money market instruments from over 85 countries that DTC's participants ("Direct Participants") deposit with DTC. DTC also facilitates the post-trade settlement among Direct Participants of sales and other securities transactions in deposited securities, through electronic computerized book-entry transfers and pledges between Direct Participants' accounts. This eliminates the need for physical movement of securities certificates. Direct Participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a wholly- owned subsidiary of The Depository Trust & Clearing Corporation ("DTCC"). DTCC, in turn, is owned by a number of Direct Participants of DTC and members of the National Securities Clearing Corporation, Government Securities Clearing Corporation, MBS Clearing Corporation, and Emerging Markets Clearing Corporation (NSCC, GSCC, MBSCC, and EMCC, are also subsidiaries of DTCC), as well as by the New York Stock Exchange, Inc., the American Stock Exchange LLC, and the National Association of Securities Dealers, Inc. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, and clearing corporations that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly ("Indirect Participants"). DTC has Standard & Poor's highest rating: AAA. The DTC Rules applicable to its Participants are on file with the Securities and Exchange Commission. More information about DTC can be found at www.dtcc.com. Purchases of Bonds under the DTC system must be made by or through Direct Participants, which will receive a credit for the Bonds on DTC's records. The ownership interest of each actual purchaser of each Bond ("Beneficial Owner") is in turn to be recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive written confirmation from DTC of their purchase, but Beneficial Owners are expeeted to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the Bonds are to be accomplished by entries made on the H-1 books of Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in Bonds, except in the event that use of the book-entry system for the Bonds is discontinued. To facilitate subsequent transfers, all Bonds deposited by Participants with DTC are registered in the name of DTC's partnership nominee, Cede & Co. or such other name as requested by an authorized representative of DTC. The deposit of Bonds with DTC and their registration in the name of Cede & Co. or such other DTC nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the Bonds; DTC's records reflect only the identity of the Direct Participants to whose accounts such Bonds are credited, which may or may not be the Beneficial Owners. The Participants will remain responsible for keeping account of their holdings on behalf of their customers. Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Redemption notices shall be sent to DTC. If less than all of the Bonds within an issue are being redeemed, DTC's practice is to determine by lot the amount of the interest of each Direct Participant in such issue to be redeemed. Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent or vote with respect to Bonds. Under its usual procedures, DTC mails an Omnibus Proxy to the Authority as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct Participants to whose accounts Bonds are credited on the record date (identified in a listing attached to the Omnibus Proxy). Principal and interest payments on the Bonds will be made to Cede &Co. or such other nominee as may be requested by an authorized representative of DTC. DTC's practice is to credit Direct Participants' accounts upon DTC's receipt of funds and corresponding detail information from the Authority or the Trustee, on payable date in accordance with their respective holdings shown on DTC's records. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in �street name," and will be the responsibility of such Participant and not of DTC (nor its nominee), the Trustee, or the Authority, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of principal and interest to Cede &Co. (or such other nominee as may be requested by an authorized representative of DTC) is the responsibility of the Authority or the Trustee, disbursement of such payments to Direct Participants is the responsibility of DTC, and disbursement of such payments to Beneficial Owners is the responsibility of Direct and Indirect Participants. DTC may discontinue providing its services as securities depository with respect to the Bonds at any time by giving reasonable notice to the Authority or the Trustee. Under such circumstances, in the event that a successor securities depository is not obtained, Bond certificates are required to be printed and delivered. The Authority may decide to discontinue use of the system of book-entry transfers through DTC (or a successor securities depository). In that event, Bond certificates will be printed and delivered. H-2